MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be Feb 10 2016, 6:13 am
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
Patricia Caress McMath Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anthony Middleton, February 10, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1507-CR-901
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark Stoner,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G06-1408-MR-40262
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1507-CR-901 |February 10, 2016 Page 1 of 8
[1] Anthony Middleton appeals his conviction of and sentence for murder. 1 He
argues the State did not sufficiently rebut his claim of self-defense and his
sentence is inappropriate based on his character and the nature of the crime.
We affirm.
Facts and Procedural History
[2] Middleton bought drugs from Timothy Guyton multiple times on August 15,
2014. It was common for Guyton or his girlfriend, Michellee, 2 to hold a gun
when answering the door, take the purchaser to the kitchen, put down the gun,
and weigh out the desired amount of crack.
[3] On August 16, Middleton knocked on Guyton’s door and Michellee answered
the door holding a gun. Middleton asked to buy a gram of crack and Michellee
said she couldn’t sell him that amount. Middleton got “a little upset,” (Tr. at
111), went to the room where Guyton was sleeping, and started to shake
Guyton to wake him up.
[4] Guyton eventually agreed to sell Middleton $40 worth of crack. Sallie Proctor,
Michellee’s friend, was sitting on the steps near the kitchen. Guyton went to
the kitchen to weigh the drugs, and Michellee placed the gun on the counter
next to the scales. Guyton picked up the gun, put it in his right back pocket,
1
Ind. Code § 35-42-1-1 (2007).
2
The parties and the Record list three different last names for Michellee - Watson, Rodenbeck, and Foush.
To minimize confusion, we will refer to Michellee by her first name.
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and said, “Let me get my piece before somebody grabs it.” (Id. at 70.)
Middleton said, “What are you going to do pop me, cuz?” (Id. at 71.)
Middleton then “took his right arm and he reached around . . . to reach
[Guyton’s] back pocket.” (Id. at 72.)
[5] Guyton “raised his left arm” and “swung around,” (id. at 73), to prevent
Middleton from taking the gun. Middleton held Guyton in a “bear hug,” (id. at
117), and the two men wrestled to the floor. When they fell, the gun dropped
to the floor. Middleton grabbed the gun and pointed it at Guyton, who put his
arms in the air. Middleton said to Guyton, “Back up, I don’t want to hurt
you.” (Id. at 74-5.) Proctor fled the room and Michellee left the kitchen to call
for help.
[6] Michellee returned to the kitchen and saw Middleton beating Guyton in the
head with the gun. She decided to call 911 and left the house. As she left the
house, she heard a single gunshot and Guyton yelled, “Somebody help me.”
(Id. at 133.) When officers arrived on the scene, Guyton was dead and the
officers arrested Middleton.
[7] During trial, Middleton offered an affirmative defense of self-defense. The jury
returned a guilty verdict on Middleton’s murder charge. The trial court
sentenced Middleton to sixty years for murder.
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Discussion and Decision
Self-Defense
[8] Self-defense is a legal justification for what would otherwise be a criminal act.
Brown v. State, 738 N.E.2d 271, 273 (Ind. 2000). A person is justified in using
“reasonable force” against another to protect himself from what he reasonably
believes to be the imminent use of unlawful force. Id.; see also Ind. Code § 35-
41-3-2 (use of reasonable force to defend self). To prevail on a claim of self-
defense, the defendant must present evidence that he: (1) was in a place 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 v.
State, 770 N.E.2d 799, 800 (Ind. 2002). An initial aggressor or a mutual
combatant, whether or not the initial aggressor, must withdraw from the
encounter and communicate the intent to do so to the other person before he
may claim self-defense. Id. at 801.
[9] When a defendant claims he acted in self-defense, the State must disprove or
rebut at least one element of self-defense beyond a reasonable doubt. Carroll v.
State, 744 N.E.2d 432, 433 - 34 (Ind. 2001). The State may do so by presenting
additional evidence or by relying on the evidence in its case-in-chief. Id. 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 of the evidence
claim. Wilson, 770 N.E.2d at 801. We neither reweigh the evidence nor judge
the credibility of witnesses. Id. If there is sufficient evidence of probative value
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to support the conclusion of the trier of fact, then the verdict will not be
disturbed. Id.
