MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        Feb 10 2016, 6:13 am

regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Patricia Caress McMath                                   Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Anthony Middleton,                                       February 10, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1507-CR-901
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark Stoner,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G06-1408-MR-40262



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-901 |February 10, 2016        Page 1 of 8
[1]   Anthony Middleton appeals his conviction of and sentence for murder. 1 He

      argues the State did not sufficiently rebut his claim of self-defense and his

      sentence is inappropriate based on his character and the nature of the crime.

      We affirm.


                                     Facts and Procedural History
[2]   Middleton bought drugs from Timothy Guyton multiple times on August 15,

      2014. It was common for Guyton or his girlfriend, Michellee, 2 to hold a gun

      when answering the door, take the purchaser to the kitchen, put down the gun,

      and weigh out the desired amount of crack.


[3]   On August 16, Middleton knocked on Guyton’s door and Michellee answered

      the door holding a gun. Middleton asked to buy a gram of crack and Michellee

      said she couldn’t sell him that amount. Middleton got “a little upset,” (Tr. at

      111), went to the room where Guyton was sleeping, and started to shake

      Guyton to wake him up.


[4]   Guyton eventually agreed to sell Middleton $40 worth of crack. Sallie Proctor,

      Michellee’s friend, was sitting on the steps near the kitchen. Guyton went to

      the kitchen to weigh the drugs, and Michellee placed the gun on the counter

      next to the scales. Guyton picked up the gun, put it in his right back pocket,




      1
          Ind. Code § 35-42-1-1 (2007).
      2
       The parties and the Record list three different last names for Michellee - Watson, Rodenbeck, and Foush.
      To minimize confusion, we will refer to Michellee by her first name.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-901 |February 10, 2016          Page 2 of 8
      and said, “Let me get my piece before somebody grabs it.” (Id. at 70.)

      Middleton said, “What are you going to do pop me, cuz?” (Id. at 71.)

      Middleton then “took his right arm and he reached around . . . to reach

      [Guyton’s] back pocket.” (Id. at 72.)


[5]   Guyton “raised his left arm” and “swung around,” (id. at 73), to prevent

      Middleton from taking the gun. Middleton held Guyton in a “bear hug,” (id. at

      117), and the two men wrestled to the floor. When they fell, the gun dropped

      to the floor. Middleton grabbed the gun and pointed it at Guyton, who put his

      arms in the air. Middleton said to Guyton, “Back up, I don’t want to hurt

      you.” (Id. at 74-5.) Proctor fled the room and Michellee left the kitchen to call

      for help.


[6]   Michellee returned to the kitchen and saw Middleton beating Guyton in the

      head with the gun. She decided to call 911 and left the house. As she left the

      house, she heard a single gunshot and Guyton yelled, “Somebody help me.”

      (Id. at 133.) When officers arrived on the scene, Guyton was dead and the

      officers arrested Middleton.


[7]   During trial, Middleton offered an affirmative defense of self-defense. The jury

      returned a guilty verdict on Middleton’s murder charge. The trial court

      sentenced Middleton to sixty years for murder.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-901 |February 10, 2016   Page 3 of 8
                                     Discussion and Decision
                                                 Self-Defense

[8]   Self-defense is a legal justification for what would otherwise be a criminal act.

      Brown v. State, 738 N.E.2d 271, 273 (Ind. 2000). A person is justified in using

      “reasonable force” against another to protect himself from what he reasonably

      believes to be the imminent use of unlawful force. Id.; see also Ind. Code § 35-

      41-3-2 (use of reasonable force to defend self). To prevail on a claim of self-

      defense, the defendant must present evidence that he: (1) was in a place he had

      a right to be; (2) did not provoke, instigate, or participate willingly in the

      violence; and (3) had a reasonable fear of death or great bodily harm. Wilson v.

      State, 770 N.E.2d 799, 800 (Ind. 2002). An initial aggressor or a mutual

      combatant, whether or not the initial aggressor, must withdraw from the

      encounter and communicate the intent to do so to the other person before he

      may claim self-defense. Id. at 801.


[9]   When a defendant claims he acted in self-defense, the State must disprove or

      rebut at least one element of self-defense beyond a reasonable doubt. Carroll v.

