MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 30 2019, 10:49 am court except for the purpose of CLERK establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Myers Curtis T. Hill, Jr. McKown, Whitehurst and Myers, LLP Attorney General of Indiana Marion, Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Samuel E. Moore, December 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-523 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Newton, Appellee-Plaintiff. Judge Trial Court Cause No. 35D01-1806-CM-424
Mathias, Judge.
[1] Samuel E. Moore (“Moore”) was convicted in Huntington Superior Court of
Class A misdemeanor domestic battery. Moore appeals his conviction and
Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019 Page 1 of 6 argues that the State failed to present sufficient evidence to rebut his claim of
self-defense. We affirm Moore’s conviction.
Facts and Procedural History [2] Moore is seventeen-year-old J.H.’s stepfather. On June 12, 2018, J.H. arrived at
home accompanied by three friends in his friend’s vehicle. He told Moore and
his mother that he was spending the night at a friend’s home. He packed
clothing, said goodbye, and returned to the rear driver’s side seat of his friend
A.R.’s vehicle.
[3] As A.R. drove away from J.H.’s home, J.H. turned up the volume of the music
playing in the car. Moore became angry because the music in the vehicle was
louder than Moore felt was appropriate. Moore got into his truck and followed
A.R.’s vehicle. When he caught up to A.R.’s car, Moore passed the car and
came to a stop in the middle of the road. A.R. had to “stomp” on the brakes to
avoid hitting Moore’s truck. Tr. Vol. 2, p. 29.
[4] Moore exited his truck and approached A.R.’s vehicle. He yelled at J.H. and his
friends that the music was too loud. He threatened to slash the tires, “cut the
speakers” from A.R.’s vehicle and “beat all of [their] asses.” Tr. Vol. 2, pp. 30,
70, 136.
[5] J.H. told Moore not to threaten his friends. Moore then punched J.H. in the
shoulder and arm through the open car window. Tr. Vol. 2, pp. 31, 102. Moore
tried to pull J.H. out of the car by his legs. When J.H. kicked Moore, Moore let
go, and J.H. exited the car. Moore then punched J.H. three times in the face Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019 Page 2 of 6 and ripped J.H.’s shirt. J.H. tried to punch Moore but missed so he pushed
Moore away from him.
[6] Off-duty Huntington Police Department Officer Andrew Ellet (“Officer Ellet”)
was driving home when he saw J.H. and Moore fighting in the middle of the
road. Moore was “in a boxer stance” and “challenging [J.H.] to a fight.” Tr.
Vol. 2, p. 157. J.H. was backing away from Moore.
[7] Officer Ellet called police dispatch and identified himself to Moore and J.H. as
a police officer. The officer told Moore and J.H. to stop fighting. Moore
stopped trying to punch J.H. and yelled to the officer “[w]hat the f**k are you
going to do.” Tr. Vol. 2, p. 158. J.H. also yelled profanity to the officer. Tr. Vol.
2, p. 169.
[8] Moore returned to his truck and drove home. The officer followed him. Officer
Ellet approached Moore while Moore was standing in his driveway. Moore was
upset and yelled at the officer. The officer attempted to discuss the incident with
J.H.’s mother, but Moore interrupted and said, “I chased him to beat his ass . . .
because he was disrespectful.” Tr. Vol. 2, p. 161.
[9] A few minutes later, J.H. and his friends returned to the house because J.H.
wanted to pack the rest of his belongings so that he could move out of Moore’s
home. Shortly thereafter, on-duty uniformed officers arrived. One officer
photographed blood splatter on A.R.’s vehicle. The officers interviewed Moore,
J.H., A.R., and the two other teenagers in the vehicle who witnessed the
incident. Moore admitted to an investigating officer that he chased A.R.’s
Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019 Page 3 of 6 vehicle because of the volume of the music, and that he initiated the physical
altercation by punching J.H. Tr. Vol. 2, pp. 186, 206. J.H. had a black eye, a
swollen lip and scratches on his neck. J.H.’s eye was swollen shut for two days.
Moore did not have any injuries.
[10] On June 14, 2018, the State charged Moore with Class A misdemeanor
domestic battery. A jury trial was held on January 25, 2019. Moore claimed
that he acted in self-defense. The jury found Moore guilty as charged. The trial
court sentenced Moore to 365 days, with 185 days suspended to probation and
180 days served on electronic monitoring. Moore now appeals.
