Leonard Bond v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
May 22 2015, 5:35 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Michael R. Fisher Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leonard Bond, May 22, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1412-CR-554
v. Appeal from the Marion Superior
Court.
The Honorable Marc Rothenberg,
State of Indiana, Judge.
Appellee-Plaintiff Cause No. 49G02-1304-MR-25924
Baker, Judge.
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[1] Leonard Bond appeals his conviction and sentence for Murder,1 a felony. He
argues that the State failed to present sufficient evidence to rebut his claim of
self-defense and that his sentence is inappropriate in light of the nature of the
offense and his character. Finding no error, we affirm.
Facts
[2] At approximately 5:00 am on April 20, 2013, Bond and his girlfriend, Louisa
Tranbarger, went to a Denny’s restaurant in Marion County. Bond had a gun
visibly protruding from his right pocket. Several of the other patrons at
Denny’s were concerned about the gun and asked a member of the wait staff if
it was legal for a person to bring a gun into the restaurant.
[3] Bond and Tranbarger ordered drinks and then walked to the crane machine
near the entrance of the Denny’s. At approximately 5:30 am, Mario Wilson,
his fiancée, Karen Dunbar, Annette Smith, and Carl Smith arrived at the
Denny’s. When they entered the restaurant and passed Bond and Tranbarger,
Bond said “look at [the] old people, what just dragged in at night when they get
old.” State’s Ex. 4. The four ignored this statement and continued to their
table.
[4] The group was seated at a window table close to the entrance. Sometime after
they had been seated, Bond and Tranbarger sat down at a booth directly behind
1
Ind. Code § 35-42-1-1.
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them. Bond again began making comments about how old the group was. At
that point, Wilson and Dunbar turned around to ask Bond if he had a problem
with them. Bond stated that he did not, but continued to talk about old people
being out at night. The other patrons in the restaurant heard raised voices and
became uncomfortable, as they knew that Bond was carrying a gun.
[5] At some point, Bond got up because he was upset and went to the bathroom.
As he passed Wilson’s table, Bond lifted up his shirt in a way that allowed
others to see the gun he was carrying. When Bond returned, he and Wilson
began to argue again, this time more loudly. This made other patrons so
nervous that they decided to leave.
[6] Eventually, Bond stood up and tossed money for his meal on the table. He then
turned around, flipped off Wilson with his middle finger, and told Wilson they
could take the fight outside. Wilson ignored this and continued talking to the
group at his table. Bond and Tranbarger walked outside of the Denny’s, but
they did not leave. Instead, Bond began banging on the window next to
Wilson’s table with his fist and then tapped on it with his gun. Bond motioned
to Wilson that he should come outside.
[7] Tranbarger told Bond they should leave, but Bond walked back towards the
Denny’s. Wilson stood up and yelled, “do not let that man back in.” Id.
Wilson then walked towards the entrance. Wilson then went outside, and
Bond shot him three times. Wilson was unarmed.
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[8] Dunbar and Carl Smith then went outside, where they saw Wilson hanging
from Bond’s arm in an attempt to stay upright. Dunbar and Carl Smith
wrestled Bond to the ground, where they kept him until the police came and
handcuffed him.
[9] Wilson was transported to the hospital, where he died as a result of his gunshot
wounds. One bullet had fractured his left cheek and lacerated the right carotid
artery, another struck his chin, and a third hit his right shoulder and lacerated
the right brachial artery. The autopsy showed that Bond was more than three
feet away from Wilson when he shot him. Any of the three shots would have
been fatal.
[10] On April 22, 2013, the State charged Bond with murder, a felony, and carrying
a handgun without a license, a class A misdemeanor. In addition, the State
alleged that Bond’s sentence should be enhanced because he used a firearm in
the commission of a felony. On June 27, 2013, Bond filed a notice of
affirmative defense, and the jury was given an instruction on self-defense at
trial. On June 4, 2014, Bond pleaded guilty to carrying a handgun without a
license.
[11] Bond’s three-day jury trial commenced on September 15, 2014. At trial, the
State presented the testimony of Dunbar, Carl Smith, and Annette Smith, as
well as the testimony of three restaurant patrons and a waitress who were
present during the shooting. Bond testified that he shot Wilson in self-defense
because Wilson kept “coming directly at” him after he told him to stop. Tr. p.
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290. However, Bond also testified that he was not sure if Wilson was armed
and admitted that Wilson had not threatened him or physically touched him
before he shot him. Tranbarger also testified that Wilson had not threatened or
touched Bond before Bond shot him and that Wilson was shot almost as soon
as he walked out of the door of the restaurant.
[12] The jury found Bond guilty of murder. On September 17, 2014, the trial court
sentenced Bond to three hundred and sixty-five days for the carrying a handgun
without a license conviction. On November 5, 2014, the trial court sentenced
Bond to fifty-eight years for the murder conviction. The sentences were ordered
to run concurrently. Bond now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
[13] Bond first argues that there was insufficient evidence to support his conviction
for murder because the State failed to disprove his claim of self-defense. When
an appellant challenges the sufficiency of the evidence rebuting a claim of self-
defense, we apply the same standard of review as that applied to sufficiency of
the evidence claims generally. McCullough v. State, 985 N.E.2d 1135, 1138 (Ind.
