Leonard Bond v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 22, 2015
• Docket: 49A04-1412-CR-554
• Status: Published

Opinion

MEMORANDUM DECISION May 22 2015, 5:35 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be 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 Michael R. Fisher Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Leonard Bond, May 22, 2015

Appellant-Defendant, Court of Appeals Case No. 49A04-1412-CR-554 v. Appeal from the Marion Superior Court. The Honorable Marc Rothenberg, State of Indiana, Judge. Appellee-Plaintiff Cause No. 49G02-1304-MR-25924

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015 Page 1 of 9 [1] Leonard Bond appeals his conviction and sentence for Murder,1 a felony. He

argues that the State failed to present sufficient evidence to rebut his claim of

self-defense and that his sentence is inappropriate in light of the nature of the

offense and his character. Finding no error, we affirm.

Facts [2] At approximately 5:00 am on April 20, 2013, Bond and his girlfriend, Louisa

Tranbarger, went to a Denny’s restaurant in Marion County. Bond had a gun

visibly protruding from his right pocket. Several of the other patrons at

Denny’s were concerned about the gun and asked a member of the wait staff if

it was legal for a person to bring a gun into the restaurant.

[3] Bond and Tranbarger ordered drinks and then walked to the crane machine

near the entrance of the Denny’s. At approximately 5:30 am, Mario Wilson,

his fiancée, Karen Dunbar, Annette Smith, and Carl Smith arrived at the

Denny’s. When they entered the restaurant and passed Bond and Tranbarger,

Bond said “look at [the] old people, what just dragged in at night when they get

old.” State’s Ex. 4. The four ignored this statement and continued to their

table.

[4] The group was seated at a window table close to the entrance. Sometime after

they had been seated, Bond and Tranbarger sat down at a booth directly behind

1 Ind. Code § 35-42-1-1.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015 Page 2 of 9 them. Bond again began making comments about how old the group was. At

that point, Wilson and Dunbar turned around to ask Bond if he had a problem

with them. Bond stated that he did not, but continued to talk about old people

being out at night. The other patrons in the restaurant heard raised voices and

became uncomfortable, as they knew that Bond was carrying a gun.

[5] At some point, Bond got up because he was upset and went to the bathroom.

As he passed Wilson’s table, Bond lifted up his shirt in a way that allowed

others to see the gun he was carrying. When Bond returned, he and Wilson

began to argue again, this time more loudly. This made other patrons so

nervous that they decided to leave.

[6] Eventually, Bond stood up and tossed money for his meal on the table. He then

turned around, flipped off Wilson with his middle finger, and told Wilson they

could take the fight outside. Wilson ignored this and continued talking to the

group at his table. Bond and Tranbarger walked outside of the Denny’s, but

they did not leave. Instead, Bond began banging on the window next to

Wilson’s table with his fist and then tapped on it with his gun. Bond motioned

to Wilson that he should come outside.

[7] Tranbarger told Bond they should leave, but Bond walked back towards the

Denny’s. Wilson stood up and yelled, “do not let that man back in.” Id.

Wilson then walked towards the entrance. Wilson then went outside, and

Bond shot him three times. Wilson was unarmed.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015 Page 3 of 9 [8] Dunbar and Carl Smith then went outside, where they saw Wilson hanging

from Bond’s arm in an attempt to stay upright. Dunbar and Carl Smith

wrestled Bond to the ground, where they kept him until the police came and

handcuffed him.

[9] Wilson was transported to the hospital, where he died as a result of his gunshot

wounds. One bullet had fractured his left cheek and lacerated the right carotid

artery, another struck his chin, and a third hit his right shoulder and lacerated

the right brachial artery. The autopsy showed that Bond was more than three

feet away from Wilson when he shot him. Any of the three shots would have

been fatal.

[10] On April 22, 2013, the State charged Bond with murder, a felony, and carrying

a handgun without a license, a class A misdemeanor. In addition, the State

alleged that Bond’s sentence should be enhanced because he used a firearm in

the commission of a felony. On June 27, 2013, Bond filed a notice of

affirmative defense, and the jury was given an instruction on self-defense at

trial. On June 4, 2014, Bond pleaded guilty to carrying a handgun without a

license.

[11] Bond’s three-day jury trial commenced on September 15, 2014. At trial, the

State presented the testimony of Dunbar, Carl Smith, and Annette Smith, as

well as the testimony of three restaurant patrons and a waitress who were

present during the shooting. Bond testified that he shot Wilson in self-defense

because Wilson kept “coming directly at” him after he told him to stop. Tr. p.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015 Page 4 of 9 290. However, Bond also testified that he was not sure if Wilson was armed

and admitted that Wilson had not threatened him or physically touched him

before he shot him. Tranbarger also testified that Wilson had not threatened or

touched Bond before Bond shot him and that Wilson was shot almost as soon

as he walked out of the door of the restaurant.

[12] The jury found Bond guilty of murder. On September 17, 2014, the trial court

sentenced Bond to three hundred and sixty-five days for the carrying a handgun

without a license conviction. On November 5, 2014, the trial court sentenced

Bond to fifty-eight years for the murder conviction. The sentences were ordered

to run concurrently. Bond now appeals.

