Shepherd v. State
| Decision Date | 03 July 2012 |
| Docket Number | No. 49A05–1111–CR–600.,49A05–1111–CR–600. |
| Parties | Darryl SHEPHERD, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from the Marion Superior Court; The Honorable Grant W. Hawkins, Judge; Cause No. 49G05–0911–MR–97663.
Valerie K. Boots, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Darryl Shepherd appeals his conviction for possession of a firearm by a serious violent felon, a Class B felony, and his sentence. Shepherd raises three issues for our review:
1. Whether the State presented sufficient evidence to disprove his defense of self-defense;
2. Whether the trial court abused its discretion when it sentenced him; and
3. Whether his sentence is inappropriate in light of the nature of the offense and his character.
We affirm.
In 1991, Shepherd was convicted of two counts of Class C felony battery. In 1993, he was convicted of dealing in cocaine, as a Class B felony. Under Indiana law, each of these convictions made Shepherd a serious violent felon, and he was prohibited from carrying a firearm. Ind.Code § 35–47–4–5.
In 2009, Shepherd owned and worked at an automobile body shop in Indianapolis. He rented space at the shop to Gary Couch. On November 25, Shepherd approached Couch about Couch's overdue rent payment. Couch responded aggressively, uttering racial slurs to Shepherd and threatening to kill him.
In response to Couch's aggression, Shepherd removed a .38 caliber revolver from his shirt and shot Couch in the leg. This prompted witnesses to call 9–1–1. Shepherd then attempted to leave in his car, but Couch kicked the rear door of Shepherd's car, which inspired Shepherd to turn his car around and drive it into Couch, knocking him down. Couch got up and tried to access Shepherd through the driver's door while Couch's son, who was nearby, kicked in the rear driver's side window. Shepherd then shot Couch three times, shot Couch's son once, and left the scene. Couch died before emergency personnel arrived.
Shepherd turned himself in to authorities the next day. After waiving his rights, Shepherd thrice admitted that the firearm he had used was his. On November 30, the State charged Shepherd with murder, a felony; battery, as a Class C felony; and unlawful possession of a firearm by a serious violent felon, a Class B felony. The State also alleged Shepherd to be an habitual offender.
At the ensuing bench trial, after the State rested Shepherd moved for involuntary dismissal of each of the State's charges on the grounds that the evidence established his defense of self-defense. The trial court granted Shepherd's motion with respect to the murder and battery allegations but denied the motion with respect to the unlawful possession of a firearm charge. In particular, the court denied Shepherd's motion on that charge because Shepherd “had the gun on his person before he knew he'd need it, and that was inside the garage before ... a threat allowing the use of deadly force had been made.” Transcript at 652.
Shepherd did not present any evidence on his behalf following the court's ruling on his motion for involuntary dismissal. The court then found Shepherd guilty of unlawful possession of a firearm by a serious violent felon. The court further found that Shepherd was an habitual offender.
The court held Shepherd's sentencing hearing on October 26, 2011. After hearing the parties' arguments, the court stated as follows:
The defendant's lifestyle changed since the 90[s], the fact that he surrendered and cooperated with authorities, his poor health and the fact that he was in his own mind acting in self[-]defense through a lot of this are significant mitigating factors. The fact that he was on probation, he has two prior probation violations, one prior felony conviction are aggravating factors. But the biggest aggravating factor is as a result of his violation of this law someone died. If he hadn't had the gun, Mr. Couch doesn't die. If he would have called 9–1–1 instead of pulling a gun, Mr. Couch doesn't die. I can understand that there are sentiments in some corners that if you have a problem you carry a gun. Mr. Shepherd wasn't allowed to do that. He had to call 9–1–1 instead. The fact that someone died is the overriding aggravating factor.
Id. at 702–03. The court then concluded that the aggravators outweighed the mitigators and sentenced Shepherd to fifteen years on the Class B felony conviction. The court enhanced that sentence by ten years based on the habitual offender finding. This appeal ensued.
