MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be
                                                                    Jun 24 2020, 6:20 am
regarded as precedent or cited before any
court except for the purpose of establishing                            CLERK
                                                                    Indiana Supreme Court
the defense of res judicata, collateral                                Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Madison, Indiana                                         Attorney General of Indiana
                                                         Steven Hosler
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephon Moore,                                           June 24, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2573
        v.                                               Appeal from the Jennings Circuit
                                                         Court
State of Indiana,                                        The Honorable Jon W. Webster,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         40C01-1904-MR-1



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020               Page 1 of 13
                                               Case Summary
[1]   Stephon Moore appeals his convictions and ninety-five-year sentence for

      murder and attempted murder, a Level 1 felony. We affirm.


                                                     Issues
[2]   Moore raises two issues on appeal, which we restate as follows:


                 I.       Whether the State presented sufficient evidence to rebut
                          Moore’s claim of self-defense.


                 II.      Whether Moore’s sentence is inappropriate in light of the
                          nature of his offenses and his character.


                                                     Facts
[3]   On the afternoon of April 15, 2019, Frank Bailey (“Frank”) went to the North

      Vernon residence shared by Kinya Sparks and her nephew, Larry Evans

      (“Larry”). The residence was equipped with four surveillance cameras and a

      digital video recorder. Taylor Wade was present during Frank’s visit. Also

      present were Leslie McGuire; Taylor Bryson; Donavan Booker; and Larry’s

      father, Richard Evans (“Richard”), 1 who was repairing a truck on the premises.


[4]   Wade confronted Frank for allegedly touching Wade’s girlfriend

      inappropriately when Wade was incarcerated. Wade punched Frank several




      1
          Richard is Sparks’ brother-in-law.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020   Page 2 of 13
      times; and Wade and Larry “chased Frank down the road.” Tr. Vol. III p. 100.

      Frank “said he was coming back.” Id. at 101.


[5]   At the time, Moore 2 and Fashion Ellis were visiting Frank’s mother, Junara

      Bailey, in Madison. Moore was dating Junara, who sometimes lived with her

      daughter, Breaunna McAuliff (“Breaunna”). Breaunna is Frank’s sister.

      Moore and Breaunna’s husband were friends. Moore and Ellis hail from

      Louisville, Kentucky. The area code for Louisville is 502. Id. at 17.


[6]   Frank’s sisters, Destiny Bailey (“Destiny”) and Breaunna, learned that Frank

      was “jumped” and denied a “fair fight[.]” Id. at 141, 168. Breaunna and/or

      her husband sent threatening messages to Larry via Facebook Messenger. Also,

      Destiny sent Larry a message stating that “5-0-2 boys are coming.” Id. Destiny

      arranged to drive from Madison to North Vernon, pick Frank up, and take

      Frank to Larry’s house for a “fair fight.” Id. at 168.


[7]   Later that same evening, Destiny drove Frank, Moore, and Ellis to Larry’s

      house in Moore’s silver Chrysler 200. Frank reportedly asked Moore and Ellis

      to come to ensure the fight was fair and that Frank did not get “jumped.” Id. at

      170. En route, Moore, who was armed with a handgun, asked whether anyone

      at Larry’s house had firearms. Frank responded that there were only

      mechanics’ tools at Larry’s house.




      2
          Certain witnesses identify Moore by his nickname, “Friendly,” in the record. See Tr. Vol. III pp. 140, 162.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020                       Page 3 of 13
[8]    Shortly before 7:00 P.M., Richard left Larry’s house to get a fuel line tool.

       Around that time, Destiny, Frank, Moore, and Ellis arrived at Larry’s house.

       Larry, Donavan, and Bryson came outside. Wade was not there, but Larry still

       agreed to fight. Before the fight, Moore “pulled a gun . . . [and] said ‘what’s up,

       what’s up then.’” Id. at 103. Larry and Frank began to fight. Around that

       time, Richard returned to the scene with the fuel line tool and saw Larry and

       Frank fighting; Richard stood beside his vehicle and watched the fight. The

       commotion woke Sparks, who came outside and stood next to Destiny.


[9]    At one point, Larry was dominating the fight and was “on top of” Frank. Id. at

       106. Moore intervened by kicking Larry off Frank. Seeing this, Donavan

       began to argue with Ellis and Moore. Ellis either lunged at or swung to strike

       Donavan. Donavan was holding a breaker bar and used the breaker bar to

       block Ellis’ blow. Donavan lost his footing and staggered backwards.

