Opinion
23A-CR-1087
06-27-2024
Jamarion R.R. Thomas, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Gregory L. Fumarolo. ATTORNEYS FOR APPELLEE Theodore E. Rokita, Steven J. Hosler.
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Allen Superior Court The Honorable David M. Zent Trial Court Cause No. 02D06-2105-MR-10.
ATTORNEY FOR APPELLANT Gregory L. Fumarolo.
ATTORNEYS FOR APPELLEE Theodore E. Rokita, Steven J. Hosler.
MEMORANDUM DECISION
Kenworthy, Judge.
Case Summary
[¶1] Following a jury trial, Jamarion R. R. Thomas was convicted of murder, Level 5 felony criminal recklessness, and Level 6 felony criminal recklessness. The jury also found Thomas used a firearm in committing the offenses. The trial court ordered him to serve an aggregate sentence of seventy-nine years.
Ind. Code § 35-42-1-1(1) (2018).
I.C. § 35-42-2-2(b)(2) (2019).
I.C. § 35-42-2-2(b)(1) (2019).
I.C. § 35-50-2-11 (2021).
[¶2] Thomas appeals, raising three issues for our review: 1. Did the State disprove his claim of self-defense? 2. Did the State present sufficient evidence to support his murder conviction? 3. Is his seventy-nine-year sentence inappropriate?
[¶3] We affirm, concluding the State presented sufficient evidence to support Thomas' convictions and his sentence does not warrant revision.
Facts and Procedural History
[¶4] Twenty-year-old Thomas lived with his mother, Tilonda, in her first-floor apartment in Building 5B of the Eden Green Apartments in Fort Wayne. It was common for people to gather in the Eden Green parking lot at night. Shortly after midnight on May 22, 2021, Thomas, his older sister Talazia, and several friends returned to Eden Green from a night out. They had been "driving around getting food and stuff" and visiting Thomas and Talazia's great grandmother. Tr. Vol. 2 at 24. Thomas had a rifle with him throughout the evening. At roughly the same time, Tilonda and her sister also returned to Eden Green. As the group headed from the parking lot toward Building 5B, Tilonda and "a couple of like older men" in the parking lot began arguing. Tr. Vol. 1 at 242. Thomas "got a little bit upset," raised the rifle he was carrying and fired a shot into the air. Tr. Vol. 2 at 28. Tilonda and her sister "just kept talking" outside while Thomas went into the building. Tr. Vol. 1 at 244. Thomas came back outside a few minutes later and again raised his rifle. People in the parking lot fired shots toward Thomas and then "all hell broke loose[.]" Id. at 229.
[¶5] Tilonda was hit by four bullets in the chest, her sister was shot in the mouth, and Thomas was shot in the buttocks. After being struck, Tilonda and her sister pushed Thomas back into the building. Tilonda and her sister crawled into the apartment where they lay bleeding on the floor until police arrived. Thomas, however, went back outside three more times in the next two to three minutes and fired his rifle into the parking lot and toward Building 7B-in "a direct line of sight" 233 feet from Building 5B-while people in the parking lot returned fire. Tr. Vol. 2 at 96. Thomas' younger brother was staying at the apartment that night; when the shooting began, he went into the bathroom, "the safest place to get out of the line of fire." Tr. Vol. 1 at 188. He saw Thomas come into the apartment with "some sort of like rifle," get "another clip," and go back outside. Id. at 187, 191. More gunshots followed.
[¶6] Several people in Eden Green called 9-1-1 during the shooting. Fort Wayne Police Department Officer Lucas Hayes was one of the officers who responded to the scene. When he arrived, he and other officers heard screaming coming from Building 5B. As Officer Hayes approached Building 5B, he saw "[m]ore than twenty (20), more than maybe thirty (30)" rifle shell casings on the sidewalk and in the entry area. Id. at 202. There was also a trail of blood leading from the door of Building 5B down the common hallway to the first door on the right, where a puddle of blood was seeping into the hallway from under the door. Thomas-agitated but unarmed-eventually opened the door and Officer Hayes saw an AR-15 rifle on the ground beside the pool of blood and two bleeding women on the living room floor. After a brief scuffle, Officer Joel Lengerich took Thomas into custody. Thomas told Officer Lengerich his mother had been shot so he "retrieved his gun and then went back out [to the parking lot] and started shooting back at whoever had shot at them." Id. at 219.
