Ron C. Stewart v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 9, 2017
• Docket: 49A02-1604-CR-740
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Aug 09 2017, 6:19 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Ann Johnson Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana Caryn N. Szyper Deputy Attorney General Frederick Vaiana Indianapolis, Indiana Voyles Zahn & Paul Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ron C. Stewart, August 9, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1604-CR-740 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Kurt Eisgruber, Appellee-Plaintiff Judge Trial Court Cause No. 49G01-1505-F2-15772

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 1 of 12 [1] Ron C. Stewart appeals his conviction of Level 2 felony voluntary

manslaughter, 1 a lesser included offense of murder. Stewart raises two issues on

appeal:

1. Whether the State presented sufficient evidence to disprove Stewart’s claim of self-defense; and

2. Whether the trial court erred in instructing the jury on self- defense.

[2] We affirm.

Facts and Procedural History [3] On May 3, 2015, Nicholas Norris and his girlfriend, Amanda Patton, were

riding his motorcycle in Indianapolis. They were riding alongside another

motorcycle carrying two friends, Ryan and Rachel Harrison. Both motorcycles

were cut off by a Dodge Durango driven by Stewart. The motorcycles pulled

up beside the Durango at the next red light, and Norris began to yell at Stewart

about cutting them off. Stewart held up a handgun and said, “You just need to

keep goin [sic].” (Tr. Vol. II at 382.) When the light turned green, Stewart

quickly sped away from the motorcycles and then pulled into a nearby pawn

shop parking lot. Norris and Harrison followed the Durango into the parking

lot and positioned their motorcycles a couple feet in front of the Durango near

1 Ind. Code § 35-42-1-3 (2014).

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 2 of 12 the parking lot exit. Stewart then backed away from the motorcycles, but

Norris rode his motorcycle forward and stopped near the front passenger side

door of the Durango. As Stewart tried to drive around Norris’ motorcycle,

Norris hit the Durango with a “monkey ball,” described at trial as “a self

defense [sic] weapon.” 2 (Tr. Vol. I at 126.)

[4] Stewart then drove the Durango toward the parking lot exit and stopped about

“ten car lengths” from Norris’ motorcycle. (Id. at 56.). Norris was still on his

motorcycle, but Patton was not. Stewart exited his Durango, walked to the

back of the vehicle, and fired his weapon six times in the direction of the

motorcyclists. Norris fell to the ground after being shot in his left shoulder and

the back of his head. After firing the shots, Stewart got back into the Durango

and drove away. Norris died during the ambulance ride to the hospital.

[5] Stewart drove to his mother’s house to tell her about the incident. His mother

lived with Yeozenith Eaton. Eaton testified that when Stewart was telling him

about the shooting, Stewart said “he was defending hisself [sic] and his

vehicle,” (id. at 100), and that he “fired until the guy went down.” (Id. at 102.)

Eaton encouraged Stewart to turn himself in to police, and when Stewart

refused, Eaton told him to get away from the house.

2 Ryan Harrison described the item as a key chain with a rubber ball that is “basically a safety measure . . . somethin [sic] to kind of alert the car that you’re about to run us over.” (Tr. Vol. I at 148-49.) Mark Wallace of the Marion County Forensic Services Agency described the “monkey ball” “as a lanyard with a ball at one end and a . . . silver metal attachment at the other end.” (Tr. Vol. II at 264.)

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 3 of 12 [6] Stewart eventually drove to a nearby hotel where he paid for a week-long stay.

Eaton called police and informed them Stewart admitted shooting someone.

Ryan Harrison, one of the motorcyclists at the scene, picked Stewart’s

photograph out of a six-person photograph array. Two days after the shooting,

police found Stewart at his hotel and arrested him. Inside the hotel room,

police found Stewart’s wallet, keys, and cell phone. On Stewart’s cell phone

were searches for travel to Florida, extended stays at a hotel, and temporary

housing in Florida. He searched for web articles about road rage, and,

specifically, news stories related to him shooting Norris. Police also found

multiple searches on Stewart’s phone regarding the Wikipedia pages for the

“duty to retreat,” (id. at 212), and “stand your ground” laws. (Id.)

[7] The State initially charged Stewart with Level 2 felony voluntary manslaughter,

but later amended the charge to murder. 3 After a one-day jury trial, the jury

found Stewart not guilty of murder, but guilty of the lesser included offense of

voluntary manslaughter. The trial court imposed a fourteen-year sentence, with

ten years executed in the Department of Correction, two years executed in

community corrections, two years suspended, and one year of probation.

Discussion and Decision

3 Ind. Code § 35-42-1-1 (2014).

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 4 of 12 Sufficiency of the Evidence [8] Stewart does not dispute he shot and killed Norris. Instead, he argues the State

presented insufficient evidence to disprove his claim of self-defense beyond a

reasonable doubt.

