MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 21 2019, 8:54 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael R. Fisher Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Caroline G. Templeton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dequarius Walker, August 21, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-124 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Ruth Reichard, Appellee-Plaintiff. Senior Judge Trial Court Cause No. 49G02-1805-MR-14809
Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 1 of 22 Case Summary
[1] Dequarius Walker appeals his conviction and sentence for murder. We affirm.
Issues
[2] Walker raises four issues, which we restate as:
I. Whether the trial court erred in refusing Walker’s jury instruction on involuntary manslaughter as a lesser included offense.
II. Whether the trial court committed fundamental error when it failed to sua sponte instruct the jury on reckless homicide.
III. Whether the evidence is sufficient to convict Walker of murder.
IV. Whether Walker’s sentence is inappropriate in light of the nature of the offense and Walker’s character.
Facts
[3] In May 2018, Jalisa Lacey lived on the West side of Indianapolis with her three
young daughters. Walker and Lacey were in a relationship, and Walker
fathered Lacey’s youngest daughter; however, the couple’s relationship had
ended prior to May 2018.
[4] In the early morning hours of May 2, 2018, Lacey and her friend, Dennis
Hendon, were drinking together on Lacey’s porch while Lacey’s young
daughters slept inside the house. While Lacey and Hendon were on the porch,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 2 of 22 Walker approached from the back side of Lacey’s home. Walker also lived in
the neighborhood with his girlfriend. When Walker approached Lacey, Walker
appeared to be “drunk.” Tr. Vol. II p. 40. Walker asked Lacey what she was
doing outside late at night, took Hendon’s cigarettes, and poured Lacey’s drink
on her.
[5] Lacey requested Walker leave several times, but Walker refused. Lacey
telephoned Walker’s aunt, Marilyn Johnson, to encourage Walker to leave
Lacey’s home. Meanwhile, Walker continued to act disrespectfully to Lacey
and Hendon and called Lacey names such as “w****.” Id. at 43. Johnson
arrived and Walker became upset that Lacey called Johnson. Johnson also
believed that Walker had been drinking based on Johnson smelling the alcohol
on Walker. After Johnson asked Walker to leave Lacey’s home, Walker
responded that he would not leave.
[6] Subsequently, a series of events unfolded which Lacey and Johnson understood
differently. According to Lacey’s testimony, Lacey went inside her home and
Walker followed her. Then, Lacey and Walker went outside and Walker
“grabb[ed her] hair, [and tried] to choke [her].” Id. at 47. The altercation
between Lacey and Walker occurred near Johnson’s car. Lacey testified that
Johnson told Walker to leave Lacey alone during the altercation.
[7] Lacey further testified that Hendon picked up a “baseball bat”—which the
evidence revealed to be a wooden board—and hit Walker while telling Walker
to “leave [Lacey] alone.” Id. at 50. Surveillance video from the nearby store
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 3 of 22 shows Hendon picking up the board off the sidewalk. Walker then “[took] the
[same board] and start[ed] hitting [Hendon].” Id. at 51. Lacey ran away after
Hendon hit Walker with the board. Lacey testified that she was not exactly
sure where Walker hit Hendon on his body or how many times Walker hit
Hendon.
[8] According to Lacey’s testimony, after Walker hit Hendon, Walker ran away
through a nearby alley. Hendon appeared to be “dazed out” on the ground. Id.
at 52. Johnson and Lacey picked Hendon up off the ground, and Lacey called
the police.
[9] Johnson’s account differs from Lacey’s. Johnson testified that she never saw
Walker touch Lacey. Johnson also testified that, at the time of the incident,
Johnson asked Lacey if Walker touched Lacey, to which Lacey responded that
Walker had not. Johnson testified that, while her back was to the men, she did
not hear any arguing or yelling; however, Johnson heard “one loud crack.” Id.
at 105. Johnson then turned around and observed Walker standing over
Hendon with the board. Walker “again” attempted to hit Hendon with the
board; however, Johnson took the board from Walker and “popped [Walker]
with it twice” before she shoved Walker to the ground. Id. at 106. Johnson
also acknowledged that she told the police that Walker was “beating on
[Hendon]” because Hendon was “talking noise to [Walker] all day.” Id. at 108-
109.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 4 of 22 [10] After the incident, Johnson continued to speak with Hendon while Lacey called
the police. Johnson also testified that, at first, Hendon did not respond to her
or Lacey’s voice; however, “[a]fter about two minutes, he started to come
around on his own,” and Johnson told Lacey not to move Hendon until the
medics arrived. Id. at 111.
