                                                                           FILED
                                                                       Dec 12 2019, 9:15 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                        Curtis T. Hill, Jr.
Batesville, Indiana                                       Attorney General of Indiana
                                                          Tiffany A. McCoy
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

William Moore,                                            December 12, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-884
        v.                                                Appeal from the
                                                          Marion Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff                                        Barbara Cook Crawford, Judge
                                                          The Honorable
                                                          Amy Barbar, Magistrate
                                                          Trial Court Cause No.
                                                          49G01-1806-F3-19086



Vaidik, Chief Judge.




Court of Appeals of Indiana | Opinion 19A-CR-884 | December 12, 2019                           Page 1 of 9
                                           Case Summary
[1]   William Moore appeals his convictions for criminal confinement as a Level 3

      felony and intimidation as a Level 5 felony—both of which were enhanced

      because he committed them with a “deadly weapon.” William argues that his

      pellet gun is not a “deadly weapon” and that even if it is, it cannot be used to

      enhance both of his convictions. We affirm.



                             Facts and Procedural History
[2]   Traci Capps has two adult sons, William and Bradley Moore. On the afternoon

      of June 6, 2018, Traci, Bradley, and Traci’s husband, Douglas Capps, went to

      William’s house so that Traci could drop off the laundry she did for him and

      pick up some personal items that belonged to his girlfriend, Alana. William

      and Alana lived together, but Alana had been staying with her mother ever

      since she and William got into an argument a few days before. When Traci

      knocked on William’s door, there was no answer. She then walked into the

      house and found William sleeping on the couch. Traci woke up William to tell

      him that she brought over his laundry and that she needed to get some of

      Alana’s personal items. William told his mother that she could not take any of

      Alana’s items and to get the “f*** out” of his house. Tr. p. 13. Traci responded

      that she wasn’t leaving until she got Alana’s belongings.


[3]   As Traci walked into the kitchen, William was “literally up against [her] . . .

      almost like a chest belly type push.” Id. Using his body, William pushed his


      Court of Appeals of Indiana | Opinion 19A-CR-884 | December 12, 2019      Page 2 of 9
      mother into the deep freezer so that her back was against the freezer and his

      body was blocking the door. William had a gun in his hand at the time. Id. at

      15. Then, William “pull[ed] the gun and put[] it to” Traci’s temple, telling her

      that he was going to “f***ing kill [her]” and “shoot [her].” Id. at 15-16. While

      William had the gun to his mother’s head, she was scared that she was going to

      “die” and “get hurt.” Id. at 16. Traci told William, “[I]f you are going to do it,

      just do it. Just shoot me, just kill me. Just get it over with.” Id.


[4]   Meanwhile, Bradley and Douglas were outside waiting when they heard the

      commotion inside William’s house. See id. at 47 (Douglas explaining that

      about five or ten minutes after Traci went inside William’s house, they heard a

      commotion inside). Bradley and Douglas rushed inside, where they saw that

      William had his mother pushed against the deep freezer. Bradley saw what he

      believed to be a gun in William’s hand and drew his own gun. When William

      pointed his gun at Traci’s head, Bradley pointed his gun at William. At this

      point, Douglas, who recognized William’s gun and knew that it was a pellet

      gun, yelled, “Everybody calm down, it’s just a pellet gun.” Id. at 50. William

      then “slammed” his gun on the ground, which made a cracking noise like it

      broke. Id. at 36. Traci, Bradley, and Douglas ran out of the house and called

      911. A few minutes later, William came out of the house and left.


[5]   When police arrived, an officer went inside the house and saw what he believed

      to be a gun on the kitchen floor by the deep freezer. Upon closer inspection, the

      officer saw that the gun was in two pieces and that it was actually a “BB gun.”

      Id. at 58. An evidence technician was called to photograph the scene and

      Court of Appeals of Indiana | Opinion 19A-CR-884 | December 12, 2019      Page 3 of 9
      collect evidence. The gun, which turned out to be a “CO2 Power Pellet Pistol,”

      id. at 36, contained the following advisement: “WARNING: Not a toy.