[¶7] Investigators recovered Thomas' AR-15 as well as an ammunition magazine and live ammunition located nearby and collected seventy-six .223 caliber cartridge casings from near the entrance door to Building 5B. All the .223 caliber casings sent to the Indiana State Police lab for testing came from Thomas' AR-15. See Tr. Vol. 2 at 114 (detective explaining he did not send all seventy-six .223 casings to the lab but "sent what was representative. I took casings from the hallway [and from] furthest north, furthest east, furthest west, furthest south" outside the exterior door). Investigators also collected fifty-eight spent 9mm and .45 caliber casings from various locations throughout the parking lot. At least five weapons fired the casings recovered from the scene.
[¶8] One of the 9-1-1 calls that night came from Candiace Lay's second-floor apartment in Building 7B. A man who identified himself as "Tony" said Lay had been shot in the head: "I was running, ducking down, and she came right behind me and fell on the floor." Ex. Supp. Vol. at 9 (recording at 1:22-1:28). When officers found Lay, she had a gunshot wound to the head and labored breathing. Lay later died from her injury. The bullet that killed Lay entered her head behind her right ear, "crossed the midline and went to the left." Tr. Vol. 2 at 53. Several bullets struck and entered Building 7B, three of which entered Lay's apartment through the window and the exterior wall. Investigators determined the bullets that entered Building 7B were fired from the AR-15 based on the size of the bullet holes and the velocity it would take for a bullet to "traverse an entire apartment, and then go out the opposite side of it." Id. at 112. The bullet that struck Lay in the head was recovered during her autopsy. It had the same class characteristics as bullets from Thomas' AR-15.
One of the investigating detectives testified:
A 223 bullet, when it leave[s] the barrel is traveling at a velocity of just over 3200 feet per second. A 9mm will leave the barrel at between 900 and 1300 feet per second. A 45, even lower velocity, 800 to 1100 feet per second.Id.
[¶9] The State charged Thomas with murder, alleging "while acting with intent to kill persons with whom he was arguing (whose identity is currently unknown), [he] discharge[d] a firearm and instead kill[ed] Candiace Lay[.]" Appellant's App. Vol. 2 at 18. The State also charged Thomas with two counts of criminal recklessness: as a Level 5 felony for creating a substantial risk of bodily injury to another person by "shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather" and as a Level 6 felony for performing an act that created a substantial risk of bodily injury to another while armed with a deadly weapon. Id. at 22. Finally, the State alleged Thomas used a firearm in the commission of a felony that resulted in death or serious bodily injury and sought an enhanced sentence.
The State also charged Thomas with reckless homicide. The jury found him guilty of this charge, but the trial court vacated the judgment of conviction on this count at sentencing.
[¶10] At Thomas' jury trial, the trial court instructed the jury on defense of person or property and on the doctrine of transferred intent. The jury found Thomas guilty of all charges and found he had used a firearm in committing the offenses. Before sentencing, Thomas wrote the trial court a letter expressing his remorse. He reiterated his remorse in a statement he made at his sentencing hearing. The trial court found Thomas' remorse was a mitigator, and found his prior juvenile involvements, failed prior attempts at rehabilitation, the nature and circumstances of the crime including the victim impact, and his escalating criminal behavior were aggravators. The trial court sentenced Thomas to consecutive terms of fifty-five years for murder, three years for Level 5 felony criminal recklessness, one year for Level 6 felony criminal recklessness, and an additional fixed term of twenty years for knowingly or intentionally using a firearm in the commission of murder.