       Donavan then regained his footing, approached Ellis, and assumed a defensive

       stance. Moore approached Donavan, pulled the handgun, and chambered a

       round. Donavan saw the gun and turned to flee. Donavan took a few steps

       away from Moore, when Moore shot Donavan in the back.


[10]   Larry was standing approximately five feet from Donavan when Moore shot

       Donavan. Larry turned and ran toward the residence. Moore shot at Larry,

       and a bullet hit the ground behind Larry. Moore then turned to shoot at

       Richard, but Moore’s gun jammed. The video surveillance system at the

       residence captured the incident.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020   Page 4 of 13
       After the shooting, Destiny drove Moore, Ellis, and Frank from the scene.

       Moore, Ellis, and Frank fled to Louisville, where they were arrested the

       following day. On April 16, 2019, the State charged Moore with murder; and

       two counts of attempted murder, Level 1 felonies, regarding Larry and Richard.

       The State subsequently amended the charging information to add a count of

       theft of a firearm, a Level 6 felony. 3 The trial court conducted a five-day jury

       trial that commenced on September 23, 2019. Sparks, Larry, and Richard

       testified that Moore did not face any threat of harm from Donavan when

       Moore shot Donavan.


[11]   At the close of the trial, the trial court read an instruction on self-defense to the

       jury. After deliberations, the jury convicted Moore of murder and the

       attempted murder of Larry Evans; and the jury found Moore not guilty of the

       attempted murder of Richard Evans and theft of a firearm.


[12]   At Moore’s sentencing hearing on October 29, 2019, the trial court identified

       the following aggravating factors: (1) Moore has not obtained his high school

       diploma or GED; (2) Moore committed the instant offenses with a stolen

       handgun and did not have a handgun permit or license to carry a handgun; (3)

       Moore “had a long time to consider and reflect upon entering into a dispute

       with a loaded handgun before doing so”; (4) Moore’s nine prior misdemeanor

       convictions; (5) Moore committed the instant offenses while he was on




       3
        The State’s second amended charging information, filed on May 13, 2019, is the operative charging
       document.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020                 Page 5 of 13
       probation; (6) the emotional impact on Donavan Booker’s family; and (7) the

       emotional impact on Larry Evans. Conf. App. Vol. III p. 60. As mitigating

       circumstances, the trial court identified: (1) the impact of Moore’s incarceration

       on his four children; (2) Moore’s learning disability; and (3) Moore’s prior

       attempts at substance abuse rehabilitation.


[13]   The trial court imposed consecutive sentences as follows: for murder, sixty

       years executed in the Department of Correction (“DOC”); and for attempted

       murder, thirty-five years executed. 4 Moore now appeals.


                                                        Analysis
                                                   I.        Self-Defense

[14]   Moore argues that the State failed to present sufficient evidence to rebut his self-

       defense claim. The standard of review for a challenge to the sufficiency of

       evidence to rebut a claim of self-defense is the same as the standard for any

       sufficiency of the evidence claim. Wilson v. State, 770 N.E.2d 799, 801 (Ind.

       2002). When analyzing a claim of insufficient evidence to support a conviction,

       we must consider only the probative evidence and reasonable inferences

       supporting the judgment. Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016). “It is

       the factfinder’s role, not that of appellate courts, to assess witness credibility

       and weigh the evidence to determine whether it is sufficient to support a




       4
        In addition to court costs and a public defender fee, the trial court ordered Moore to make restitution for
       Donavan Booker’s funeral expenses.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020                      Page 6 of 13
       conviction.” Id. The evidence does not have to overcome every reasonable

       hypothesis of innocence, and it is sufficient if an inference may reasonably be

       drawn to support the conviction. Id.


[15]   A valid claim of self-defense is legal justification for an otherwise criminal act.

       Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). Indiana Code Section 35-41-

       3-2(c) provides:


               A person is justified in using reasonable force against any other
               person to protect the person or a third person from what the
               person reasonably believes to be the imminent use of unlawful
               force. However, a person:


                        (1) is justified in using deadly force; and


                        (2) does not have a duty to retreat;


               if the person reasonably believes that that force is necessary to
               prevent serious bodily injury to the person or a third person or
               the commission of a forcible felony. No person shall be placed in
               legal jeopardy of any kind whatsoever for protecting the person
               or a third person by reasonable means necessary.