[9] The standard of review for a challenge to the sufficiency of evidence to rebut a

claim of self-defense is the same standard used for any claim of insufficient

evidence. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). We neither

reweigh the evidence nor judge the credibility of witnesses. Walker v. State, 998

N.E.2d 724, 726 (Ind. 2013). A conviction will be affirmed if there is sufficient

evidence of probative value to support the trier of fact’s conclusion. Wilson v.

State, 770 N.E.2d 799, 801 (Ind. 2002).

[10] To prove Stewart committed Level 2 felony voluntary manslaughter, the State

needed to present evidence Stewart: 1) knowingly or intentionally, 2) killed

another human being, 3) while acting under sudden heat. See Ind. Code § 35-

42-1-3 (2014). “The existence of sudden heat is a mitigating factor that reduces

what otherwise would be murder under section 1(1) of this chapter to voluntary

manslaughter.” Ind. Code § 35-42-1-3(b) (2014).

[11] “A valid claim of self-defense is legal justification for an otherwise criminal

act.” Wallace, 725 N.E.2d at 840.

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;

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 5 of 12 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.

Ind. Code § 35-41-3-2(c) (2013).

[12] To prove he acted in self-defense, the defendant must demonstrate that he: (1)

was in a place where 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, 770 N.E.2d at 800; Ind. Code § 35-41-3-2 (2013).

Force is not justified if the person asserting self-defense 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.” Ind. Code § 35-41-3-2(g)(3). Before claiming self-defense, “a

mutual combatant, whether or not the initial aggressor, must declare an

armistice.” Wilson, 770 N.E.2d at 801. “Where a person has used more force

than is necessary to repel an attack the right to self-defense is extinguished, and

the ultimate result is that the intended victim then becomes the perpetrator.”

Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995), trans denied.

[13] When a defendant meets his initial burden as to self-defense, “the State has the

burden of negating at least one of the necessary elements.” King v. State, 61

N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied. “The State may meet this

burden by rebutting the defense directly, by affirmatively showing the defendant

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 6 of 12 did not act in self-defense, or by simply relying upon the sufficiency of its

evidence in chief.” Id. If a defendant is convicted despite his claim of self-

defense, we will reverse only if no reasonable person could say that self-defense

was negated beyond a reasonable doubt. Wilson, 770 N.E.2d at 800-01.

[14] Stewart argues the State did not meet its burden of disproving his claim of self-

defense because the State did not negate an essential element of self-defense.

Specifically, Stewart contends that he acted without fault and only fired his

weapon because he had a reasonable fear for his life. We disagree.

[15] It is undisputed that by being on the road and in a pawn shop parking lot,

Stewart was in a place he had a right to be. Stewart states that he acted without

fault, and he was forced to unwillingly participate in the fighting after repeated

aggressive acts from Norris. Stewart further argues that he fired his weapon

that day because he was in a state of reasonable fear for his safety, as he

believed the motorcyclists to be members of a gang called “The Outlaws.” (Tr.

Vol. II at 379.) He stated at trial, “I felt like I was gonna [sic] lose my life – if it

wasn’t to them [sic] it was gonna [sic] be me.” (Id. at 388.)

[16] However, Stewart testified that he never saw Norris or the other motorcyclists

with a gun. The only weapon Stewart testified to seeing was an object Norris

was swinging which “looked like a ball with two hooks hangin [sic] from it.”

(Id. at 380.) Stewart was near the exit of the pawn shop parking lot, and the

motorcyclists were ten car lengths away dismounting from their bikes, when

Stewart exited his Durango and shot at the motorcyclists. As Stewart had a

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 7 of 12 way to exit the situation without resorting to deadly force, he cannot

demonstrate he had a reasonable fear of death or great bodily harm. See Porter

v. State, 543 N.E.2d 390, 391 (Ind. 1989) (self-defense not available when

“appellant had ample opportunity to retreat from the scene and obviate the

necessity of inflicting wounds upon the victim”). Further, one of Stewart’s

shots struck Norris in the back of the head, indicating Norris was turned away

from Stewart. See Jordan v. State, 656 N.E.2d 816, 817-18 (Ind. 1995)

(defendant did not have a valid assertion of self-defense when defendant was

the first to display a weapon and shot the victim in the back), reh’g denied.