Sufficient Evidence Supports Thomas' Convictions Standard of Review
[¶11] A sufficiency-of-the-evidence claim warrants a "deferential standard of appellate review, in which we 'neither reweigh the evidence nor judge witness credibility[.]'" Owen v. State, 210 N.E.3d 256, 264 (Ind. 2023) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is "not necessary that the evidence 'overcome every reasonable hypothesis of innocence.'" Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).
The State Disproved Thomas' Self-Defense Claim
[¶12] "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 v. State, 770 N.E.2d 799, 801 (Ind. 2002).
[¶13] A valid claim of self-defense is legal justification for an otherwise criminal act. Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011). Indiana Code Section 3541-3-2 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. No person . . . in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.I.C. § 35-41-3-2(c) (2019). To prevail on a claim of self-defense, a defendant must show: (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 great bodily harm to himself or a third person. Coleman, 946 N.E.2d at 1165.
[¶14] Once a defendant claims self-defense, the State bears the burden of disproving at least one of these elements beyond a reasonable doubt. Larkin v. State, 173 N.E.3d 662, 670 (Ind. 2021). The State may meet this burden by rebutting the defense directly, by affirmatively showing the defendant did not act in selfdefense, or by simply relying on the sufficiency of its evidence in chief. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). Whether the State has met its burden is a question of fact for the fact-finder. Id. "We will reverse a conviction only if no reasonable person could say the State overcame the self-defense claim beyond a reasonable doubt." Larkin, 173 N.E.3d at 670.
[¶15] Thomas claimed he was acting to protect his mother and himself when he shot into the parking lot repeatedly. But self-defense is generally unavailable to a defendant who provokes, instigates, or participates willingly in the violence. See Driver v. State, 760 N.E.2d 611, 612 (Ind. 2002); see also I.C. § 35-41-3-2(g)(3). And the force used must be proportionate to the requirements of the situation confronting the defendant. Weedman v. State, 21 N.E.3d 873, 892 (Ind.Ct.App. 2014), trans. denied. "Where a person has used more force than necessary to repel an attack the right to self-defense is extinguished, and the ultimate result is that the victim then becomes the perpetrator." Id. (quoting Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind.Ct.App. 1999)).
[¶16] Here, the State met its burden of disproving Thomas' self-defense claim by presenting evidence from which the jury could find Thomas did not act without fault. The jury could have found Thomas provoked the incident when he raised his rifle and shot into the air before going into Building 5B and then came back outside and raised his firearm, escalating a verbal argument into a firefight. The jury could have found Thomas willingly participated in the violence when, after he, his mother, and his aunt were shot and all fled into the building, he came back outside not just once, but three times despite initially removing himself from the situation. And the jury could have found Thomas' response-firing over seventy rounds and pausing to reload-was not proportionate to the urgency of the situation. The record contains evidence to contradict Thomas' self-defense claim. Assessing and weighing that evidence was the jury's prerogative, and it could have found the State disproved Thomas' claim beyond a reasonable doubt.
Sufficient Evidence Supports Thomas' Murder Conviction
[¶17] The State charged Thomas with murder for killing Lay while intending to kill unknown persons with whom he was arguing. Under the doctrine of transferred intent, a defendant's intent to kill one person is transferred when, by mistake or inadvertence, the defendant kills a third person. Blanche v. State, 690 N.E.2d 709, 712 (Ind. 1998). The defendant may be found guilty of the murder of the person who was killed, even though the defendant intended to kill another. Id.
Thomas argues the "merger of self-defense and transferred intent has long been recognized," citing an out-of-state case for the proposition that if the killing of the party intended to be hit would be justified by selfdefense, then the killing of a bystander would also be justified. Appellant'sBr. at 22-23 (citing Pinder v. State, 8 So. 837 (Fla. 1891)). Because we have already determined the State rebutted Thomas' self-defense claim, we need not examine the interplay of self-defense and transferred intent in this case. Cf. Hughes v. State, 153 N.E.3d 354, 361-62 (Ind.Ct.App. 2020) (affirming defendant's conviction of criminal recklessness for shooting into a crowded building because "[n]otwithstanding the possible application of the doctrine of transferred intent to circumstances of self-defense," the State presented sufficient evidence to negate defendant's self-defense claim), trans. denied.