[11] Walker also testified in his defense and told a completely different version of
events. Walker stated that he was speaking with Lacey when suddenly he felt
something hit the back of his head and turned to see Hendon with the board.
Walker testified that Hendon hit him about six times, then Walker tried to
defend himself by taking the board away, and in doing so, Hendon fell down
when Walker was finally able to take the board away from Hendon. Walker
claims that he also attempted to help Hendon up once he fell.
[12] Officer Jon King with the Indianapolis Metropolitan Police Department arrived
at Lacey’s home at approximately 1:00 a.m., and the medics arrived shortly
thereafter. Hendon was “lethargic, [and] disoriented,” he had no visible
injuries, and Hendon walked to the ambulance on his own. Id. at 86. After
Officer King and the medics evaluated Hendon, Hendon went inside his home.
Hendon’s home was above the Blue Store, near Lacey’s home.
[13] Later on May 2, 2018, Lacey went to the Blue Store and told another employee,
Janice Weaver, that someone should check on Hendon based on the events that
occurred earlier that morning. Walker also went into the store later, and
Weaver asked Walker why Walker hit Hendon. Walker replied to Weaver that
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 5 of 22 Hendon “shouldn’t have been in [Walker’s] f****** business.” Id. at 214.
Weaver sent someone to check on Hendon and found Hendon unresponsive,
and 911 was called.
[14] When medics arrived at Hendon’s residence at 6:55 p.m. on May 2, 2018,
Hendon was unresponsive, his skin was hot, he had an injury on the left side of
his head, and he had blood in his left ear. Hendon was breathing, but his heart
rate was high. Hendon was transported to the hospital and later died.
[15] On May 3, 2018, the neighborhood had a vigil for Hendon and neighbors
spotted Walker and chased him. Police were called and they found Walker in a
crawl space in his girlfriend’s home where he was arrested. The photos taken
by the police of Walker’s injuries after his arrest demonstrated only minor
injuries, including minor scabs and scarring, which did not appear to be the
result of new wounds.
[16] On May 8, 2018, Walker was charged with Count I, murder, and Count II,
domestic battery, a Class A misdemeanor. On November 21, 2018, the State
filed a motion to dismiss Count II, which the trial court granted. Accordingly,
a new information was filed on November 26, 2018, alleging only Count I,
murder, stating: “[o]n or about May 2, 2018, [Walker] did knowingly or
intentionally kill another human being, to-wit: Dennis Hendon.” Appellant’s
App. Vol. II p. 92.
[17] Walker’s jury trial took place in November 2018, and witnesses testified to the
foregoing facts. Dr. Scott Shapiro, a neurosurgeon, testified that Hendon was
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 6 of 22 admitted to the hospital on May 2, 2018, and died the next day. Hendon’s
CAT scan demonstrated that Hendon had a “catastrophic intracerebral
hemorrhage,” which indicated a “[v]ery large hemorrhage in the brain itself.”
Tr. Vol. II p. 139. Dr. Shapiro further testified that Hendon had a “subdural
hemorrhage which is usually a manifestation of some type [of] traumatic
event.” Id. at 140. He stated that: “[t]he intracerebral hemorrhage can be
caused by a number of things other than trauma but [it is seen] all the time in
trauma.” Id. Hendon also experienced bleeding in his “subarachnoid space,”
the space in which “you can get little bleeding in the interstices of all the
convolutions of the brain,” as well as fractures along the base of his skull. Id. at
140-41. Hendon’s brain injuries were summarized as “bleeding within the
brain, on top of the brain and then in another layer that surrounds the brain.”
Id. at 141. Finally, in terms of brain damage, Hendon had a “massive shift” of
his brain that “was almost an inch in shift which is catastrophic.” Id. Dr.