[10] Middleton argues the State did not rebut his claim of self-defense. At trial,
Middleton claimed he felt threatened when Guyton picked the gun up off the
counter and said, “Let me get my piece before somebody grabs it.” (Tr. at 70.)
Middleton argued he withdrew from the fight and attempted to end it when he
said to Guyton, “I don’t want to hurt you. I don’t want to shoot you.” (Id. at
344.) Middleton argues, “[t]here is simply no evidence presented by the State
as to what happened immediately before Middleton was hitting Guyton on the
head or immediately after” because Proctor and Michellee, the only two
witnesses, had left the room. (Br. of Appellant at 8-9.)
[11] The State rebutted Middleton’s self-defense claim by presenting evidence
Middleton was the initial aggressor in the altercation that led to Guyton’s
death. The State presented evidence Middleton made the first aggressive move
when he “took his right arm and he reached around . . . to reach [Guyton’s]
back pocket.” (Tr. at 72.) When Guyton picked the gun up from the counter,
he did not threaten or act aggressively towards Middleton. At some point after
Middleton grabbed the gun, he began beating Guyton with it before he shot
Guyton. Middleton’s alternate version of the facts is an invitation for us to
reweigh evidence and judge the credibility of witnesses, which we cannot do.
See Wilson, 770 N.E.2d at 801 (appellate court does not reweigh evidence or
judge the credibility of witnesses).
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Inappropriateness of Sentence
[12] We may revise a sentence if it is inappropriate in light of the nature of the
offense and the character of the offender. Williams v. State, 891 N.E.2d 621, 633
(Ind. Ct. App. 2008) (citing Ind. Appellate Rule 7(B)). We consider not only
the aggravators and mitigators found by the trial court, but also any other
factors appearing in the record. Roney v. State, 872 N.E.2d 192, 206 (Ind. Ct.
App. 2007), trans. denied. The appellant bears the burden of demonstrating the
sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[13] When considering the nature of the offense, the advisory sentence is the starting
point to determine the appropriateness of a sentence. Anglemyer v. State, 868
N.E.2d 482, 494 (Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The
advisory sentence for murder is fifty-five years, with a sentencing range between
forty-five and sixty-five years. Ind. Code § 35-50-2-3(a). The trial court
sentenced Middleton to sixty years.
[14] One factor we consider when determining the appropriateness of a deviation
from the advisory sentence is whether there is anything more or less egregious
about the offense committed by the defendant that makes it different from the
“typical” offense accounted for by the legislature when it set the advisory
sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 2008), trans. denied.
Middleton argues the murder was “less egregious” than the typical offense
because Middleton was “in fear of getting shot.” (Br. of Appellant at 12.) The
State presented evidence Middleton was agitated when he entered Guyton’s
residence, woke Guyton up by shaking him so Middleton could buy drugs, was
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the initial aggressor, and beat Guyton with the gun before shooting him. We
cannot hold Middleton’s sentence inappropriate based on the nature of the
crime.
[15] When considering the character of the offender, one relevant fact is the
defendant’s criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct.
App. 2007). The significance of a criminal history in assessing a defendant’s
character varies based on the gravity, nature, and number of prior offenses in
relation to the current offense. Id. Middleton has twelve prior felony
convictions and three misdemeanor convictions. Middleton has had eight
petitions filed against him to revoke his probation, one parole violation, and
one community corrections violation. We acknowledge Middleton’s assertion
the acts that led to his prior convictions were relatively non-violent. But his
criminal history, which includes convictions of Class B felony burglary and
possession of a handgun without a license indicate the seriousness of his
criminal activity has escalated. We cannot hold Middleton’s sentence
inappropriate based on his character.
Conclusion
[16] The State presented sufficient evidence Middleton did not act in self-defense.
His sixty-year sentence is not inappropriate based on his character or the nature
of the crime. Accordingly, we affirm.
[17] Affirmed.
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Najam, J., and Riley, J., concur.
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