[16]   To prevail on a self-defense claim, the defendant must show that he: (1) was in

       a place where he had a right to be; (2) acted without fault; and (3) was in

       reasonable fear or apprehension of bodily harm. Henson v. State, 786 N.E.2d

       274, 277 (Ind. 2003). “When a claim of self-defense is raised and finds support

       in the evidence, the State has the burden of negating at least one of the

       necessary elements.” Wilson, 770 N.E.2d at 800. “The State may meet this


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020   Page 7 of 13
       burden by rebutting the defense directly, by affirmatively showing the defendant

       did not act in self-defense, or by simply relying upon the sufficiency of its

       evidence in chief.” Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). “If a

       defendant is convicted despite his claim of self-defense, this Court will reverse

       only if no reasonable person could say that self-defense was negated by the

       State beyond a reasonable doubt.” Wilson, 770 N.E.2d at 800-01.


[17]   “The amount of force that an individual may use to protect himself must be

       proportionate to the urgency of the situation” facing the individual. Pinkston v.

       State, 821 N.E.2d 830, 842 (Ind. Ct. App. 2004), trans. denied. “When a person

       uses more force than is reasonably necessary under the circumstances, the right

       of self-defense is extinguished.” Id.


[18]   Moore maintains that the State did not “disprove any one of the elements of

       self-defense.” Moore’s Br. p. 17. We cannot agree. The record reveals that the

       State presented eyewitness testimony from Sparks, Richard, and Larry, which

       was corroborated by video surveillance evidence, that Moore: (1) went, armed,

       to the scene of the planned fistfight; (2) brandished his gun before the fight

       began; (3) entered the fight by kicking Larry off Frank; (4) brandished his gun a

       second time when Donavan defended himself from Ellis; (5) shot Donavan

       after Donavan saw the gun and turned to flee; and (6) shot at Larry’s back as

       Larry ran toward the residence. Three eyewitnesses testified that Moore faced

       no threat of bodily harm when he shot Donavan and when he shot at Larry.

       The State, thus, negated two elements of Moore’s self-defense claim—namely,



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020   Page 8 of 13
       that Moore acted without fault; and that Moore acted in reasonable fear or

       apprehension of bodily harm.


[19]   The evidence in the record is, thus, sufficient to rebut Moore’s claim of self-

       defense and, consequently, to support Moore’s conviction. Moore’s argument

       is no more than an invitation to reweigh the surveillance video evidence and the

       eyewitnesses’ credibility, which we cannot do. See Sallee, 51 N.E.3d at 133.


                                     II. Inappropriateness of Sentence

[20]   Moore also argues that his ninety-five-year aggregate sentence is inappropriate

       in light of the nature of his offenses and his character. Indiana Appellate Rule

       7(B) provides that this Court may revise a sentence authorized by statute if,

       after due consideration of the trial court’s decision, we find that the sentence “is

       inappropriate in light of the nature of the offense and the character of the

       offender.” The defendant must persuade us that his or her sentence is

       inappropriate. Wilson v. State, 966 N.E.2d 1259, 1266 (Ind. Ct. App. 2012)

       (citing Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)), trans. denied.


[21]   In Indiana, trial courts can tailor an appropriate sentence to the circumstances

       presented; and the trial court’s judgment receives “considerable deference.”

       Sanders v. State, 71 N.E.3d 839, 844 (Ind. 2017) (quoting Cardwell v. State, 895

       N.E.2d 1219, 1222 (Ind. 2008)). In conducting our review, we do not look to

       see whether the defendant’s sentence is appropriate or “if another sentence

       might be more appropriate; rather, the question is whether the sentence




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020   Page 9 of 13
       imposed is inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894

       N.E.2d 265, 268 (Ind. Ct. App. 2008)).