Shapiro classified the brain shift as “just a disaster to have happen.” Id. at 142.
[18] Hendon’s medical records also indicated that Hendon had a bruise above one
eye and blood behind one of his eardrums or coming out of Hendon’s ear. Dr.
Shapiro observed that this is seen often in trauma, “especially when there’s [a]
skull base fracture.” Id. at 143. Hendon, accordingly, was “brain-dead on
exam and the scan was unrecusable,” meaning Hendon’s chance of survival
was “zero.” Id. Dr. Shapiro stated that he had “no idea what happened to
[Hendon]” and that the injuries “could have been from a fall.” Id. at 144.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 7 of 22 [19] Dr. Christopher Poulos, the chief forensic pathologist with the Marion County
Coroner’s Office, testified that Hendon was five-foot-seven-inches and 106
pounds and had several external and internal injuries. Hendon’s external
injuries included a scrape on the back of the right shoulder, a bruise and scrapes
on the left elbow, a scrape on the knee, and scrapes on the left lower leg and
right lower leg. Hendon’s internal injuries included a fracture of the “cornua of
the thyroid cartilage,” an injury to the head which resulted in “a lot of
bleeding” as the most significant injury, and chest wall hemorrhage between the
ribs on Hendon’s back, consistent with blunt force injuries. Id. at 193, 197. Dr.
Poulos did not believe Hendon’s injuries on his neck were consistent with
injuries typically sustained in a fall. Dr. Poulos determined Hendon’s cause of
death to be “blunt force injury to the head” and ruled Hendon’s death a
homicide. Id. at 197.
[20] After all evidence was presented, the parties discussed final jury instructions.
The trial court considered Walker’s proposed final jury instructions on self
defense and involuntary manslaughter. Walker argued that an involuntary
manslaughter instruction was warranted because the State put into evidence
facts that would indicate Hendon was killed as a result of a battery. After
argument and discussion, the trial court concluded:
But what [the Court of Appeals says] is when the State drafts a charge of Murder that is “knowingly or intentionally killed another human being” and they don’t also allege in the information “while committing a battery” or “while committing an armed robbery” or while, you know, “holding someone at gunpoint,” whatever, that forecloses involuntary manslaughter. Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 8 of 22 And, like I said, I could see some wiggle room if the facts had been different into evidence. But based on the defendant’s testimony, that is, you know, as I said, I would characterize as non-commission, in other words, not even committing a battery, you know, when this happened and certainly it’s not charged in a way that he was committing another crime, I honestly do not think involuntary manslaughter is on the table here as a lesser included.
Tr. Vol. III p. 54. The trial court declined to give the involuntary manslaughter
instruction; however, the trial court found that a self defense instruction was
supported by the evidence and instructed the jury regarding self defense. The
jury found Walker guilty of murder.
[21] Walker was sentenced on December 18, 2018. The trial court found, as
aggravating factors, Walker’s criminal history and the fact that Walker was
serving a sentence for a crime of violence at the time of the instant offense. 1
The trial court found as mitigating factors that incarceration would be a
hardship on Walker’s dependent children and that Walker made a statement of
remorse. The trial court found that the aggravators outweighed the mitigators
and Walker was sentenced to fifty-eight years in the Department of Correction.
Walker now appeals his conviction and sentence.
1 Walker’s pre-sentence investigation report indicates that Walker was convicted and awaiting a sentence for a February 6, 2018 charge for resisting law enforcement, a Class A misdemeanor (the “prior offense”), at the time of the instant offense. Walker was sentenced in the prior offense the day before charges were filed against him in the instant offense.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 9 of 22 Analysis
I. Involuntary Manslaughter Instruction
[22] Walker argues that the trial court erred in refusing to tender Walker’s proposed
instruction on involuntary manslaughter. “The trial court has broad discretion
as to how to instruct the jury, and we generally review that discretion only for
abuse.” Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012) (citing Mayes v. State,
744 N.E.2d 390, 394 (Ind. 2001)). The abuse of discretion standard applies
when the trial court makes a factual decision regarding whether to tender the
instruction to the jury. See Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998).
