William Moore v. State of Indiana ( 2019 )

FILED
Dec 12 2019, 9:15 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Curtis T. Hill, Jr.
Batesville, Indiana Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
William Moore, December 12, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-884
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Barbara Cook Crawford, Judge
The Honorable
Amy Barbar, Magistrate
Trial Court Cause No.
49G01-1806-F3-19086
Vaidik, Chief Judge.
Court of Appeals of Indiana | Opinion 19A-CR-884 | December 12, 2019 Page 1 of 9
Case Summary
[1] William Moore appeals his convictions for criminal confinement as a Level 3
felony and intimidation as a Level 5 felony—both of which were enhanced
because he committed them with a “deadly weapon.” William argues that his
pellet gun is not a “deadly weapon” and that even if it is, it cannot be used to
enhance both of his convictions. We affirm.
Facts and Procedural History
[2] Traci Capps has two adult sons, William and Bradley Moore. On the afternoon
of June 6, 2018, Traci, Bradley, and Traci’s husband, Douglas Capps, went to
William’s house so that Traci could drop off the laundry she did for him and
pick up some personal items that belonged to his girlfriend, Alana. William
and Alana lived together, but Alana had been staying with her mother ever
since she and William got into an argument a few days before. When Traci
knocked on William’s door, there was no answer. She then walked into the
house and found William sleeping on the couch. Traci woke up William to tell
him that she brought over his laundry and that she needed to get some of
Alana’s personal items. William told his mother that she could not take any of
Alana’s items and to get the “f*** out” of his house. Tr. p. 13. Traci responded
that she wasn’t leaving until she got Alana’s belongings.
[3] As Traci walked into the kitchen, William was “literally up against [her] . . .
almost like a chest belly type push.” Id. Using his body, William pushed his
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mother into the deep freezer so that her back was against the freezer and his
body was blocking the door. William had a gun in his hand at the time. Id. at
15. Then, William “pull[ed] the gun and put[] it to” Traci’s temple, telling her
that he was going to “f***ing kill [her]” and “shoot [her].” Id. at 15-16. While
William had the gun to his mother’s head, she was scared that she was going to
“die” and “get hurt.” Id. at 16. Traci told William, “[I]f you are going to do it,
just do it. Just shoot me, just kill me. Just get it over with.” Id.
[4] Meanwhile, Bradley and Douglas were outside waiting when they heard the
commotion inside William’s house. See id. at 47 (Douglas explaining that
about five or ten minutes after Traci went inside William’s house, they heard a
commotion inside). Bradley and Douglas rushed inside, where they saw that
William had his mother pushed against the deep freezer. Bradley saw what he
believed to be a gun in William’s hand and drew his own gun. When William
pointed his gun at Traci’s head, Bradley pointed his gun at William. At this
point, Douglas, who recognized William’s gun and knew that it was a pellet
gun, yelled, “Everybody calm down, it’s just a pellet gun.” Id. at 50. William
then “slammed” his gun on the ground, which made a cracking noise like it
broke. Id. at 36. Traci, Bradley, and Douglas ran out of the house and called
911. A few minutes later, William came out of the house and left.
[5] When police arrived, an officer went inside the house and saw what he believed
to be a gun on the kitchen floor by the deep freezer. Upon closer inspection, the
officer saw that the gun was in two pieces and that it was actually a “BB gun.”
Id. at 58. An evidence technician was called to photograph the scene and
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collect evidence. The gun, which turned out to be a “CO2 Power Pellet Pistol,”
id. at 36, contained the following advisement: “WARNING: Not a toy.
Misuse or careless use may cause serious injury or death,” Ex. 7. According to
the evidence technician, the gun was not loaded. He didn’t test it to see if it was
operable.
[6] Thereafter, the State charged William with, among other things, criminal
confinement as a Level 3 felony, enhanced from a Level 6 felony because he
committed the offense while “armed with a deadly weapon, to wit: air gun
and/or BB gun,” and intimidation as a Level 5 felony, enhanced from a Class
A misdemeanor because while committing the offense he “drew or used a
deadly weapon, to wit: air gun and/or BB gun.”1 Appellant’s App. Vol. II pp.
18-19; Ind. Code § 35-42-3-3(b)(3)(A); Ind. Code § 35-45-2-1(b)(2)(A).
Following a bench trial, the trial court found William guilty of both counts.
The court sentenced him to nine years for criminal confinement and three years
for intimidation, to be served concurrently.
[7] William now appeals.
1
The State also charged William with domestic battery and battery (both relating to Bradley). The trial court
found him guilty of domestic battery. Because William does not challenge this conviction on appeal, we do
not address it or the facts underlying it.
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Discussion and Decision
I. Deadly Weapon
[8] William first contends that his pellet gun is not a “deadly weapon” as defined
by statute and therefore the evidence is insufficient to support his convictions
for criminal confinement as a Level 3 felony and intimidation as a Level 5
felony—both of which were enhanced because he committed them with a
“deadly weapon.” Appellant’s Br. p. 8. Accordingly, William asks us to
reduce his criminal-confinement conviction to a Level 6 felony and his
intimidation conviction to a Class A misdemeanor.