Discussion and Decision [11] Citing his own self-serving testimony at trial, Moore claims that the State failed
to rebut his claim of self-defense. The standard of review for a challenge to the
sufficiency of evidence to rebut a claim of self-defense is the same as the
standard for any sufficiency claim. Wilson v. State, 770 N.E.2d 799, 801 (Ind.
2002). We consider only the probative evidence and reasonable inferences
supporting the trial court’s decision. Tharpe v. State, 955 N.E.2d 836, 844 (Ind.
Ct. App. 2011), trans. denied. We neither reweigh the evidence nor judge the
credibility of witnesses. Wilson, 770 N.E.2d at 801. The trier of fact is entitled to
determine which version of the incident to credit and is the sole judge of the
effect that any discrepancies or contradictions might have on the outcome of the
case. Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied.
Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019 Page 4 of 6 [12] Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,
984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “A person is justified in
using reasonable force against any other person to protect the person . . . from
what the person reasonably believes to be the imminent use of unlawful force.”
Ind. Code § 35-41-3-2(c). The person, however, is not justified in using force if,
among other things, “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).
[13] To prevail on his self-defense claim, Moore had to show that he: “(1) was in a
place where he had a right to be; (2) acted without fault; and (3) was in
reasonable fear o[r] apprehension of bodily harm.” Richardson v. State, 79
N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 30 2019, 10:49 am court except for the purpose of CLERK establishing the defense of res judicata, Indiana Supreme Court Court of Appeals collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William T. Myers Curtis T. Hill, Jr. McKown, Whitehurst and Myers, LLP Attorney General of Indiana Marion, Indiana Sierra A. Murray Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Samuel E. Moore, December 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-523 v. Appeal from the Huntington Superior Court State of Indiana, The Honorable Jennifer E. Newton, Appellee-Plaintiff. Judge Trial Court Cause No. 35D01-1806-CM-424
Mathias, Judge.
[1] Samuel E. Moore (“Moore”) was convicted in Huntington Superior Court of
Class A misdemeanor domestic battery. Moore appeals his conviction and
Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019 Page 1 of 6 argues that the State failed to present sufficient evidence to rebut his claim of
self-defense. We affirm Moore’s conviction.
Facts and Procedural History [2] Moore is seventeen-year-old J.H.’s stepfather. On June 12, 2018, J.H. arrived at
home accompanied by three friends in his friend’s vehicle. He told Moore and
his mother that he was spending the night at a friend’s home. He packed
clothing, said goodbye, and returned to the rear driver’s side seat of his friend
A.R.’s vehicle.
[3] As A.R. drove away from J.H.’s home, J.H. turned up the volume of the music
playing in the car. Moore became angry because the music in the vehicle was
louder than Moore felt was appropriate. Moore got into his truck and followed
A.R.’s vehicle. When he caught up to A.R.’s car, Moore passed the car and
came to a stop in the middle of the road. A.R. had to “stomp” on the brakes to
avoid hitting Moore’s truck. Tr. Vol. 2, p. 29.
[4] Moore exited his truck and approached A.R.’s vehicle. He yelled at J.H. and his
friends that the music was too loud. He threatened to slash the tires, “cut the
speakers” from A.R.’s vehicle and “beat all of [their] asses.” Tr. Vol. 2, pp. 30,
70, 136.
[5] J.H. told Moore not to threaten his friends. Moore then punched J.H. in the
shoulder and arm through the open car window. Tr. Vol. 2, pp. 31, 102. Moore
tried to pull J.H. out of the car by his legs. When J.H. kicked Moore, Moore let
go, and J.H. exited the car. Moore then punched J.H. three times in the face Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019 Page 2 of 6 and ripped J.H.’s shirt. J.H. tried to punch Moore but missed so he pushed
Moore away from him.
[6] Off-duty Huntington Police Department Officer Andrew Ellet (“Officer Ellet”)
was driving home when he saw J.H. and Moore fighting in the middle of the
road. Moore was “in a boxer stance” and “challenging [J.H.] to a fight.” Tr.
Vol. 2, p. 157. J.H. was backing away from Moore.
[7] Officer Ellet called police dispatch and identified himself to Moore and J.H. as
a police officer. The officer told Moore and J.H. to stop fighting. Moore
stopped trying to punch J.H. and yelled to the officer “[w]hat the f**k are you
going to do.” Tr. Vol. 2, p. 158. J.H. also yelled profanity to the officer. Tr. Vol.