[17] In addition, the evidence presented at trial revealed Stewart willingly entered

into mutual combat with Norris by holding up his gun at the red light when

Norris yelled at Stewart for cutting off the motorcycles. Thus, in order for

Stewart to have a valid claim he shot Norris in self-defense, he would have had

to withdraw from the mutual combat with Norris and communicate his

withdrawal to Norris, and then Norris would have had to reengage in combat

with Stewart before Stewart could be deemed to have acted in self-defense. The

record shows that Stewart did not withdraw from the situation or if he did, he

did not communicate his withdrawal to Norris. Further, if Stewart had

withdrawn, Norris was sitting on his motorcycle and had not reengaged Stewart

in combat. See Sudberry v. State, 982 N.E.2d 475, 481-82 (Ind. Ct. App. 2013)

(sufficient evidence to rebut claim of self-defense where defendant was a mutual

combatant, did not withdraw from the fight or communicate his intent to

withdraw, and used more force than necessary to repel his attacker).

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 8 of 12 [18] Stewart’s argument that the State presented insufficient evidence to negate his

self-defense claim is merely an invitation to reweigh the evidence and judge the

credibility of witnesses, which we will not do. See Wilson, 770 N.E.2d at 801.

As there was substantial evidence of probative value to support the jury’s

finding of guilt, we hold the evidence was sufficient. See, e.g., id. (holding

evidence sufficient to rebut defendant’s claim of self-defense where defendant

was retaliating against initial aggressor and did not withdraw).

Self-Defense Instruction [19] Next, Stewart argues the trial court abused its discretion in not instructing the

jury with his proposed final instructions for his self-defense claim. “The

purpose of jury instructions is to inform the jury of the law applicable to the

facts without misleading the jury and to enable it to comprehend the case

clearly and arrive at a just, fair, and correct verdict.” Murray v. State, 798

N.E.2d 895, 899 (Ind. Ct. App. 2003). When reviewing jury instruction

decisions for an abuse of discretion, we consider: (1) whether the instruction

correctly states the law; (2) whether there was evidence in the record to support

the instruction; and (3) whether the substance of the instruction is covered by

other instructions given. Hollowell v. State, 707 N.E.2d 1014, 1023 (Ind. Ct.

App. 1999). For a trial court to have abused its discretion, “the instructions

given must be erroneous, and the instructions taken as a whole must misstate

the law or otherwise mislead the jury.” Murray, 798 N.E.2d at 900.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 9 of 12 [20] Stewart does not dispute that the trial court’s self-defense instruction correctly

stated the law and was clearly supported by the evidence. However, Stewart

contends the instruction given to the jury at trial “was incomplete in the sense

that, while it accurately outlined the jury’s duty in finding a self-defense claim,

it failed to instruct how to arrive at its verdict if it made such a finding.”

(Appellant’s Br. at 16). Stewart’s proposed final jury instruction read as

follows:

It is an issue whether the Defendant acted in self-defense.

A person may use reasonable force against another person to protect himself from what he reasonably believes to be the imminent use of unlawful force.

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.

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

If you find that the State has failed to prove beyond a reasonable doubt that the Defendant did not act in self-defense, you must find the Defendant NOT GUILTY of all charges.

(App. Vol. II at 109) (emphasis added).

[21] The trial court instead issued the pattern instruction on self-defense, which read:

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 10 of 12 A person is justified in using reasonable force against another person to protect himself or a third person from what the person reasonably believes to be the imminent use of unlawful force.

However, a person is justified in using deadly force and does not have a duty to retreat, 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 felony.

A person may not use force if:

• He is committing a crime that is directly and immediately related to the confrontation;

• He is escaping after the commission of a crime that is directly and immediately connected to the confrontation;

• He provokes unlawful action by another person, with intent to cause bodily injury to the other person; or

• He enters into combat with another person or is the initial aggressor unless he 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.

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

(Id. at 122.)

[22] Essentially, Stewart’s argument on appeal is that because the trial court’s jury

instruction did not inform the jury of its duty to find him not guilty in the event Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 11 of 12 the State did not negate Stewart’s self-defense claim, that instruction stands

apart from the other jury instructions and misled the jury. We disagree.

[23] The trial court used the Indiana Pattern Jury Instruction for self-defense, and

the pattern instruction “tracks the language of the self-defense and defense of

another statute.” Washington v. State, 997 N.E.2d 342, 349 (Ind. 2013). The

pattern instruction is also a correct statement of law. Id. at 350 (“the instruction

given in the present case by the trial court was a correct statement of the law”).

Accordingly, the trial court did not abuse its discretion when it declined to

instruct the jury with the defendant’s proposed final instruction because Indiana

Pattern Jury Instruction 10.03A is a correct statement of law and properly

instructed the jury on self-defense. See id. (trial court’s use of the pattern

instruction on self-defense instead of the defendant’s proffered instructions was

not an abuse of its discretion).

Conclusion [24] The State presented sufficient evidence to negate Stewart’s claim of self-defense

beyond a reasonable doubt. Furthermore, the trial court did not abuse its

discretion when it instructed the jury regarding self-defense. Accordingly, we

affirm.

[25] Affirmed.

Brown, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-740 | August 9, 2017 Page 12 of 12