MEMORANDUM DECISION
Mar 03 2015, 9:12 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 C. Borschel Gregory F. Zoeller
Fishers, Indiana Attorney General of Indiana
Kenneth E. Biggins
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Elijah Moore, March 3, 2015
Appellant-Defendant, Court of Appeals Cause No.
49A02-1408-CR-587
v.
Appeal from the Marion Superior
State of Indiana, Court
Honorable Marc T. Rothenberg,
Appellee-Plaintiff.
Judge
Case No. 49G02-1310-MR-65911
Robb, Judge.
Case Summary and Issues
[1] Following a jury trial, Elijah Moore was convicted of felony murder and
attempted robbery as a Class C felony. Moore appeals his convictions, raising
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two issues for our review: (1) whether the trial court erred by denying Moore’s
motion for judgment on the evidence; and (2) whether there was sufficient
evidence to convict Moore, where he claimed his acts were justified by defense
of a third person. Concluding the denial of Moore’s motion for judgment on
the evidence was proper and that there was sufficient evidence to disprove
Moore’s claim of defense of a third person, we affirm.
Facts and Procedural History
[2] In January 2013, Moore initiated a conversation with his girlfriend Kelsey Lang
about his desire to rob someone and asked her if she knew of anyone he could
rob. Lang told Moore that potential targets for a robbery were two men—Cory
Harold and David McMiller—from whom she regularly purchased marijuana.
Moore inquired as to McMiller’s physical stature and whether he kept any
weapons in his home. He also had Lang tell him where the two men hid their
marijuana and explain the layout of their apartment.
[3] Two months later on March 6, 2013, Lang contacted Harold and McMiller
about coming to their apartment to purchase marijuana that day. Harold was
at work, but McMiller told Lang that he would leave the door unlocked for her.
Shortly after Lang’s conversation with McMiller, Moore contacted Lang and
told her that he and Jordan Heath-Gentry wanted to buy some marijuana, and
Lang gave him McMiller’s address.
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[4] Moore and Heath-Gentry drove across town to McMiller’s apartment and
entered through the unlocked front door. After the two men entered, Heath-
Gentry drew a handgun and pointed it at McMiller, demanding money and
marijuana. McMiller then began to fight both Moore and Heath-Gentry,
during which time the gun fell to the floor. At some point, McMiller was able
to retrieve a knife from the kitchen and cut Heath-Gentry’s hand, causing him
to bleed heavily. Moore picked up the gun off the floor and shot McMiller
twice in the torso. Moore and Heath-Gentry then fled the apartment, taking
McMiller’s marijuana with them.
[5] When police arrived at McMiller’s apartment, they found traces of Heath-
Gentry’s blood on the apartment’s stairway bannister, porch, and sidewalk.
The police also found that someone had ransacked the dresser drawers in
Harold’s bedroom and that a small amount of marijuana and approximately
$100 was missing. No blood was found inside Harold’s bedroom.
[6] In August 2013, Officer Chris Craighill obtained a warrant to gather DNA
samples from Moore and Heath-Gentry. Officer Craighill showed Moore a
picture of McMiller and told Moore his name came up in a homicide
investigation, but Moore pretended not to recognize McMiller or know
anything about a homicide at McMiller’s apartment. However, Moore later
gave a statement in October admitting that he shot McMiller but claiming that
he did not know Heath-Gentry rode with him to McMiller’s apartment with the
intention of robbing McMiller.
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[7] On October 8, 2013, the State charged Moore with Count 1, felony murder, and
Count 2, attempted robbery, a Class A felony. The charging information was
later amended to add Count 3, intentional murder. A two-day jury trial began
on June 30, 2014. At the close of the State’s case-in-chief, Moore made a
motion for judgment on the evidence, arguing the State failed to present
evidence on the “knowingly” element of attempted robbery. The trial court
denied Moore’s motion, and the jury found Moore guilty of all three counts.
[8] At sentencing, the trial court vacated Count 3 and reduced Count 2 to a Class C
felony. Moore was sentenced to fifty-eight years on Count 1 and five years on
Count 2, to be served concurrently. This appeal followed.
Discussion and Decision
I. Judgment on the Evidence
[9] Moore claims the trial court erred by denying his motion for judgment on the
evidence. We apply the same standard of review for a denial of a motion for
judgment on the evidence as for a claim of insufficient evidence. Jones v. State,
472 N.E.2d 1255, 1259 (Ind. 1985). When reviewing a defendant’s claim of
insufficient evidence, the reviewing court will neither reweigh the evidence nor
judge the credibility of the witnesses, and we must respect “the jury’s exclusive
province to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126
(Ind. 2005) (citation omitted). We consider only the probative evidence and
reasonable inferences supporting the verdict. Id. And we must affirm “if the
probative evidence and reasonable inferences drawn from the evidence could
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have allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.” Id. (citation omitted).