Ct. App. 2013). We neither reweigh the evidence nor judge the credibility of
the witnesses. Id. at 1139. We will not disturb the verdict if there is sufficient
evidence of probative value to support the trier of fact's conclusion. Id. We will
reverse only if we determine that no reasonable person could find that the State
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presented sufficient evidence to negate self-defense beyond a reasonable doubt.
Id. at 1138.
[14] Indiana Code section 35-41-3-2 provides that “[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 is not justified in using force if “the person has
entered into combat with another person or is the initial aggressor unless the
person withdraws from the encounter and communicates to the other person
the intent to do so and the other person nevertheless continues or threatens to
continue unlawful action.” I.C. § 35-41-3-2(g)(3). In addition, a defendant who
raises a claim of self-defense is required to show three things: (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 serious bodily harm. Id. The State then bears the
burden of disproving at least one of these elements beyond a reasonable doubt.
Id. “The State may meet this burden by rebutting the defense directly, by
affirmatively showing the person did not act in self-defense, or by relying upon
the sufficiency of its evidence in chief.” Id. Whether the State has met its
burden is a question of fact. Id.
[15] Bond claims that the State has failed to disprove any of the above three
elements beyond a reasonable doubt. He claims that the evidence showed he
acted in self-defense because the waitress on duty, Shontel Johnson, testified
that Wilson walked out of the entrance of the Denny’s towards Bond.
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[16] However, Bond mischaracterizes the evidence. Dunbar testified that Bond was
provoking Wilson from the moment they entered the Denny’s, making
comments about “old people” out at night. Tr. p. 19-22. A Denny’s patron,
Georgette Torres, testified that after the two men had argued loudly, Bond
walked past Wilson and his table and shifted his pants to reveal his gun. Id. p.
70. She also testified that Bond flipped off Wilson with his middle finger and
said they could take the argument outside. Id. at 71. The evidence also showed
that, when Wilson did not respond to his invitation to come outside, Bond
returned to provoke Wilson by tapping on the window next to his booth, first
with his hand and then with his gun. Tr. p. 73-74. The evidence further
showed that when Wilson still did not respond, Bond moved toward the front
door of the Denny’s. Id. at 24. The jury heard testimony that it was at that
point that Wilson yelled “do not let that man back in,” and headed towards the
entrance. Id. at 25.
[17] Furthermore, although Bond argued that he shot Wilson because he would not
stop coming towards him, both Dunbar and Tranbarger testified that Wilson
had barely exited the Denny’s before he was shot. Id. at 25, 315. It is clear
from the above evidence that Bond had several opportunities to withdraw from
any encounter, but chose instead to instigate a confrontation. See McEwen v.
State, 695 N.E.2d 79, 90 (Ind. 1998) (evidence that a defendant was the initial
aggressor and a willing participant in the violence can negate a claim of self-
defense). Therefore, a reasonable jury could determine that Bond did not act in
self-defense. Bond’s request that we reverse his conviction based on Johnson’s
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testimony is a request for this court to reweigh the evidence and judge the
credibility of witnesses, a request we decline.
II. Sentencing
[18] Bond next argues that his sentence is inappropriate in light of the nature of the
offense and his character. On appeal, this Court “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.” Ind. Appellate Rule 7(B). However, this
Court does not substitute its judgment for that of the trial court. Foster v. State,
795 N.E.2d 1078, 1092 (Ind. Ct. App. 2003). Under Appellate Rule 7(B), the
question is not whether it is more appropriate to impose a different sentence
upon the defendant, but whether the defendant’s sentence is inappropriate.
Steinberg v. State, 941 N.E.2d 515, 535 (Ind. Ct. App. 2011). The defendant
bears the burden of persuading this Court that the sentence he received is
inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[19] Regarding the nature of the offense, Bond instigated the confrontation with
Wilson. He went into a Denny’s displaying a gun he was not licensed to carry.
While armed with this gun, Bond provoked an argument with Wilson. He told
Wilson that he wanted to take their altercation outside. Bond then went
outside the Denny’s, where he had an opportunity to walk away, but instead he
chose to tap on the window with his fist and his gun. When that did not get
Wilson to come outside, he went back inside the Denny’s entrance. When
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Wilson left the Denny’s, he was shot almost as soon as he walked out of the
entrance. Wilson was shot three times, from at least three feet away, and any of
the three shots would have been fatal. We do not find that Bond’s sentence was
inappropriate in light of the nature of his offense.
[20] In considering Bond’s character, we note that Bond does have a criminal
history. He has two prior felony convictions for receiving stolen property and
theft. In addition, Bond was on probation at the time he committed the offense
in the instant case. It is clear that Bond has not learned from his past
experiences with the criminal justice system. The crime in the instant case is an
escalation in severity from his past crimes, and it is clear that lenient sentences
have not caused him to reconsider his behavior. We do not find that Bond’s
sentence was inappropriate in light of his character.
[21] The judgment of the trial court is affirmed.
Najam, J., and Friedlander, J., concur.
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