On the other hand, “if the trial court rejects the tendered instruction on the basis
of its view of the law, as opposed to its finding that there is no serious
evidentiary dispute, appellate review of the ruling is de novo.” Id. Under either
standard, Walker’s argument fails.
[23] In Evans v. State, 727 N.E.2d 1072, 1080-81 (Ind. 2000), our Supreme Court
summarized the law regarding the issue of whether a trial court should instruct
on a lesser included offense:
In Wright v. State, 658 N.E.2d 563 (Ind. 1995), this Court set forth a three-part test for determining when a trial court should instruct on a lesser included offense. Part one requires the trial court to determine whether the lesser offense is “inherently” included in the offense charged by comparing the statute defining the crime charged with the statute defining the alleged lesser included offense. Id. at 566-67; see also Wilson v. State, 697 N.E.2d 466, 473 (Ind. 1998). If necessary, part two of the Wright test alternatively requires the trial court to determine whether the lesser offense is “factually” included in the offense charged by comparing the
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 10 of 22 charging instrument with the statute defining the alleged lesser included offense. Wright, 658 N.E.2d at 567.
Finally, if the court concludes that the lesser offense is either inherently or factually included in the offense charged, then part three requires the court to determine whether a serious evidentiary dispute exists as to which offense was committed by the defendant, given all the evidence presented by both parties. Id. If a serious evidentiary dispute does exist, it is reversible error not to give the instruction on the inherently or factually included lesser offense. Id.
[24] As for the first question of whether involuntary manslaughter is inherently
included as a lesser offense of murder, Walker concedes that Indiana case law
indicates that involuntary manslaughter is not inherently included; however,
Walker argues that, “especially as it applies here, [this case law] is erroneous
and should be revisited.” Appellant’s Br. pp. 23-24. To the extent Walker is
inviting us to disagree with our Supreme Court, we decline to do so. See Gill v.
Gill, 72 N.E.3d 945, 949 (Ind. Ct. App. 2017) (finding that “as Indiana’s
intermediate appellate court, we are bound to follow Indiana Supreme Court
precedent”). Instead, we will turn to the next step to consider whether
involuntary manslaughter was factually included in this case.
[25] The trial court did not tender to the jury Walker’s involuntary manslaughter
instruction, concluding that the way in which the State drafted the charging
information factually precluded involuntary manslaughter. Still, Walker argues
that the State’s ability to do so defies notions of fairness “because it is logically
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 11 of 22 impossible to have killed a person without necessarily committing a lesser
offense.” Appellant’s Br. p. 24.
[26] The amended charging information stated: “On or about May 2, 2018,
[Walker] did knowingly or intentionally kill another human being, to-wit:
[Hendon].” Appellant’s App. Vol. II p. 23. Indiana Code section 35-42-1-4(b)
provides:
A person who kills another human being while committing or attempting to commit:
(1) a Level 5 or Level 6 felony that inherently poses a risk of serious bodily injury;
(2) a Class A misdemeanor that inherently poses a risk of serious bodily injury; or
(3) battery;
commits involuntary manslaughter, a Level 5 felony.
[27] The charging information does not indicate that a battery occurred.
Accordingly, the trial court was not required to find that involuntary
manslaughter is a factually lesser included crime here. See Wright, 658 N.E.2d
at 570 (“the State may only foreclose instruction on a lesser offense that is not
inherently included in the crime charged by omitting from a charging
instrument factual allegations sufficient to charge the lesser offense.”); see c.f.,
Evans, 727 N.E.2d at 1081 (finding that, because the charging information
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 12 of 22 alleged that the defendant killed the victims by means of a knife, involuntary
manslaughter was a factually included lesser offense).
[28] Based on the State’s charging information, no facts or battery were alleged that
would make involuntary manslaughter a factually included lesser offense here.
The trial court did not err in declining to instruct the jury on involuntary
manslaughter because it was neither an inherently included offense or a
factually included offense based on the charging information. Accordingly, we
need not move to step three of the Wright analysis. See Norris v. State, 943
N.E.2d 362, 369 (Ind. Ct. App. 2011) (the trial court “needlessly advanced to
step three” because, “[b]ased on the State’s drafting of the murder charge,
instruction on involuntary manslaughter was foreclosed in this case.”), trans.
denied.
