Moss v. State
| Decision Date | 28 April 2023 |
| Docket Number | 22A-CR-2002 |
| Parties | Courtney M. Moss, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Lake Superior Court Trial Court Cause No 45G01-2008-MR-33 The Honorable Salvador Vasquez, Judge
ATTORNEY FOR APPELLANT R. Brian Woodward Crown Point, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General J.T. Whitehead Deputy Attorney General Sierra A Murray Deputy Attorney General Indianapolis, Indiana
[¶1] Following a jury trial, Courtney Moss (Defendant) was convicted of murdering Rayvon Harris (Victim) at a gas station in Gary, Indiana. Security cameras from various locations in the area caught much of the events leading up to and including the shooting, providing video but no sound.
[¶2] The incident directly involved three other men - Myles Thomas, Willie Jones, and Roy Akins - who were hanging out with Defendant nearby in the hours leading up to the shooting. Defendant, Thomas, and Akins were each armed with a firearm. Victim was not.
[¶3] The shooting occurred as the result of an altercation between Thomas and Victim that began outside and then moved inside the gas station. The verbal encounter inside escalated when Jones stepped in and punched Victim. As Jones and Thomas began to attack Victim, who had backed into a corner, Defendant stood nearby armed and ready. Thomas's handgun fell out of his waistband during the melee, and as he and Victim struggled over it, the gun discharged, and a bullet struck Jones in the leg. Defendant then fired three shots at Victim. Akins ran inside once the shooting began and fired at least two shots from across the store. Defendant fired his fourth and final shot directly at Victim, who was slumped in a corner with his hands up near his head.
[¶4] In a matter of seconds, Victim had been shot seven times, by at least two different firearms. Victim suffered four fatal gunshot wounds to his torso and three non-fatal gunshot wounds to his right leg. Victim died at the scene shortly after the men fled.
[¶5] On appeal, Defendant presents the following restated issues for appeal:
[¶6] We affirm.[1]
[¶7] In the early morning hours of August 22, 2020, Defendant was with Thomas, Jones, and Akins on the premises of Bugsy's Bar in Gary. Jones and Akins hung out in Defendant's car, while Thomas and Defendant spent time inside the bar, as well as in the parking lot. Defendant was armed at all relevant times with a Glock 43 9 mm handgun (the Glock). Thomas had a black handgun that he carried in his waistband, and Akins had a "big rifle." Transcript Vol. 5 at 24.
[¶8] Around 3:00 a.m., the men were in the parking lot when their attention appeared to be drawn toward 45th Avenue. Victim was on the other side of the street and began walking toward the nearby intersection at Broadway. Thomas crossed 45th and followed Victim, from a distance, through the intersection and toward the gas station. The two exchanged words. As they each made it across Broadway, Defendant then began to walk through the middle of the intersection.
[¶9] The verbal exchange between Thomas and Victim continued briefly outside of the gas station until Thomas punched Victim, who then pushed Thomas away and hurried inside. Victim stood away from the door and near the checkout counter, where there were female patrons. For about a minute, Thomas stood at the open door and spoke in an animated manner as the female patrons appeared to attempt to calm Thomas. Victim initially stood by silently but then responded verbally, which caused Thomas to fully enter the store as Defendant continued holding the door.
[¶10] In the meantime, Jones had driven Defendant's car over to the gas station, and Akins came in another vehicle. Jones went inside to buy a drink and, while in the back of the store, overheard the disagreement, which escalated with Victim exclaiming, Transcript Vol. 2 at 175. As Victim, who was unarmed, began to take a fighting stance, Jones ran in from the side and struck Victim, catching him off guard. Thomas, Jones, and Defendant then all approached Victim, who backed away into a corner. Defendant had his gun drawn as Thomas punched Victim multiple times and Jones kicked him.
[¶11] During the attack, Thomas's handgun fell from his waistband, and he and Victim struggled for control as the handgun discharged, striking Jones once in the leg. Defendant then began firing the Glock toward the left side of Victim's body. Victim fell to the ground, and Jones and Thomas, who had regained control of his gun, fled. Victim sat slumped against the side of a beverage cooler, between a shelf and a stack of boxes of soda, with his hands raised to his head, and Defendant shot him one more time. Akins had also rushed in with his semi-automatic rifle by this point and started shooting from a distance. Akins fired at least two shots toward Victim's right leg.
[¶12] From start to finish, the physical portion of the confrontation inside the store lasted about thirty seconds. Victim was still alive when his four assailants fled, but he was lifeless within minutes. Victim suffered seven gunshot wounds. Three shots entered from his left side and were fatal,[2] striking his left lung, heart, and liver. There were exit wounds associated with each of these fatal shots. A fourth shot, also fatal, entered Victim's left chest/abdomen area and exited his lower posterior left side.[3] The three other gunshot wounds were to his right leg and were not fatal. One entered the front of his right thigh (with no exit wound) and the other two grazed the back of his right thigh.
[¶13] Immediately after the shooting, Defendant drove away with Jones, while the others left in another vehicle. Defendant took Jones to a hospital in Hobart for treatment of the gunshot wound to his leg. On the way to the hospital, Defendant told Jones, "Damn I f**ked up." Transcript Vol. 3 at 181. After checking Jones into the emergency room, Defendant drove away and was stopped by police shortly thereafter. At the time of his stop, Defendant was wearing the same clothing as during the shooting and had a hospital visitor tag on his shirt. The Glock was recovered under the driver's seat of his vehicle.
[¶14] Relevant here, investigators recovered six shell casings and two spent bullets from the scene at the gas station. A firearms expert later determined that four of the spent casings had been fired from the Glock. The two other casings were from a "223 Remington . . . rifle round." Transcript Vol. 4 at 110. One of the spent bullets was recovered from the beverage cooler and the other was recovered inside a soda can within the boxes of soda that were next to Victim's body (to his left). Both spent bullets were 9 mm rounds but only the one found in the soda was positively identified as having been fired by the Glock.
[¶15] At his jury trial for murder, Defendant testified and claimed that he acted in self-defense when he shot Victim multiple times after Jones was shot by Thomas's gun. Defendant acknowledged that he shot Victim, who was on the ground, one last time before walking away with the others because "[Victim] was still moving." Transcript Vol. 5 at 13. Defendant claimed that this last shot was to Victim's leg.
[¶16] Jones testified for the State and indicated that Victim was unarmed, appeared scared, and was trying to defend himself as he was backed into a corner by Thomas, Jones, and Defendant. Additionally, Jones testified that although Thomas and Victim struggled over Thomas's gun after it was dropped, Victim never obtained exclusive control over it.
[¶17] The jury was instructed on both murder and voluntary manslaughter, as well as self-defense. The trial court rejected Defendant's request for an instruction on aggravated battery. Ultimately, the jury found Defendant guilty of murder. He then waived trial by jury on the firearm enhancement, and the trial court entered judgment on the enhancement. Defendant was sentenced to fifty-eight years for murder, enhanced by seven years, for an aggregate sentence of sixty-five years.
[¶18] Defendant now appeals. Additional evidence will be provided below as needed.
[¶19] Defendant argues that the trial court erred by denying his request for a final jury instruction on aggravated battery. We review a trial court's decision to refuse a jury instruction for an abuse of discretion. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). In doing so, we consider: "(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given." Id. Only the second of these is at issue in this case.
[¶20] A criminal defendant is entitled to have a jury instruction on any theory or defense which has some foundation in the evidence. Id. This is true "even if the evidence is weak and inconsistent so long as the evidence presented at trial has some...
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