HARDING II v. STATE (2025)

MEMORANDUM DECISION

[1] Michael A. Harding, II appeals his convictions for felony murder, Level 3 felony aggravated battery, and Level 5 felony intimidation. He also appeals his sentence and a firearm sentencing enhancement. Harding raises two issues for our review, which we restate as follows:

1. Whether the State presented sufficient evidence to negate Harding's claim of self-defense.

2. Whether Harding's aggregate ninety-two-year sentence is inappropriate in light of the nature of the offenses and his character.

[2] We affirm Harding's convictions and sentence but remand with instructions for the trial court to clarify that Harding's firearm enhancement is attached to his felony murder conviction.

Facts and Procedural History

[3] In May 2016, Harding was sixteen years old and a student at Snider High School in Fort Wayne. On May 18, another student at the school, Dontay White, and one of his friends, Jerrad Newman, were “looking to sell” Xanax pills and marijuana. Tr. Vol. 3, p. 14. A third party connected White and Newman with Harding, and White and Harding engaged in several text messages coordinating Harding's purchase of $120 in Xanax pills for later that day.

[4] But Harding in fact intended to rob White and Newman. The parties agreed to meet at a specified gas station, and, around 10:30 that evening, Newman drove a vehicle to the gas station with his girlfriend, Antonia, in the front passenger seat and White in the rear driver-side seat. Neither Newman nor Antonia was armed, and Antonia was not aware of whether White carried a firearm at the time.

[5] The group did not see Harding at the gas station, but he texted White shortly after and said he saw them drive by and they could meet him at a self-storage facility a short distance away. The group drove to the new location and found Harding, who entered the rear passenger-side seat of the vehicle. Harding instructed the group to drive him to a nearby apartment complex.

[6] At the apartment complex, Newman asked White if the transaction was completed, but instead of a response Newman heard a “ruffling” noise. Id. at 22. Newman turned around and saw Harding holding a black handgun. Harding then shot Newman in the head and arm, and Newman fell out of the vehicle through an open door. White struggled with Harding; Harding shot White in the neck, and White later died of his wounds. Antonia exited the car, but, by the time she was out, Harding was “standing directly in front of [her] holding the gun to [her] head.” Tr. Vol. 2, p. 239. Harding told Antonia to “get back into the car or I will kill you too.” Id. Antonia complied, and Harding fled the scene.

[7] Residents at the complex heard the gunshots and called 9-1-1. Over the next several years, investigating officers had few meaningful leads as to the shooter. However, at some point, the third party who had connected White and Newman with Harding informed investigating officers of that connection. Officers were then able to identify Harding's cell phone location data, which placed Harding at the scene of the shootings. And officers spoke with Timmie Johnson, for whom Harding had spent some time working. Johnson informed the officers that Harding had “told me he was there” at the shooting; that “it ․ was not supposed to be a drug deal[ ] but a robbery”; and that Harding had told Johnson that “somebody else” had shot White and Newman. Tr. Vol. 4, p. 39. Johnson also told the officers that Harding had said he had “[n]o” remorse for the victims and that he would not turn the alleged shooter in to authorities. Id.

[8] In 2023, the State charged Harding with felony murder, Level 3 felony aggravated battery, Level 3 felony attempted robbery, and Level 5 felony intimidation. The State also charged Harding with a sentencing enhancement for using a firearm in the commission of a felony. Newman, Antonia, Johnson, and others testified for the State at Harding's ensuing jury trial.

[9] For his part, Harding alleged that he had shot White and Newman in self-defense. In his testimony, Harding admitted that he entered the vehicle armed. He stated that, inside the vehicle, he saw that White had a firearm as well, but Harding thought “nothing of it” because White was not doing anything with the gun. Id. at 125. He then stated that, at the apartment complex, he suddenly “pranked out,” which in context appears to mean that he panicked, and then “grab[bed]” White's gun. Id. This resulted in a struggle and accidental discharge of the firearm, which, in turn, led to Newman's and White's injuries. Id. Harding did not mention any accomplices during his testimony as he had done in previous discussions with Johnson.

[10] The jury found Harding guilty as charged, and the trial court entered its judgment of conviction against Harding on all counts save for the Level 3 felony attempted robbery count, which was a lesser-included offense to the felony murder count. After a sentencing hearing, the court found the following aggravating and mitigating circumstances:

While you don't have a large criminal history, you do have criminal history. Unlikely to commit another crime, I don't find that ․ I do give you youth as a mitigator. Obviously, you were very young when this occurred. As aggravators, ․ while not the worst of the worst, you do have criminal involvement[ between] the juvenile case[ ] as well as two misdemeanors ․ You have had some efforts at rehabilitation that have failed ․ [T]he nature and circumstances of the offense[s] I do find as aggravators․

Id. at 202. The court then sentenced Harding to fifty-eight years for felony murder; twelve years for Level 3 felony aggravated battery; four years for Level 5 felony intimidation; and eighteen years for the use of a firearm enhancement. The court ordered the sentences to run consecutively for a total aggregate term of ninety-two years.

[11] This appeal ensued.

1. The State presented sufficient evidence to rebut Harding's claim of self-defense.

[12] On appeal, Harding first asserts that the State failed to present sufficient evidence to rebut his claim of self-defense. As our Supreme Court has made clear:

when a defendant challenges the State's sufficiency of the evidence to rebut a claim of self-defense, the standard of review remains the same as for any sufficiency of the evidence claim. We do not reweigh evidence or assess witness credibility, and only look to the evidence most favorable to the judgment. We will affirm the defendant's conviction if there is evidence, including reasonable inferences, that supports the judgment. And we will reverse the defendant's conviction only if no reasonable person could say that the defendant's self-defense claim was negated by the State beyond a reasonable doubt.

