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Moore v. State

Court of Appeals of Indiana

December 12, 2019

William Moore, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

          Appeal from the Marion Superior Court The Honorable Barbara Cook Crawford, Judge The Honorable Amy Barbar, Magistrate Trial Court Cause No. 49G01-1806-F3-19086

          Attorney for Appellant Barbara J. Simmons Batesville, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Tiffany A. McCoy Deputy Attorney General Indianapolis, Indiana

          Vaidik, Chief Judge.

         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 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 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] ...


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