      State, 744 N.E.2d 432, 433 - 34 (Ind. 2001). The State may do so by presenting

      additional evidence or by relying on the evidence in its case-in-chief. Id. 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, 770 N.E.2d at 801. We neither reweigh the evidence nor judge

      the credibility of witnesses. Id. If there is sufficient evidence of probative value



      Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-901 |February 10, 2016   Page 4 of 8
       to support the conclusion of the trier of fact, then the verdict will not be

       disturbed. Id.


[10]   Middleton argues the State did not rebut his claim of self-defense. At trial,

       Middleton claimed he felt threatened when Guyton picked the gun up off the

       counter and said, “Let me get my piece before somebody grabs it.” (Tr. at 70.)

       Middleton argued he withdrew from the fight and attempted to end it when he

       said to Guyton, “I don’t want to hurt you. I don’t want to shoot you.” (Id. at

       344.) Middleton argues, “[t]here is simply no evidence presented by the State

       as to what happened immediately before Middleton was hitting Guyton on the

       head or immediately after” because Proctor and Michellee, the only two

       witnesses, had left the room. (Br. of Appellant at 8-9.)


[11]   The State rebutted Middleton’s self-defense claim by presenting evidence

       Middleton was the initial aggressor in the altercation that led to Guyton’s

       death. The State presented evidence Middleton made the first aggressive move

       when he “took his right arm and he reached around . . . to reach [Guyton’s]

       back pocket.” (Tr. at 72.) When Guyton picked the gun up from the counter,

       he did not threaten or act aggressively towards Middleton. At some point after

       Middleton grabbed the gun, he began beating Guyton with it before he shot

       Guyton. Middleton’s alternate version of the facts is an invitation for us to

       reweigh evidence and judge the credibility of witnesses, which we cannot do.

       See Wilson, 770 N.E.2d at 801 (appellate court does not reweigh evidence or

       judge the credibility of witnesses).



       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-901 |February 10, 2016   Page 5 of 8
                                       Inappropriateness of Sentence

[12]   We may revise a sentence if it is inappropriate in light of the nature of the

       offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633

       (Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only

       the aggravators and mitigators found by the trial court, but also any other

       factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.

       App. 2007), trans. denied. The appellant bears the burden of demonstrating the

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[13]   When considering the nature of the offense, the advisory sentence is the starting

       point to determine the appropriateness of a sentence. Anglemyer v. State, 868

       N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The

       advisory sentence for murder is fifty-five years, with a sentencing range between

       forty-five and sixty-five years. Ind. Code § 35-50-2-3(a). The trial court

       sentenced Middleton to sixty years.


[14]   One factor we consider when determining the appropriateness of a deviation

       from the advisory sentence is whether there is anything more or less egregious

       about the offense committed by the defendant that makes it different from the

       “typical” offense accounted for by the legislature when it set the advisory

       sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.

       Middleton argues the murder was “less egregious” than the typical offense

       because Middleton was “in fear of getting shot.” (Br. of Appellant at 12.) The

       State presented evidence Middleton was agitated when he entered Guyton’s

       residence, woke Guyton up by shaking him so Middleton could buy drugs, was
       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-901 |February 10, 2016   Page 6 of 8
       the initial aggressor, and beat Guyton with the gun before shooting him. We

       cannot hold Middleton’s sentence inappropriate based on the nature of the

       crime.


[15]   When considering the character of the offender, one relevant fact is the

       defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.

       App. 2007). The significance of a criminal history in assessing a defendant’s

       character varies based on the gravity, nature, and number of prior offenses in

       relation to the current offense. Id. Middleton has twelve prior felony

       convictions and three misdemeanor convictions. Middleton has had eight

       petitions filed against him to revoke his probation, one parole violation, and

       one community corrections violation. We acknowledge Middleton’s assertion

       the acts that led to his prior convictions were relatively non-violent. But his

       criminal history, which includes convictions of Class B felony burglary and

       possession of a handgun without a license indicate the seriousness of his

       criminal activity has escalated. We cannot hold Middleton’s sentence

       inappropriate based on his character.


                                                 Conclusion
[16]   The State presented sufficient evidence Middleton did not act in self-defense.

       His sixty-year sentence is not inappropriate based on his character or the nature

       of the crime. Accordingly, we affirm.


[17]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-901 |February 10, 2016   Page 7 of 8
Najam, J., and Riley, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-901 |February 10, 2016   Page 8 of 8