      Misuse or careless use may cause serious injury or death,” Ex. 7. According to

      the evidence technician, the gun was not loaded. He didn’t test it to see if it was

      operable.


[6]   Thereafter, the State charged William with, among other things, criminal

      confinement as a Level 3 felony, enhanced from a Level 6 felony because he

      committed the offense while “armed with a deadly weapon, to wit: air gun

      and/or BB gun,” and intimidation as a Level 5 felony, enhanced from a Class

      A misdemeanor because while committing the offense he “drew or used a

      deadly weapon, to wit: air gun and/or BB gun.”1 Appellant’s App. Vol. II pp.

      18-19; Ind. Code § 35-42-3-3(b)(3)(A); Ind. Code § 35-45-2-1(b)(2)(A).

      Following a bench trial, the trial court found William guilty of both counts.

      The court sentenced him to nine years for criminal confinement and three years

      for intimidation, to be served concurrently.


[7]   William now appeals.




      1
        The State also charged William with domestic battery and battery (both relating to Bradley). The trial court
      found him guilty of domestic battery. Because William does not challenge this conviction on appeal, we do
      not address it or the facts underlying it.

      Court of Appeals of Indiana | Opinion 19A-CR-884 | December 12, 2019                               Page 4 of 9
                                  Discussion and Decision
                                          I. Deadly Weapon
[8]    William first contends that his pellet gun is not a “deadly weapon” as defined

       by statute and therefore the evidence is insufficient to support his convictions

       for criminal confinement as a Level 3 felony and intimidation as a Level 5

       felony—both of which were enhanced because he committed them with a

       “deadly weapon.” Appellant’s Br. p. 8. Accordingly, William asks us to

       reduce his criminal-confinement conviction to a Level 6 felony and his

       intimidation conviction to a Class A misdemeanor.


[9]    Our standard of review for sufficiency claims is well settled. We do not reweigh

       evidence or assess the credibility of witnesses. Gray v. State, 903 N.E.2d 940,

       943 (Ind. 2009). Rather, we look to the evidence and reasonable inferences

       drawn therefrom that support the judgment and will affirm the conviction if

       there is probative evidence from which a reasonable factfinder could have found

       the defendant guilty beyond a reasonable doubt. Id.


[10]   A “deadly weapon” is defined, in part, as:


               (1) A loaded or unloaded firearm.


               (2) A destructive device, weapon, device, taser (as defined in IC
               35-47-8-3) or electronic stun weapon (as defined in IC 35-47-8-1),
               equipment, chemical substance, or other material that in the
               manner it:


                        (A) is used;
       Court of Appeals of Indiana | Opinion 19A-CR-884 | December 12, 2019         Page 5 of 9
                        (B) could ordinarily be used; or


                        (C) is intended to be used;


               is readily capable of causing serious bodily injury.


       Ind. Code § 35-31.5-2-86. “Serious bodily injury,” in turn, is defined as “bodily

       injury that creates a substantial risk of death or that causes: (1) serious

       permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent

       or protracted loss or impairment of the function of a bodily member or organ;

       or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292.


[11]   Although not a “firearm,” a pellet or BB gun can be considered a “deadly

       weapon” if, in the manner it is used, could ordinarily be used, or is intended to

       be used, it is readily capable of causing serious bodily injury. I.C. § 35-31.5-2-

       86; Davis v. State, 835 N.E.2d 1102, 1112 (Ind. Ct. App. 2005), trans. denied.

       Whether a weapon is a “deadly weapon” is determined from a description of

       the weapon, the manner of its use, and the circumstances of the case. Davis,

       835 N.E.2d at 1112. “The fact finder may look to whether the weapon had the

       actual ability to inflict serious injury under the fact situation and whether the

       defendant had the apparent ability to injure the victim seriously through use of

       the object during the crime.” Id. (quotation omitted).


