Jordon M. Norton v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: June 5, 2024
• Docket: 23A-CR-02336
• Status: Published

Opinion

FILED Jun 05 2024, 9:13 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana Jordon M. Norton, Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

June 5, 2024 Court of Appeals Case No. 23A-CR-2336 Appeal from the Elkhart Circuit Court The Honorable Michael A. Christofeno, Judge Trial Court Cause No. 20C01-2008-MR-000005

Opinion by Judge Felix Chief Judge Altice and Judge Bradford concur.

Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 1 of 12 Felix, Judge.

Statement of the Case [1] Jordon Norton was drunk at a bar and got into an argument with David Artley.

Norton pulled a gun and shot at Artley seven times, killing Artley and injuring

a bystander. The State charged Norton with murder, battery with a deadly

weapon, and criminal recklessness. A jury found Norton guilty of battery with

a deadly weapon and criminal recklessness but failed to reach a verdict on the

murder charge. Norton presents two issues on appeal:

1. Whether the trial court committed reversible error in providing a self- defense jury instruction; and 2. Whether the trial court issued an inappropriate sentence under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History [3] On the evening of August 22, 2020, Norton and his wife spent “four or five

hours” at My Dad’s Place Bar in Elkhart, Indiana, where he “drank quite a

bit.” Tr. Vol. V at 55–56. Although he had been “drinking way too much,”

Norton and his wife decided to go to Hardy’s, another bar nearby. Id. at 58.

Before they went to Hardy’s, the couple stopped at their house where Norton

grabbed his handgun. Norton wanted to bring his handgun because he had

never been to Hardy’s and thought it was “a rougher-style place.” Id. at 59.

Norton did not possess a license for this firearm. Once they got to Hardy’s,

Norton continued to drink beer. Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 2 of 12 [4] Artley had also gone to Hardy’s that night. Artley was with his wife Stephanie,

their two friends Mikel and Tabatha, and his stepson Collin. The group was

out celebrating Collin’s return from Navy training. During last-call, the group

was trying to order drinks at the bar, so Mikel stood next to an empty seat

beside Norton. Norton’s wife had been using this seat but had left to use the

bathroom. Norton believed Mikel was trying to steal his wife’s seat, so he

began to argue with Mikel.

[5] At first, Mikel, Stephanie, and Tabatha tried to tell Norton that they were just

at the bar to order drinks and would leave shortly. Norton responded by telling

them that they were being “f***ing disrespectful.” Tr. Vol. III at 145. Then,

Artley attempted to calm Norton down and reassure him they were not trying

to steal his wife’s seat, but Norton failed to understand the situation.

Eventually, Artley and his group walked away from the bar.

[6] As the group walked away, Norton pulled out his gun and fired two shots at

Artley. Artley tried to take the gun away from Norton, but Norton fired a third

time which caused Artley to fall to the floor. Then, Norton stood over his body

and continued to shoot. Norton fired seven shots in total, killing Artley and

hitting a bystander in the foot. Stephanie, Tabatha, and Mikel disarmed

Norton, and Norton tried to flee the scene. Norton was prevented from

leaving. On August 26, 2020, the State charged Norton with murder,1 battery

1 Ind. Code § 35-42-1-1(1).

Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 3 of 12 with a deadly weapon as a Level 5 felony,2 and criminal recklessness as a Level

6 felony3.

[7] At trial, Norton alleged that he acted in self-defense as to all three charges.

Norton testified that, while he was arguing with Artley at the bar, Artley told

him that “we kill snitches.” Tr. Vol. V at 74. At the time, Norton had recently

given Elkhart County detectives information in relation to a homicide

investigation, and he believed that Artley and his friends were going to “beat

[him] to death” because he had talked to law enforcement about the homicide.

Id. at 82. The trial court gave a jury instruction on self-defense, which provided

in relevant part:

A person is justified in using deadly force, and does not have a duty to retreat, only if he reasonably believes that deadly force is necessary to prevent serious bodily injury to himself or a third person or to prevent the commission of a forcible felony.

However, a person may not use force if:

he is committing a crime that is directly and immediately connected to the confrontation. In other words, for the Defendant to lose the right of self-defense, the jury must find that, but for the Defendant’s commission of a separate crime, the confrontation resulting in injury to David Artley would not have occured [sic];

2 Id. § 35-42-2-1(c)(1), (g)(2). 3 Id. § 35-42-2-2(a), (b)(1)(A).

Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 4 of 12 ***

The State has the burden of proving beyond a reasonable doubt that the Defendant did not act in self-defense.

You are instructed that carrying a handgun without a license or the unlawful possession of a handgun does not deprive a citizen of his right to defend himself or others.

Appellant’s App. Vol. III at 9–10.

[8] The jury found Norton guilty of battery with a deadly weapon and criminal

recklessness. The jury failed to reach a verdict on the murder charge. The trial

court issued a seven-year aggregate sentence to be served in the Indiana

Department of Correction.