Discussion and Decision I. Sufficiency of the Evidence [13] Bond first argues that there was insufficient evidence to support his conviction

for murder because the State failed to disprove his claim of self-defense. When

an appellant challenges the sufficiency of the evidence rebuting a claim of self-

defense, we apply the same standard of review as that applied to sufficiency of

the evidence claims generally. McCullough v. State, 985 N.E.2d 1135, 1138 (Ind.

Ct. App. 2013). We neither reweigh the evidence nor judge the credibility of

the witnesses. Id. at 1139. We will not disturb the verdict if there is sufficient

evidence of probative value to support the trier of fact's conclusion. Id. We will

reverse only if we determine that no reasonable person could find that the State

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015 Page 5 of 9 presented sufficient evidence to negate self-defense beyond a reasonable doubt.

Id. at 1138.

[14] Indiana Code section 35-41-3-2 provides that “[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 is not justified in using force if “the person has

entered into combat with another person or is the initial aggressor unless the

person withdraws from the encounter and communicates to the other person

the intent to do so and the other person nevertheless continues or threatens to

continue unlawful action.” I.C. § 35-41-3-2(g)(3). In addition, a defendant who

raises a claim of self-defense is required to show three things: (1) he was in a

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

reasonable fear of death or serious bodily harm. Id. The State then bears the

burden of disproving at least one of these elements beyond a reasonable doubt.

Id. “The State may meet this burden by rebutting the defense directly, by

affirmatively showing the person did not act in self-defense, or by relying upon

the sufficiency of its evidence in chief.” Id. Whether the State has met its

burden is a question of fact. Id.

[15] Bond claims that the State has failed to disprove any of the above three

elements beyond a reasonable doubt. He claims that the evidence showed he

acted in self-defense because the waitress on duty, Shontel Johnson, testified

that Wilson walked out of the entrance of the Denny’s towards Bond.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015 Page 6 of 9 [16] However, Bond mischaracterizes the evidence. Dunbar testified that Bond was

provoking Wilson from the moment they entered the Denny’s, making

comments about “old people” out at night. Tr. p. 19-22. A Denny’s patron,

Georgette Torres, testified that after the two men had argued loudly, Bond

walked past Wilson and his table and shifted his pants to reveal his gun. Id. p.

70. She also testified that Bond flipped off Wilson with his middle finger and

said they could take the argument outside. Id. at 71. The evidence also showed

that, when Wilson did not respond to his invitation to come outside, Bond

returned to provoke Wilson by tapping on the window next to his booth, first

with his hand and then with his gun. Tr. p. 73-74. The evidence further

showed that when Wilson still did not respond, Bond moved toward the front

door of the Denny’s. Id. at 24. The jury heard testimony that it was at that

point that Wilson yelled “do not let that man back in,” and headed towards the

entrance. Id. at 25.

[17] Furthermore, although Bond argued that he shot Wilson because he would not

stop coming towards him, both Dunbar and Tranbarger testified that Wilson

had barely exited the Denny’s before he was shot. Id. at 25, 315. It is clear

from the above evidence that Bond had several opportunities to withdraw from

any encounter, but chose instead to instigate a confrontation. See McEwen v.

State, 695 N.E.2d 79, 90 (Ind. 1998) (evidence that a defendant was the initial

aggressor and a willing participant in the violence can negate a claim of self-

defense). Therefore, a reasonable jury could determine that Bond did not act in

self-defense. Bond’s request that we reverse his conviction based on Johnson’s

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015 Page 7 of 9 testimony is a request for this court to reweigh the evidence and judge the

credibility of witnesses, a request we decline.

II. Sentencing [18] Bond next argues that his sentence is inappropriate in light of the nature of the

offense and his character. On appeal, this Court “may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the

Court finds that the sentence is inappropriate in light of the nature of the offense

and the character of the offender.” Ind. Appellate Rule 7(B). However, this

Court does not substitute its judgment for that of the trial court. Foster v. State,

795 N.E.2d 1078, 1092 (Ind. Ct. App. 2003). Under Appellate Rule 7(B), the

question is not whether it is more appropriate to impose a different sentence

upon the defendant, but whether the defendant’s sentence is inappropriate.

Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). The defendant

bears the burden of persuading this Court that the sentence he received is

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

[19] Regarding the nature of the offense, Bond instigated the confrontation with

Wilson. He went into a Denny’s displaying a gun he was not licensed to carry.

While armed with this gun, Bond provoked an argument with Wilson. He told

Wilson that he wanted to take their altercation outside. Bond then went

outside the Denny’s, where he had an opportunity to walk away, but instead he

chose to tap on the window with his fist and his gun. When that did not get

Wilson to come outside, he went back inside the Denny’s entrance. When

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015 Page 8 of 9 Wilson left the Denny’s, he was shot almost as soon as he walked out of the

entrance. Wilson was shot three times, from at least three feet away, and any of

the three shots would have been fatal. We do not find that Bond’s sentence was

inappropriate in light of the nature of his offense.

[20] In considering Bond’s character, we note that Bond does have a criminal

history. He has two prior felony convictions for receiving stolen property and

theft. In addition, Bond was on probation at the time he committed the offense

in the instant case. It is clear that Bond has not learned from his past

experiences with the criminal justice system. The crime in the instant case is an

escalation in severity from his past crimes, and it is clear that lenient sentences

have not caused him to reconsider his behavior. We do not find that Bond’s

sentence was inappropriate in light of his character.

[21] The judgment of the trial court is affirmed.

Najam, J., and Friedlander, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1412-CR-554 | May 22, 2015 Page 9 of 9