II. Reckless Homicide Instruction
[29] Walker next argues that the trial court erred in failing to, sua sponte, give a
reckless homicide instruction to the jury as a lesser included offense. Walker
failed to request a jury instruction on reckless homicide; therefore, we will
review only for fundamental error. As the State correctly points out, the trial
court raised the issue of reckless homicide, arguing that, like voluntary
manslaughter, the trial court determined that the facts did not warrant an
instruction on reckless homicide and Walker never rebutted the trial court’s
statement or argued to the contrary.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 13 of 22 [30] “An error may be fundamental and thus not subject to waiver, if it is a
‘substantial blatant violation of basic principles.’” Barthalow v. State, 119
N.E.3d 204, 211 (Ind. Ct. App. 2019) (quoting Moreland v. State, 701 N.E.2d
288, 294 (Ind. Ct. App. 1998)). The error “must be so prejudicial to the
defendant’s rights as to make a fair trial impossible.” Id. Fundamental error is
saved for only “egregious circumstances.” Id.
[31] In Lane v. State, 953 N.E.2d 625, 630 (Ind. Ct. App. 2011), a panel of this Court
summarized the law on this issue as follows:
To the extent Lane argues that failure to give an instruction on conversion amounted to fundamental error, his claim fails. Essentially, Lane’s argument is that the trial court was required to sua sponte give the instruction on conversion despite counsel's strategic decision. Our Supreme Court has rejected this notion, holding that a trial court’s failure to sua sponte give instructions on lesser-included offenses does not constitute fundamental error. See Metcalf v. State, 451 N.E.2d 321 (Ind. 1983); see also Sarwacinski v. State, 564 N.E.2d 950 (Ind. Ct. App. 1991). To be sure, our Supreme Court stated in Helton v. State, 273 Ind. 211, 213, 402 N.E.2d 1263, 1266 (1980) that “the entitlement to included offenses instructions, in an appropriate case, is not a fundamental right but rather is one that must be claimed and the claim preserved, in accordance with established rules of trial and appellate procedure.” The omission of an instruction on the lesser-included offense of conversion did not constitute fundamental error.
[32] Walker attempts to distinguish his case from Lane, arguing that here, “there was
no possible strategic reason not to seek instruction on the lesser included offense
of reckless homicide.” Appellant’s Br. p. 27. We disagree. Walker’s trial
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 14 of 22 counsel clearly considered lesser included instructions, and even offered a lesser
included instruction on involuntary manslaughter. In analyzing the options,
trial counsel chose not to offer an instruction on reckless homicide. Even if this
was a poor decision, we will not “second guess counsel’s strategy through the
distortions of hindsight.” Lane, 953 N.E.2d at 630. Walker’s argument fails.
III. Sufficient Evidence
[33] Walker argues the evidence is insufficient to support his murder conviction
because: (1) the evidence did not demonstrate that Walker knowingly or
intentionally killed Hendon; and (2) the State failed to disprove Walker’s self
defense claim. When there is a challenge to the sufficiency of the evidence,
“[w]e neither reweigh evidence nor judge witness credibility.” Gibson v. State,
51 N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind.
1985)). Instead, “we ‘consider only that evidence most favorable to the
judgment together with all reasonable inferences drawn therefrom.’” Id.
(quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is
supported by ‘substantial evidence of probative value even if there is some
conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also
McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though
there was conflicting evidence, it was “beside the point” because that argument
“misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will
affirm the conviction unless no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696
(Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 15 of 22 A. Knowingly or Intentionally Killed
[34] To convict Walker of murder, the State had to prove that Walker “knowingly
or intentionally kill[ed] another human being.” Ind. Code § 35-42-1-1. Walker
argues that, at the very least, Walker’s “reaction, in this brief space of time, may
show [Walker] intended to commit a battery or that he acted recklessly, but it is
not sufficient to prove he knowingly or intentionally killed [Hendon].”