[22]   When determining whether a sentence is inappropriate, the advisory sentence is

       the starting point the legislature has selected as an appropriate sentence for the

       crime committed. Childress, 848 N.E.2d at 1081. Regarding Moore’s murder

       conviction, the sentencing range for murder is forty-five to sixty-five years, with

       an advisory sentence of fifty-five years. See Ind. Code § 35-50-2-3. Here, the

       trial court imposed a sixty-year executed sentence for Donavan’s murder. In

       regards to Moore’s attempted murder conviction, the sentencing range for a

       Level 1 felony is between twenty and forty years, with the advisory sentence

       being thirty years. I.C. § 35-50-2-4(b). The trial court sentenced Moore to

       thirty-five years, executed for the attempted murder of Larry. Notably, the trial

       court did not impose a maximum sentence on either count; and, although

       Moore faced a potential sentence of 105 years, the trial court imposed a ninety-

       five-year term.


[23]   Our analysis of the “nature of the offense” requires us to look at the extent and

       depravity of the offense rather than comparing the instant facts to other cases.

       Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002). The nature of

       Moore’s offenses is as follows: Moore literally took a gun to what was to be a

       “fair” fistfight and brandished the gun before the fight began. During a physical

       altercation that Ellis initiated with Donavan, Moore interjected himself by

       kicking Larry and by brandishing his gun a second time. Although Donavan



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020   Page 10 of 13
       saw the gun, turned to flee, and began to drop the breaker bar, Moore fired the

       gun and shot Donavan in the back. Moore also shot at Larry as Larry fled.


[24]   Our review of the character of an offender requires us to consider the

       defendant’s background, criminal history, age, and remorse. See James v. State,

       868 N.E.2d 543, 548-49 (Ind. Ct. App. 2007). “The significance of a criminal

       history in assessing a defendant’s character is based on the gravity, nature, and

       number of prior offenses in relation to the current offense.” Boling v. State, 982

       N.E.2d 1055, 1060 (Ind. Ct. App. 2013). Even a minor criminal history is a

       poor reflection of a defendant’s character. Moss v. State, 13 N.E.3d 440, 448

       (Ind. Ct. App. 2014).


[25]   Moore was thirty-one years old at the time of his sentencing hearing. Moore’s

       adult 5 criminal history includes convictions for the following misdemeanor

       offenses: possession of marijuana (2010); possession of a controlled substance

       (2010); carrying a concealed deadly weapon (2015); harassment by physical

       contact without injury (2017, 2019); possession of methamphetamine (2019);

       possession of marijuana (2019, twice); and possession of drug paraphernalia

       (2019). 6 Moore is rated in “HIGH risk category to reoffend” on the Indiana




       5
           Moore has no juvenile criminal history.
       6
         The pre-sentence investigation reports provides that, at the time of Moore’s sentencing for the instant
       offenses, he was subject to a Clark County arrest warrant regarding pending charges of residential breaking
       and entering, a Level 6 felony; interference with the reporting of a crime, a Class A misdemeanor; and
       criminal mischief, a Class B misdemeanor. The Clark County offenses were allegedly committed thirteen
       days before the instant offenses on April 2, 2019.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020                   Page 11 of 13
       Risk Assessment System (“IRAS”) scale. Conf. App. Vol. III p. 20. Moore’s

       criminal history reflects poorly on his character.


[26]   Given his history of run-ins with the justice system, it is troubling that Moore

       admits that he “is more likely to engage in risky behavior when he is with other

       people . . . .” Id. This mob mentality figured significantly in Donavan’s death

       and Larry’s attempted murder, which occurred because Moore allowed himself

       to be drawn into Frank’s dispute with people whom Moore did not know and

       then resorted to deadly violence. Lastly, we note Moore’s significant history of

       substance abuse. Moore “began drinking and using pills at the age of fifteen”

       and “began smoking pot at the age of sixteen and progressed to cocaine and

       ecstasy in his twenties[.]” Id. Despite Moore’s past completion of two drug

       rehabilitation programs, Moore admits that he “used ecstasy, [P]ercocet[ ], and

       marijuana on the day of the present offense[s].” Id. at 19.


[27]   Based on the foregoing, nothing about the nature of Moore’s offenses or his

       character persuades us that his aggravated sentence is inappropriate.


                                                 Conclusion
[28]   The State presented sufficient evidence to rebut Moore’s claim of self-defense.

       Moore’s sentence is not inappropriate in light of the nature of his offenses and

       his character. We affirm.


[29]   Affirmed.


       Riley, J., and Mathias, J., concur.


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Court of Appeals of Indiana | Memorandum Decision 19A-CR-2573 | June 24, 2020   Page 13 of 13