[9] On May 23, 2023, this court dismissed Norton’s first appeal because he failed to

seek relief to file a belated appeal under Post Conviction Rule 2. Norton v. State,

210 N.E.3d 886, 889 (Ind. Ct. App. 2023). Norton petitioned to file a belated

notice of appeal under Post Conviction Rule 2 on September 27, 2023; the trial

court granted the petition the following day. Norton now appeals his battery

with a deadly weapon and criminal recklessness convictions.4

4 The State filed a motion to dismiss this appeal, arguing that Norton did not act with the proper diligence required to grant the Post Conviction Rule 2 petition. We denied the State’s motion on April 24, 2024.

Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 5 of 12 Discussion and Decision 1. The Trial Court Did Not Commit Reversible Error When Providing the Jury Instruction on Self-Defense

[10] Norton argues that the trial court committed reversible error in providing its

self-defense instruction to the jury. “Ordinarily, ‘[i]nstructing the jury is a

matter within the discretion of the trial court, and we’ll reverse only if there’s an

abuse of that discretion.’” Gammons v. State, 148 N.E.3d 301, 303 (Ind. 2020)

(quoting Cardosi v. State, 128 N.E.3d 1277, 1284 (Ind. 2019)). However, if the

appellant argues that the instruction was an incorrect statement of law, we

apply a de novo standard of review. Id. (quoting Batchelor v. State, 119 N.E.3d

550, 554 (Ind. 2019)). An erroneous jury instruction is presumed to be

reversible error “unless the verdict would have been the same under a proper

instruction.” Id. (quoting Kane v. State, 976 N.E.2d 1228, 1232 (Ind. 2012)).

“[R]eversal is required, in other words, if the jury’s decision may have been

based upon an erroneous instruction.” Id. at 303–04 (internal quotation marks

omitted) (quoting Hawkins v. State, 100 N.E.3d 313, 319 (Ind. Ct. App. 2018)).

[11] Here, Norton argues the self-defense instruction included a misstatement of

law. Norton points to the following portion of the instruction:

he is committing a crime that is directly and immediately connected to the confrontation. In other words, for the Defendant to lose the right of self-defense, the jury must find that, but for the Defendant’s commission of a separate crime, the

Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 6 of 12 confrontation resulting in injury to David Artley would not have occured [sic].

Appellant’s App. Vol. III at 9. Norton claims that the phrase “directly and

immediately connected to the confrontation” was an incorrect statement of law

that influenced the jury’s verdict.

[12] Our Supreme Court addressed a similar challenge to a self-defense instruction

in Gammons v. State. 148 N.E.3d at 304–05. Specifically, it determined that the

phrase “directly and immediately connected” in the self-defense instruction

“weakened the causal connection required to preclude a claim of self-defense.”

Id. at 304. The court determined that this but-for test barring a self-defense

claim was “too broad.” Id. (quoting Mayes v. State, 744 N.E.2d 390, 396 (Ind.

2001)). The Gammons court rejected the but-for test and held that “self-defense

is barred only when there is ‘an immediate causal connection between the crime

and the confrontation.’” Id. at 304–05 (quoting Mayes, 744 N.E.2d at 394).

Since the trial court used the broad but-for test, it misstated the law in

administering the self-defense instruction. See id.

[13] Although the self-defense instruction misstates the law, we still must determine

if the error was the basis for the jury’s decision to convict. See Gammons, 148

N.E.3d at 305. Norton claims that the erroneous instruction permitted the jury

to disregard Norton’s self-defense claim because he was committing the crime

of unlawful possession of a handgun. However, the instruction expressly told

the jury they were not permitted to discredit a self-defense claim on this basis:

“You are instructed that carrying a handgun without a license or the unlawful Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 7 of 12 possession of a handgun does not deprive a citizen of his right to defend himself

or others.” Appellant’s App. Vol. III at 10. Additionally, Norton fired multiple

shots at Artley after he fell to the ground. Firing multiple shots undercuts a self-

defense claim. See Mayes v. 744 N.E.2d at 395. Thus, we are unpersuaded that

the jury reached its verdict based on the erroneous instruction, and we conclude

that the trial court did not commit reversible error. See Gammons, 148 N.E.3d at

304–05.

2. Norton’s Sentence is Not Inappropriate Under Indiana Appellate Rule 7(B).

[14] Next, Norton contends that his sentence is inappropriate under Appellate Rule

7(B) and should be revised. We disagree. The Indiana Constitution authorizes

us to independently review and revise a trial court’s sentencing decision. Lane v.

State, No. 24S-CR-150, 2024 WL 1924947, at *2 (Ind. 2024) (citing Ind. Const.

art. 7, § 4). That authority is implemented through Appellate Rule 7(B), which

permits us to revise a sentence 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.” Id. (quoting Ind. Appellate Rule

7(B)). We apply a “holistic approach” to our 7(B) review, meaning we “‘must

consider’ both factors, but the defendant need not ‘necessarily prove’ that the

sentence is inappropriate on both counts.” Id. at *6 (quoting Connor v. State, 58

N.E.3d 215, 219 (Ind. Ct. App. 2016) (emphasis in original).