Appellant’s Br. p. 15. “A person engages in conduct intentionally if, when he
engages in the conduct, it is his conscious objective to do so.” I.C. § 35-41-2-
2(a). “A person engages in conduct knowingly if, when he engages in the
conduct, he is aware of a high probability that he is doing so.” I.C. § 35-41-2-
2(b).
[35] “An intent to kill sufficient to sustain a murder conviction can be established in
several ways.” Burns v. State, 59 N.E.3d 323, 328 (Ind. Ct. App. 2016), trans.
denied. Specifically, intent to kill may be inferred from “the use of a deadly
weapon,” “the nature of the attack and the circumstances surrounding the
crime,” “[t]he duration and brutality of the attack[,] the relative strengths of the
defendant and victim,” and “where blows of magnitude are repeated, a jury
could conclude that the defendant had an intent to kill.” Id.
[36] Much of Walker’s argument rests on his premise that Hendon’s brain injury
was caused by a fall to the pavement, and not by being struck on the head. Dr.
Poulos testified as follows:
I can say blunt force trauma. I can say more likely having occurred by – you know, by a fall onto the back of the head like Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 16 of 22 I’ve already said. I can say that – you know, from this injury, I can say it’s more likely due to a fall. The injury on the neck I can say is more likely not due to a fall.
Tr. Vol. II p. 199. Even though the injury to the head was most significant,
Hendon also had injuries to the “left back of the head,” and other “multiple
internal and external injuries.” Id. Dr. Poulos also noted a chest injury that did
not appear to be consistent with CPR, in addition to other injuries that may be
consistent with CPR. Additionally, all the witnesses present that evening
testified that Walker hit Hendon with the board, which is consistent with
injuries to Hendon’s body.
[37] Walker—who weighs approximately sixty pounds more than Hendon and is
many years Hendon’s junior—hit Hendon with a wooden board. The board
was of such heft that Lacey thought the board was a baseball bat when she first
observed it. The evidence presented from both Dr. Shapiro and Dr. Poulos
demonstrated that the harm caused by Hendon’s injuries was severe and,
ultimately, fatal. Even if the fall is what caused Hendon’s death, Johnson heard
a loud crack and then Hendon fell to the ground with such force that he
sustained a fatal injury. This is the type of evidence from which a jury could
infer Walker’s intent to kill Hendon. For us to conclude otherwise would
require us to reweigh the evidence, which we cannot do. See Gibson, 51 N.E.3d
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 17 of 22 at 210. The State presented sufficient evidence regarding the intent element of
Walker’s murder conviction. 2
B. Self Defense
[38] Walker also contends that he presented sufficient evidence of self defense,
which the State did not rebut. Pursuant to Indiana Code Section 35-41-3-2(c),
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.
[39] “A valid claim of self-defense is a legal justification for an otherwise criminal
act.” Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). “A claim of self-defense
requires a defendant to have acted without fault, been in a place where he or
2 Finally, portions of Walker’s arguments with regard to the sufficiency of the evidence appear to be that, had the jury been allowed to consider reckless homicide or involuntary manslaughter, Walker would not have been convicted of murder, but instead, would have been convicted of one of the other offenses based on the mens rea. Again, this argument is nothing more than a request for us to reweigh evidence and find another mens rea more applicable, which we cannot do. See Gibson, 51 N.E.3d at 210.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 18 of 22 she had a right to be, and been in reasonable fear or apprehension of bodily
harm.” Id. “A claim of self-defense will fail if the person uses more force than
is reasonably necessary under the circumstances.” Weedman v. State, 21 N.E.3d
873, 892 (Ind. Ct. App. 2014) (quotations omitted). “Once a defendant claims
self-defense, the State must disprove, beyond a reasonable doubt, at least one
element of self-defense.” Carroll v. State, 744 N.E.2d 432, 433 (Ind. 2001). “The
State may meet its burden by either rebutting the defense directly or relying on
the sufficiency of evidence in its case-in-chief.” Id. at 434.
[40] In this case, the trial court gave the jury an instruction on self defense. The
evidence demonstrates that, although Hendon was the first aggressor between
the two men, Walker took the board from Hendon and hit Hendon with the
board more than once. 3 Hendon suffered severe injuries—both internally and
externally as a result of Walker’s actions whereas, as indicated above, the
injuries to Walker were minor at best.