[9] Our standard of review for sufficiency claims is well settled. We do not reweigh
evidence or assess the credibility of witnesses. Gray v. State, 903 N.E.2d 940,
943 (Ind. 2009). Rather, we look to the evidence and reasonable inferences
drawn therefrom that support the judgment and will affirm the conviction if
there is probative evidence from which a reasonable factfinder could have found
the defendant guilty beyond a reasonable doubt. Id.[10] A “deadly weapon” is defined, in part, as:
(1) A loaded or unloaded firearm.
(2) A destructive device, weapon, device, taser (as defined in IC
35-47-8-3) or electronic stun weapon (as defined in IC 35-47-8-1),
equipment, chemical substance, or other material that in the
manner it:
(A) is used;
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(B) could ordinarily be used; or
(C) is intended to be used;
is readily capable of causing serious bodily injury.
Ind. Code § 35-31.5-2-86. “Serious bodily injury,” in turn, is defined as “bodily
injury that creates a substantial risk of death or that causes: (1) serious
permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent
or protracted loss or impairment of the function of a bodily member or organ;
or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292.
[11] Although not a “firearm,” a pellet or BB gun can be considered a “deadly
weapon” if, in the manner it is used, could ordinarily be used, or is intended to
be used, it is readily capable of causing serious bodily injury. I.C. § 35-31.5-2-
86; Davis v. State, 835 N.E.2d 1102, 1112 (Ind. Ct. App. 2005), trans. denied.
Whether a weapon is a “deadly weapon” is determined from a description of
the weapon, the manner of its use, and the circumstances of the case. Davis,
835 N.E.2d at 1112. “The fact finder may look to whether the weapon had the
actual ability to inflict serious injury under the fact situation and whether the
defendant had the apparent ability to injure the victim seriously through use of
the object during the crime.” Id. (quotation omitted).
[12] William acknowledges that pellet and BB guns can be considered deadly
weapons; however, he argues that his pellet gun is not a “deadly weapon”
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because it was unloaded and “likely inoperable.”2 Appellant’s Br. p. 9. As the
State points out, this Court has already held that a disabled pellet gun can be a
“deadly weapon.” In Whitfield v. State, 699 N.E.2d 666 (Ind. Ct. App. 1998),
trans. denied, we held that a disabled pellet gun was a “deadly weapon” because
“pellet guns are virtually indistinguishable from the real caliber guns that they
are modeled after” and the victim “was so frightened that he could hardly
speak.” Id. at 671.
[13] The same can be said here. William put his pellet gun to his mother’s temple
and told her that he was going to “f***ing kill [her]” and “shoot [her].” Traci
thought that she was going to die and told her son, “Just get it over with.” In
addition, Traci, Bradley, and the police officer initially believed that William’s
pellet gun was a real gun, and photos of the gun were admitted into evidence at
trial. See Exs. 3-8. Accordingly, we find that there is substantial evidence of
probative value to support the factfinder’s determination that William’s pellet
gun is a “deadly weapon.”
II. Double Jeopardy
[14] William next contends that even if his pellet gun is a “deadly weapon,” his
criminal-confinement and intimidation convictions violate Indiana’s double-
jeopardy principles because they were both enhanced “based on the same
2
It’s unclear if William’s argument is that the pellet gun was inoperable because it was unloaded or because
it was in two pieces. If the latter, we note that the record shows that the gun was in one piece until William
“slammed” it on the ground.
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possession [of] a single unloaded pellet gun.” Appellant’s Br. p. 13 (emphasis
added). William does not argue that his separate convictions for criminal
confinement and intimidation cannot stand; rather, he asks us to remove the
“deadly weapon” enhancement from the lesser offense.
[15] In support of his argument, William cites the Indiana Supreme Court’s recent
decision in Springfield v. State, 124 N.E.3d 610 (Ind. 2019), reh’g denied. In that
case, the defendant was convicted of Level 4 felony possession of cocaine and
Level 5 felony possession of a narcotic drug, both of which were enhanced
because the defendant committed the offenses while in “possession” of a
firearm. Id. at 612. The defendant argued that the enhancements to his
convictions violated Indiana double-jeopardy principles because they were
based on the same evidence—his possession of a single firearm. Our Supreme
Court held as follows:
Although the use of the same weapon during the commission of
two or more distinct offenses may be used to enhance the level of
each offense without offending double jeopardy protections,
enhancing the level of two separate offenses for the
continuous possession of a firearm would violate these
principles. The appropriate remedy to address such violations is
to reduce one of the offending convictions to a lesser included
offense, if doing so will eliminate the violation.
Id. (citations omitted).
[16] Here, William was convicted of criminal confinement as a Level 3 felony
because he committed the offense while armed with a deadly weapon and
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intimidation as a Level 5 felony because while committing the offense he drew
or used a deadly weapon. Indeed, the evidence shows that William pushed
Traci against a deep freezer while he had a gun in his hand and then put the
gun to her head, threatening to kill her. Unlike Springfield, William’s
convictions for these distinct offenses are based on his use—as opposed to his
possession—of the gun. Accordingly, there is no double-jeopardy violation.
See Leggs v. State, 966 N.E.2d 204, 209 (Ind. Ct. App. 2012) (holding that the
defendant “was not subjected to double jeopardy when he was convicted of
multiple crimes enhanced by the use of a knife”). We therefore affirm
William’s convictions.
[17] Affirmed.
Riley, J., and Bradford, J., concur.
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