[¶18] Thomas argues the State presented no evidence of his intent to murder anyone, so there could be no transferred intent to murder Lay. He also argues the State failed to prove the bullet that killed Lay was not the warning shot he fired into the air.
Thomas uses the phrase "specific intent" several times in his brief. See, e.g., Appellant's Br. at 16 (arguing the State "would have to prove beyond a reasonable doubt that Thomas had the specific intent to kill persons with whom Thomas was arguing") (emphasis added). To the extent this is not just an inadvertent turn of phrase but an argument that "specific intent" to kill is a required element of murder, Thomas is incorrect. Specific intent is an element of attempted murder, but one may be guilty of murder without having a specific intent to kill the victim. See Echols v. State, 722 N.E.2d 805, 808 (Ind. 2000).
[¶19] A person who knowingly or intentionally kills another commits murder. I.C. § 35-42-1-1(1). The State charged Thomas with acting with only intent to kill. "A person engages in conduct 'intentionally' if, when he engages in the conduct, it is his conscious objective to do so." I.C. § 35-41-2-2(a) (1977). Intent is a mental state and may be inferred from "the deliberate use of a deadly weapon in a manner likely to cause death or serious injury." Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). Firing a gun in the direction of an individual is "substantial evidence from which a jury may infer intent to kill." Id. Intent may also be inferred from the nature of the attack and the circumstances of the crime. Nunn v. State, 601 N.E.2d 334, 339 (Ind. 1992).
[¶20] Thomas claims there is no evidence he was arguing with, took aim at, or directed his shots toward any particular person. But our Supreme Court has "repeatedly upheld convictions for murder and attempted murder where the State sought to carry its burden of proof on the issue of intent by producing evidence that the defendant fired a gun in a crowd or at a group of people." Labelle v. State, 550 N.E.2d 752, 754-55 (Ind. 1990); see also Blackburn v. State, 291 N.E.2d 686, 694 (Ind. 1973) ("A person is presumed to intend the natural and probable consequences of his acts and the intent to commit murder may be inferred from the act of shooting into a crowd."). Here, the State presented evidence that Thomas fired his weapon into the parking lot where several people were gathered and toward Building 7B where Lay's apartment was. Thomas fired over seventy rounds, went inside twice, and reloaded at least once. A jury could have reasonably inferred from the sheer volume of shots Thomas fired he intended to kill one or more persons in the parking lot and hit Lay in the process.
Thomas made a motion for directed verdict as to the murder count on this basis. See Tr. Vol. 2 at 184-86. The trial court denied the motion, finding there was "at least a scintilla of [evidence] on count one." Id. at 187. On appeal, "Thomas contends that the trial court erred in denying the defense's motion regarding Count I in that the evidence presented in combination with the doctrine of transferred intent does not support Thomas' conviction for Murder[.]" Appellant's Br. at 20. Because the standard of review on appeal from an order denying a motion for directed verdict is essentially the same as for a challenge to the sufficiency of the evidence, we do not address this separately. Russell v. State, 217 N.E.3d 544, 549 (Ind.Ct.App. 2023), trans. denied; see also Patterson v. State, 532 N.E.2d 604, 607 (Ind. 1988) ("If the evidence is sufficient to sustain a conviction on appeal, then the denial of a motion for directed verdict cannot be error[.]").
[¶21] Thomas also concedes it is "likely" he fired the bullet that killed Lay but argues if it was the warning shot that hit her, then there was no intent to kill. Appellant's Br. at 17. He claims the State did not meet its burden of proving intent because it did not prove "which of the 76 rounds hit and killed Lay." Id. The State may not have specifically proved which of the seventy-six rounds killed Lay, but it did present evidence from which it could be inferred it was not the warning shot that hit her. Dr. Scott Wagner performed the autopsy on Lay and testified she suffered a gunshot wound "going from the right side of her head to the left[.]" Tr. Vol. 2 at 55. From this testimony, the jury could have reasonably inferred it was not the unaimed warning shot that killed Lay because a shot fired into the air would not make a horizontal wound track.