2, p. 169.
[8] Moore returned to his truck and drove home. The officer followed him. Officer
Ellet approached Moore while Moore was standing in his driveway. Moore was
upset and yelled at the officer. The officer attempted to discuss the incident with
J.H.’s mother, but Moore interrupted and said, “I chased him to beat his ass . . .
because he was disrespectful.” Tr. Vol. 2, p. 161.
[9] A few minutes later, J.H. and his friends returned to the house because J.H.
wanted to pack the rest of his belongings so that he could move out of Moore’s
home. Shortly thereafter, on-duty uniformed officers arrived. One officer
photographed blood splatter on A.R.’s vehicle. The officers interviewed Moore,
J.H., A.R., and the two other teenagers in the vehicle who witnessed the
incident. Moore admitted to an investigating officer that he chased A.R.’s
Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019 Page 3 of 6 vehicle because of the volume of the music, and that he initiated the physical
altercation by punching J.H. Tr. Vol. 2, pp. 186, 206. J.H. had a black eye, a
swollen lip and scratches on his neck. J.H.’s eye was swollen shut for two days.
Moore did not have any injuries.
[10] On June 14, 2018, the State charged Moore with Class A misdemeanor
domestic battery. A jury trial was held on January 25, 2019. Moore claimed
that he acted in self-defense. The jury found Moore guilty as charged. The trial
court sentenced Moore to 365 days, with 185 days suspended to probation and
180 days served on electronic monitoring. Moore now appeals.
Discussion and Decision [11] Citing his own self-serving testimony at trial, Moore claims that the State failed
to rebut his claim of self-defense. The standard of review for a challenge to the
sufficiency of evidence to rebut a claim of self-defense is the same as the
standard for any sufficiency claim. Wilson v. State, 770 N.E.2d 799, 801 (Ind.
2002). We consider only the probative evidence and reasonable inferences
supporting the trial court’s decision. Tharpe v. State, 955 N.E.2d 836, 844 (Ind.
Ct. App. 2011), trans. denied. We neither reweigh the evidence nor judge the
credibility of witnesses. Wilson, 770 N.E.2d at 801. The trier of fact is entitled to
determine which version of the incident to credit and is the sole judge of the
effect that any discrepancies or contradictions might have on the outcome of the
case. Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied.
Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019 Page 4 of 6 [12] Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,
984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “A person is justified in
using reasonable force against any other person to protect the person . . . from
what the person reasonably believes to be the imminent use of unlawful force.”
Ind. Code § 35-41-3-2(c). The person, however, is not justified in using force if,
among other things, “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).
[13] To prevail on his self-defense claim, Moore had to show that he: “(1) was in a
place where he had a right to be; (2) acted without fault; and (3) was in
reasonable fear o[r] apprehension of bodily harm.” Richardson v. State, 79
N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied. When a claim of self-
defense finds support in the evidence, the State bears the burden of negating at
least one of the necessary elements. 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. Id.
[14] Here, in its case-in-chief, the State presented evidence that Moore was angry
that J.H. and his friends were playing music loudly as they drove away from
Moore’s home. Moore drove his truck to chase down A.R.’s vehicle, passed the
vehicle, and stopped in front of it in the middle of the roadway, causing A.R. to
brake suddenly. Moore exited his truck and yelled at the teenagers that the
Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019 Page 5 of 6 music was too loud. He threatened to slash the tires, “cut the speakers” from
A.R.’s vehicle and to “beat all of [their] asses.” Tr. Vol. 2, pp. 30, 70, 136.
Moore then punched J.H. two times through the open window of A.R.’s
vehicle. After J.H. exited the vehicle, Moore punched him two or three
additional times. J.H. shoved Moore once and tried to punch Moore but
missed. J.H. sustained injuries to his face and neck. Moore was not injured.
[15] Moore was the initial aggressor in the physical encounter with J.H., J.H. did
not threaten Moore, and Moore did not have a reasonable fear of bodily harm.
Moore’s argument that the State failed to rebut his claim of self-defense is
supported only by his own testimony at trial. It was within the province of the
jury to weigh Moore’s credibility, and the State presented probative evidence
from which the jury reasonably determined that Moore did not act in self-
defense. We therefore conclude that the State presented sufficient evidence to
prove that Moore committed Class A misdemeanor domestic battery and affirm
his conviction.
[16] Affirmed.
Robb, J., and Pyle, J., concur.
Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019 Page 6 of 6