[10] Moore maintains that there is no evidence that he “knowingly” committed the
crime of attempted robbery. According to Moore, he drove to McMiller’s
apartment with Heath-Gentry only to purchase marijuana, and he did not know
that Heath-Gentry intended to rob McMiller once they arrived.
[11] To prove Moore committed the crime of attempted robbery, the State was
required to prove that he (1) took a substantial step toward (2) knowingly or
intentionally (3) taking property from another person (4) by force or threat of
force or by putting any person in fear. See Ind. Code § 35-41-5-1; Ind. Code §
35-42-5-1. A person acts “knowingly” if, when he engages in the conduct, he is
aware of a high probability that he is doing so. Ind. Code § 35-41-2-2(b).
[12] In Indiana, there is no distinction between the criminal liability of a principal
and an accomplice “who knowingly or intentionally aids, induces or causes
another person to commit an offense . . . .” See Wise v. State, 719 N.E.2d 1192,
1198 (Ind. 1999) (quoting Ind. Code § 35-41-2-4). Factors considered in
determining whether a person aided another in commission of a crime include
“(1) presence at the scene of the crime; (2) companionship with another
engaged in criminal activity; (3) failure to oppose the crime; and (4) a
defendant’s conduct before, during, and after the occurrence of the crime.”
Garland v. State, 788 N.E.2d 425, 431 (Ind. 2003).
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[13] The facts of this case are such that a jury could reasonably conclude that Moore
knowingly participated in the crime of attempted robbery. Moore’s
predisposition for committing this particular crime is shown by Lang’s
testimony that Moore asked if she knew of anyone whom he could rob, and
upon learning about Harold and McMiller’s apartment, Moore asked about
their physical stature, for a description of the apartment layout, and where they
hid their drugs.
[14] Consideration of the factors set out in Garland also allow for an inference that
Moore was a willing participant. Moore was present at the crime scene for the
entirety of the attempted robbery, and there is clear evidence of companionship
between Moore and Heath-Gentry, as the two men were friends and drove
together to McMiller’s apartment. Moore’s conduct during and after the crime
would also allow the jury to infer his guilt. When McMiller and Heath-Gentry
tussled, Moore aided Heath-Gentry and also fought against McMiller before
eventually shooting him twice in the torso. Further, Moore stole marijuana
from the apartment after shooting McMiller, contradicting his claim that he had
no intent to rob McMiller. Finally, the police found no traces of Heath-
Gentry’s blood in Harold’s ransacked bedroom, allowing for an inference that
Moore—not Heath-Gentry—was the one who stole marijuana and money from
Harold’s room after McMiller was shot.
[15] The evidence in this case was sufficient to allow the jury to find Moore guilty of
attempted robbery. Therefore, the trial court did not err by denying Moore’s
motion for judgment on the evidence.
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II. Defense of a Third Person
[16] Second, Moore argues that his act of shooting McMiller was justified by his
desire to defend Heath-Gentry. As to Moore’s right to defend himself or a third
person by way of deadly force, Indiana law provides:
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.
[17] Ind. Code § 35-41-3-2(c). To prevail on a claim of self-defense or defense of a
third person, the defendant must show 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.” Simpson
v. State, 915 N.E.2d 511, 514 (Ind. Ct. App. 2009) (quotation omitted), trans.
denied. When a defendant claims defense of a third person, the State bears the
burden of disproving at least one of the necessary elements beyond a reasonable
doubt. Id. The State may do so either by affirmatively rebutting the claim of
self-defense or by simply relying on the sufficiency of evidence presented in its
case in chief. Id. Our standard of review is the same as it is for any claim of
insufficient evidence. Id.
[18] Moore cannot succeed by claiming defense of a third person. There is sufficient
evidence to prove that Moore went to McMiller’s apartment with the intent to
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rob him and that Moore and Heath-Gentry entered the apartment without
permission from McMiller. Thus, Moore and Heath-Gentry were not in a place
where they had a right to be at the time Moore shot McMiller. Furthermore,
Heath-Gentry instigated the violence by pointing a gun at McMiller inside
McMiller’s own home, and Moore then willingly participated in the fight that
eventually led to him shooting and killing McMiller. Under these
circumstances, there is sufficient evidence to rebut Moore’s defense of a third
person claim.
Conclusion
[19] Concluding there was sufficient evidence to prove Moore knowingly committed
attempted robbery and to disprove Moore’s claim of defense of a third person,
we affirm.
[20] Affirmed.
Bailey, J., and Brown, J., concur.
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