[¶22] Thomas' argument is essentially a request we reweigh the evidence, and we cannot grant that request. See Owen, 210 N.E.3d at 264. Although a shooter may not know his ultimate victim, if he intentionally shoots in the direction of a building where people live, that fact will support a conviction for murder. The evidence and reasonable inferences from the evidence support the jury's verdict.
Thomas' Sentence Does Not Warrant Revision
[¶23] Thomas asks us to revise his seventy-nine-year sentence. The Indiana Constitution authorizes this Court to review and revise a trial court's sentencing decision as provided by rule. Ind. Const. art. 7, § 6. Indiana Appellate Rule 7(B) provides we 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." The principal role of appellate review is to leaven the outliers, not to achieve a perceived correct sentence in each case. Conley v. State, 183 N.E.3d 276, 288 (Ind. 2022). Therefore, "we reserve our 7(B) authority for exceptional cases." Faith v. State, 131 N.E.3d 158, 160 (Ind. 2019) (per curiam).
Thomas received the advisory sentence for each of his convictions and received the maximum additional sentence allowed under the firearm enhancement statute. See I.C. § 35-50-2-3(a) (2015) (advisory sentence for murder is fifty-five years); I.C. § 35-50-2-6(b) (2014) (advisory sentence for a Level 5 felony is three years); I.C. § 35-50-2-7(b) (2019) (advisory sentence for a Level 6 felony is one year); I.C. § 35-50-2-11(g) (providing for an additional sentence of five to twenty years for use of a firearm in commission of a listed offense).
[¶24] "[S]entencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). "Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). The two prongs of 7(B) review are "separate inquires to ultimately be balanced in determining whether a sentence is inappropriate." Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (quoting Conner v. State, 58 N.E.3d 215, 218 (Ind.Ct.App. 2016)). "[T]o the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief." Id. at 127.
[¶25] The question "is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate." Helsley v. State, 43 N.E.3d 225, 228 (Ind. 2015) (quoting King v. State, 894 N.E.2d 265, 268 (Ind.Ct.App. 2008)) (emphasis omitted). Whether we regard a sentence as inappropriate "turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Cardwell, 895 N.E.2d at 1224. The defendant bears the burden of persuading us a revised sentence is warranted. See Hall, 177 N.E.3d at 1197.
[¶26] Thomas argues the nature of his offenses weighs in favor of revising his sentence because he was acting in response to his family being shot and claims the "death of Candiace Lay was senseless, but it was also unintentional." Appellant's Br. at 27. There is no question Thomas' mother and aunt were injured during this incident, but the jury rejected Thomas' claim he was acting in defense of himself or others when he came out of the building three times after they were shot and sprayed seventy-six bullets into the parking lot and apartment building beyond. Thomas' "warning shot" sparked a dangerous firefight in a populated area. Thomas' conduct resulted in Lay's death and exposed both those engaged in the firefight and those simply living in the complex to significant potential harm. The nature of Thomas' offenses does not warrant revision.
[¶27] Turning to Thomas' character, Thomas directs us to his young age, lack of juvenile adjudications or adult convictions, and his sincere expressions of remorse as supporting revision. The trial court accepted Thomas' remorse as genuine, and we defer to that finding. We also acknowledge Thomas is relatively young and has a minimal juvenile record. But Thomas has not directed us to any "substantial virtuous traits or persistent examples of good character" that would warrant revising his sentence below the advisory sentences ordered by the trial court. Stephenson, 29 N.E.3d at 122. In sum, Thomas has not carried his burden of persuading us his sentence is inappropriate.
Thomas had informal adjustments as a juvenile for acts that would have been criminal mischief and theft. He was offered rehabilitation services such as counseling and educational programs and was satisfactorily discharged in both cases.
Conclusion
[¶28] Thomas' convictions are supported by sufficient evidence and his sentence is not inappropriate.
[¶29] Affirmed.
May, J., and Vaidik, J., concur.