[15] Our role under Appellate Rule 7(B) is to “leaven the outliers,” Lane, No. 24S-

CR-150, 2024 WL 1924947, at *2 (quoting Cardwell v. State, 895 N.E.2d 1219,

Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 8 of 12 1225 (Ind. 2008)), and we reserve that authority for “exceptional cases,” Mullins

v. State, 148 N.E.3d 986, 987 (Ind. 2020) (quoting Faith v. State, 131 N.E.3d 158,

160 (Ind. 2019)). When gauging inappropriateness under Appellate Rule 7(B),

we “focus on the forest—the aggregate sentence—rather than the trees—

consecutive or concurrent, number of counts, or length of the sentence on any

individual count.” Brown v. State, 10 N.E.3d 1, 8 (Ind. 2014) (citing Cardwell,

895 N.E.2d at 1225). Generally, a trial court’s sentencing decision prevails

unless it is “‘overcome by compelling evidence portraying in a positive light the

nature of the offense’ and ‘the defendant’s character.’” Lane, No. 24S-CR-150,

2024 WL 1924947, at *2 (quoting Oberhansley v. State, 208 N.E.3d 1261, 1267

(Ind. 2023)). In conducting this analysis, “we are not limited to the mitigators

and aggravators found by the trial court.” Brown, 10 N.E.3d at 4.

[16] When considering the nature of the offense, we start with the advisory sentence.

Brown, 10 N.E.3d at 4 (citing Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.

2007)). Here, Norton was convicted of battery with a deadly weapon as a Level

5 felony and criminal recklessness as a Level 6 felony. A Level 5 felony

conviction carries a sentence between two and eight years with an advisory

sentence of four years, I.C. § 35-50-2-6(b), and a Level 6 felony carries a

sentence between six months and three years with an advisory sentence of one

year, id. § 35-50-2-7(b). The trial court imposed a seven-year aggregate sentence

to be served in the DOC.

[17] Where, as here, the trial court deviated from the advisory sentence, one factor

we consider is “whether there is anything more or less egregious about the

Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 9 of 12 offense committed by the defendant that makes it different from the ‘typical’

offense accounted for by the legislature when it set the advisory sentence.”

T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016) (quoting

Holloway v. State, 950 N.E.2d 803, 806–07 (Ind. Ct. App. 2011)), as amended

(May 26, 2023). We also consider whether the offense was “accompanied by

restraint, regard, and lack of brutality.” Stephenson v. State, 29 N.E.3d 111, 122

(Ind. 2015).

[18] Norton’s crime was particularly egregious. On the night of the shooting,

Norton had been drinking for hours when he decided to grab his gun before

driving drunk to Hardy’s. Once he got to Hardy’s, he continued to drink and

later started an argument with a group that was trying to order drinks at the bar.

Norton contends that his decision to shoot was “made in a flash” because he

felt threatened. Appellant’s Br. at 19. However, he shot Artley after the group

had walked away from the situation in an attempt to avoid further

confrontation. Further, Norton continued to shoot Artley after he went to the

ground. Thus, Norton did not show any self-control or restraint while

committing his offenses.

[19] In considering the character of the offender, “we engage in a broad

consideration of a defendant’s qualities,” T.A.D.W., 51 N.E.3d at 1211 (citing

Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on

reh’g), including whether the defendant has “substantial virtuous traits or

persistent examples of good character,” Stephenson, 29 N.E.3d at 122. Norton

has a long history of criminal conduct. We note that, at the time of Norton’s

Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 10 of 12 present offenses, he was on probation for two state felony convictions and on

supervised release for a pending federal felony offense. Starting at the age of 11,

Norton had multiple juvenile adjudications. As an adult, Norton has multiple

felony convictions, including state felony convictions for possession of

methamphetamine and pointing a firearm as well as a federal felony conviction

for receipt of one or more firearms while under felony indictment. Thus,

Norton has not demonstrated he has positive traits or good character that

warrant a revised sentence.

[20] Based on Norton’s offense and his persistent criminal conduct, we cannot say

that he has produced compelling evidence demonstrating that the nature of his

offense or his character renders sentence inappropriate. See Hayko v. State, 211

N.E.3d 483, 487 n.1 (Ind. 2023), reh’g denied (Aug. 18, 2023).

Conclusion [21] The trial court did not commit reversible error in administering its self-defense

jury instruction and did not issue an inappropriate sentence.

[22] Affirmed.

Altice, C.J., and Bradford, J., concur.

ATTORNEY FOR APPELLANT Donald R. Shuler Barkes, Kolbus, Rife & Shuler, LLP Goshen, Indiana

Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 11 of 12 ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Tyler G. Banks Supervising Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-CR-2336 | June 5, 2024 Page 12 of 12