Shepherd first contends that the State failed to disprove his defense of self-defense with respect to the firearm charge. As our supreme court has explained:
A valid claim of defense of oneself or another person is legal justification for an otherwise criminal act. Ind.Code § 35–41–3–2(a); Wallace v. State, 725 N.E.2d 837, 840 (Ind.2000). In order to prevail on such a claim, 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. McEwen v. State, 695 N.E.2d 79, 90 (Ind.1998). When a claim of self-defense is raised and finds support in the evidence, the State has the burden of negating at least one of the necessary elements. Id. If a defendant is convicted despite his claim of self-defense, this Court will reverse only if no reasonable person could say that self-defense was negated by the State beyond a reasonable doubt. Taylor v. State, 710 N.E.2d 921, 924 (Ind.1999).... 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. Sanders v. State, 704 N.E.2d 119, 123 (Ind.1999). We neither reweigh the evidence nor judge the credibility of witnesses. Id. If there is sufficient evidence of probative value to support the conclusion of the trier of fact, then the verdict will not be disturbed. Id.
Wilson v. State, 770 N.E.2d 799, 800–01 (Ind.2002).
We have discussed how the defense of self-defense applies to a charge of unlawful possession of a firearm by a serious violent felon as follows:
[W]e do not believe that the Indiana Legislature, in prohibiting the possession of a firearm by a serious violent felon, intended to preclude the assertion of self-defense....
Other courts ... have recognized self-defense as a viable defense [on similar charges], provided that the particular circumstances warranted such defense. In People v. King, 22 Cal.3d 12, 148 Cal.Rptr. 409, 414, 582 P.2d 1000, 1005 (1978), for example, the court held that the legislature, in prohibiting the possession of a concealable firearm by a person previously convicted of a felony, did not intend to preclude the assertion of self-defense and closely related defenses to a charge of violating the statute. There, the defendant had been attending a party at a friend's house when the house came under attack from some uninvited and intoxicated individuals. Id. at 411, 148 Cal.Rptr. 409, 582 P.2d at 1002. During the melee, the defendant was given a small pistol from another guest to use in protecting the house and the occupants. He fired the gun over the heads of the attackers, slightly wounding one and frightening away the remainder. At trial, the judge refused to give an instruction that self-defense would be a defense to the weapon-possession charge and the defendant appealed. On review, the King Court determined that the prohibition of a felon possessing a firearm was not intended to affect a felon's right to use a concealable firearm in self-defense, but was intended only to prohibit members of the affected classes from arming themselves with concealable firearms or having such weapons in their custody or control in circumstances other than those in which the right to use deadly force in self-defense exists or reasonably appears to exist[ ]. Id. at 416, 148 Cal.Rptr. 409, 582 P.2d at 1007. Thus, continued the court, when a felon, like the defendant in question, is in imminent peril of great bodily harm or reasonably believes himself or others to be in such danger, and without preconceived design on his part a firearm is made available to him, his temporary possession of that weapon for a period no longer than that in which the necessity or apparent necessity to use it in self-defense continued would not violate the statutory prohibition against possession of a concealed firearm by a felon. Id.
* * *
Here ..., there is a legitimate question regarding Harmon's claim of self-defense. Harmon's proffered evidence reveals, for example, that he broke into the locked gun case and obtained Theresa's handgun only after he saw John retrieve a shotgun from John's truck. These events occurred in the middle of a heated altercation between Harmon and Theresa, on the one hand, and John, Audrey, and Palm, on the other. According to Harmon, when he first took possession of the firearm, he was outnumbered, concerned about John's intention with the shotgun, and believed himself and Theresa to be in imminent peril of great bodily harm. Further, Harmon's possession of the firearm was temporary and lasted only for the period of time necessary to abate the danger. Under these circumstances, we conclude ... that Indiana's prohibition against a felon possessing a firearm was not intended to affect his or her right to use a firearm in self-defense, but was intended only to prohibit members of the affected classes from arming themselves with firearms or having such weapons in their custody or control in circumstances other than those in...
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