[41] In light of the above facts, it was reasonable for the jury to rely on the State’s
facts in its case in chief to conclude that Walker’s response to Hendon was not
reasonable and, therefore, to reject Walker’s self defense argument. Walker’s
argument on this element is essentially an invitation for us to reweigh the
evidence, which we cannot do. See Gibson, 51 N.E.3d at 210.
3 Although Walker testified in his defense and claimed that he merely took the board from Hendon, which caused Hendon to fall and sustain the head injuries, the jury was not required to believe Walker’s version of events, especially in light of Lacey’s and Johnson’s testimony to the contrary.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 19 of 22 IV. Inappropriate Sentence
[42] Lastly, Walker contends that his sentence is inappropriate in light of the nature
of the offense and Walker’s 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 bears the burden to persuade this court 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.
[43] In Indiana, trial courts can tailor an appropriate sentence to the circumstances
presented; 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 imposed is
inappropriate.” Sanders, 71 N.E.3d at 844 (citing King v. State, 894 N.E.2d 265,
268 (Ind. Ct. App. 2008)).
[44] We look to the statutory ranges established for the classification of the offense.
Walker was found guilty of murder. The sentence for murder ranges from
forty-five years to sixty-five years, with an advisory sentence of fifty-five years.
I.C. § 35-50-2-3. Walker was sentenced to fifty-eight years.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 20 of 22 [45] We first review the nature of Walker’s offense. Walker hit Hendon—a much
smaller and older man—with a board and using such force that Hendon
sustained serious head injuries. The head injuries were so extensive that no
reasonable neurosurgeon would operate on Hendon. 4
[46] Next, we consider Walker’s character. Walker’s criminal history does not
reflect well upon his character. Twenty-three-year-old Walker’s criminal
history includes convictions for intimidation, a Class D felony; resisting law
enforcement, a Class A misdemeanor; intimidation, a Class D felony; theft, a
Class D felony; battery, a Class A misdemeanor; dealing in a controlled
substance, a Level 6 felony; resisting law enforcement, a Class A misdemeanor;
resisting law enforcement, a Class A misdemeanor; resisting law enforcement
using a vehicle, a Level 6 felony; leaving the scene of an accident, a Class B
misdemeanor; criminal confinement, a Level 6 felony; strangulation, a Level 6
felony; domestic battery in the presence of a child under sixteen, a Level 6
felony; and resisting law enforcement, a Class A misdemeanor.
[47] As discussed above, the trial court found, as aggravating factors, Walker’s
criminal history and the fact that Walker was serving a sentence for a crime of
4 In part of his argument, Walker argues that part of the reason his sentence is inappropriate is because of the trial court’s statement that Hendon was “beaten to death.” Tr. Vol. III p. 140. According to Walker, this statement does not properly characterize the evidence. We will not parse the trial court’s language to determine if this is a fair characterization of the evidence because, although we review the nature of the offense for purposes of inappropriateness of Walker’s sentence, the trial court did not consider the nature of the offense to be an aggravator. See id. (“That being said, I’m not sure the nature and circumstances of the crime are an aggravator. I think they’re elements of the crime and, for example, the harm was significant.”). The same is true of the photograph the State admitted into evidence at Walker’s sentencing.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 21 of 22 violence at the time of the instant offense. The trial court found two mitigating
factors: that (1) incarceration would be a hardship on Walker’s dependent
children; and (2) Walker made a statement of remorse. The trial court weighed
the aggravating and mitigating factors and found that the aggravators
outweighed the mitigators. Accordingly, the trial court sentenced Walker to
three years above the advisory sentence. We cannot say this was inappropriate.
Conclusion
[48] The State’s evidence was sufficient to convict Walker of murder, and the State
presented sufficient evidence to rebut Walker’s claim of self defense. The trial
court did not err in failing to instruct the jury on involuntary manslaughter, and
it was not fundamental error for the trial court to fail to, sua sponte, instruct the
jury on reckless homicide. Additionally, Walker’s sentence is not
inappropriate. We affirm.
[49] Affirmed.
Crone, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-124 | August 21, 2019 Page 22 of 22