[12]   William acknowledges that pellet and BB guns can be considered deadly

       weapons; however, he argues that his pellet gun is not a “deadly weapon”




       Court of Appeals of Indiana | Opinion 19A-CR-884 | December 12, 2019          Page 6 of 9
       because it was unloaded and “likely inoperable.”2 Appellant’s Br. p. 9. As the

       State points out, this Court has already held that a disabled pellet gun can be a

       “deadly weapon.” In Whitfield v. State, 699 N.E.2d 666 (Ind. Ct. App. 1998),

       trans. denied, we held that a disabled pellet gun was a “deadly weapon” because

       “pellet guns are virtually indistinguishable from the real caliber guns that they

       are modeled after” and the victim “was so frightened that he could hardly

       speak.” Id. at 671.


[13]   The same can be said here. William put his pellet gun to his mother’s temple

       and told her that he was going to “f***ing kill [her]” and “shoot [her].” Traci

       thought that she was going to die and told her son, “Just get it over with.” In

       addition, Traci, Bradley, and the police officer initially believed that William’s

       pellet gun was a real gun, and photos of the gun were admitted into evidence at

       trial. See Exs. 3-8. Accordingly, we find that there is substantial evidence of

       probative value to support the factfinder’s determination that William’s pellet

       gun is a “deadly weapon.”


                                           II. Double Jeopardy
[14]   William next contends that even if his pellet gun is a “deadly weapon,” his

       criminal-confinement and intimidation convictions violate Indiana’s double-

       jeopardy principles because they were both enhanced “based on the same




       2
         It’s unclear if William’s argument is that the pellet gun was inoperable because it was unloaded or because
       it was in two pieces. If the latter, we note that the record shows that the gun was in one piece until William
       “slammed” it on the ground.

       Court of Appeals of Indiana | Opinion 19A-CR-884 | December 12, 2019                                Page 7 of 9
       possession [of] a single unloaded pellet gun.” Appellant’s Br. p. 13 (emphasis

       added). William does not argue that his separate convictions for criminal

       confinement and intimidation cannot stand; rather, he asks us to remove the

       “deadly weapon” enhancement from the lesser offense.


[15]   In support of his argument, William cites the Indiana Supreme Court’s recent

       decision in Springfield v. State, 124 N.E.3d 610 (Ind. 2019), reh’g denied. In that

       case, the defendant was convicted of Level 4 felony possession of cocaine and

       Level 5 felony possession of a narcotic drug, both of which were enhanced

       because the defendant committed the offenses while in “possession” of a

       firearm. Id. at 612. The defendant argued that the enhancements to his

       convictions violated Indiana double-jeopardy principles because they were

       based on the same evidence—his possession of a single firearm. Our Supreme

       Court held as follows:


               Although the use of the same weapon during the commission of
               two or more distinct offenses may be used to enhance the level of
               each offense without offending double jeopardy protections,
               enhancing the level of two separate offenses for the
               continuous possession of a firearm would violate these
               principles. The appropriate remedy to address such violations is
               to reduce one of the offending convictions to a lesser included
               offense, if doing so will eliminate the violation.


       Id. (citations omitted).


[16]   Here, William was convicted of criminal confinement as a Level 3 felony

       because he committed the offense while armed with a deadly weapon and


       Court of Appeals of Indiana | Opinion 19A-CR-884 | December 12, 2019        Page 8 of 9
       intimidation as a Level 5 felony because while committing the offense he drew

       or used a deadly weapon. Indeed, the evidence shows that William pushed

       Traci against a deep freezer while he had a gun in his hand and then put the

       gun to her head, threatening to kill her. Unlike Springfield, William’s

       convictions for these distinct offenses are based on his use—as opposed to his

       possession—of the gun. Accordingly, there is no double-jeopardy violation.

       See Leggs v. State, 966 N.E.2d 204, 209 (Ind. Ct. App. 2012) (holding that the

       defendant “was not subjected to double jeopardy when he was convicted of

       multiple crimes enhanced by the use of a knife”). We therefore affirm

       William’s convictions.


[17]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-884 | December 12, 2019      Page 9 of 9