Turner v. State, 253 N.E.3d 526, 533 (Ind. 2025) (citation modified).

[13] Self-defense is a legal justification for what would otherwise be criminal conduct, and it operates as a complete bar to conviction. Id. at 534. In particular, Indiana Code section 35-41-3-2(c) (2015)¹ provides:

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:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony.

The “statutory trigger” is generally a reasonable belief in “the imminent use of unlawful force.” Id. at 535. We evaluate the reasonableness of the defendant's belief “only prospectively.” Id. (emphasis removed). We also apply “both a subjective and an objective standard to evaluate the reasonableness of a defendant's belief that force was necessary to protect against the imminent use of unlawful force.” Id. “Subjectively, the defendant must actually believe force is necessary, and[,] objectively, that belief must be one that a reasonable person would form given the circumstances.” Id.

[14] The State readily rebutted Harding's claim of self-defense. First, the jury found him guilty of attempting to rob Newman, White, and Antonia while armed with a firearm, and it was during that attempt that Harding killed White and shot Newman. As a matter of law, Harding cannot seek relief on appeal under a theory of self-defense against those same parties following that verdict. See Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997) (“A person who kills while committing or attempting to commit a robbery is a person who kills while committing a crime and so the defense of self-defense is not available.”); see also Henderson v. State, 795 N.E.2d 473, 481 (Ind. Ct. App. 2003) (“By its very nature, robbery is a crime which precludes the use of self-defense if the killing occurs during the commission of the robbery.”), trans. denied.

[15] Second, Harding's own testimony did not present a sufficient case of self-defense. He testified that, while under no threat of an imminent use of force, he grabbed at White's supposed firearm, which caused it to accidentally discharge. That is not a reasonable basis upon which to “trigger” the defense of self-defense. See Turner, 253 N.E.3d at 535. And, further, Harding's narrative to the jury was inconsistent with his statements to Johnson and others about the shooting.

[16] The jury had no obligation to credit Harding's testimony and to disregard the weight of the evidence, and we will not reweigh the evidence on appeal. The State presented sufficient evidence to rebut his claim of self-defense.

2. Harding's sentence is not inappropriate.

[17] Harding also argues that his ninety-two year aggregate sentence is inappropriate in light of the nature of the offenses and his character. Under Indiana Appellate Rule 7(B), we may modify a sentence that we find is “inappropriate in light of the nature of the offense and the character of the offender.” Making this determination “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

[18] However, sentence modification under Rule 7(B) is reserved for “a rare and exceptional case.” Livingston v. State, 113 N.E.3d 611, 612 (Ind. 2018) (per curiam). Thus, when conducting this review, we will defer to the sentence imposed by the trial court unless the defendant demonstrates compelling evidence that portrays the nature of the offenses and his character in a positive light, such as showing a lack of brutality in the offenses or showing substantial virtuous character traits. Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[19] For his conviction of felony murder, Harding faced a sentencing range of forty-five to sixty-five years with an advisory term of fifty-five years. I.C. § 35-50-2-3. For his Level 3 felony conviction, Harding faced a sentencing range of three to sixteen years with an advisory term of nine years. I.C. § 35-50-2-5(b). For his Level 5 felony conviction, Harding faced a sentencing range of one to six years with an advisory term of three years. I.C. § 35-50-2-6(b). And, for his use of a firearm in the commission of the offenses, Harding faced an additional fixed term of imprisonment of between five and twenty years. I.C. § 35-50-2-11(g).

[20] Thus, Harding faced a possible maximum sentence of 107 years. However, the trial court sentenced Harding to above-advisory but below-maximum terms of fifty-eight years for felony murder; twelve years for Level 3 felony aggravated battery; four years for Level 5 felony intimidation; and eighteen years for the use of a firearm enhancement, which the court ordered to run consecutively for a total aggregate term of ninety-two years.

[21] On appeal, Harding contends that his aggregate sentence is inappropriate due to his age at the time of the offenses, his minimal criminal history, and his low-risk of recidivism according to his IRAS score. However, the trial court expressly considered all three of those factors when it sentenced Harding. It properly considered his youth to be a mitigating factor. It properly gave little weight either way to his criminal history, which is minimal but is not free of prior offenses. And the court expressly disagreed with the IRAS assessment based on the fact that Harding does have some criminal history, which supports a reasonable inference of recidivism.

[22] Harding does not otherwise present compelling evidence that portrays the nature of the offenses and his character in a positive light. He has therefore not met his burden to persuade us that the trial court's exercise of its sentencing discretion was so unreasonable as to justify our intervention with his sentence. Accordingly, we affirm his sentence.

[23] That said, the State properly notes that the trial court did not correctly “attach” the firearm enhancement to a particular offense. See Appellee's Br. at 24 n.3. The firearm enhancement should be attached to Harding's conviction for felony murder. We therefore remand with instructions for the trial court to correct that oversight.

Conclusion

[24] For all of these reasons, we affirm Harding's convictions and sentence but remand with instructions for the trial court to clarify that Harding's firearm enhancement is attached to his felony murder conviction.

[25] Affirmed and remanded with instructions.

FOOTNOTES

1.   The statute has been amended since the commission of the instant offenses, but those amendments are immaterial to this appeal.

Mathias, Judge.

Altice, C.J., and DeBoer, J., concur.