Roger L. Moore, Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

[1] Roger Moore, Jr. appeals his conviction for Level 5 felony battery with a deadly weapon. Moore argues the State presented insufficient evidence to prove the pellet gun he used was a deadly weapon. We affirm.

Facts and Procedural History

[2] In 2021, Moore lived in a small neighborhood adjacent to West Vigo High School. Moore and four neighbors, including Dale Howard, shared a gravel access road to get to each of their properties. For years, Howard, who was sixty-four years old at the time, maintained the access road by purchasing rock, filling potholes, and grading the road.

[3] Moore and Howard had several confrontations over the years, typically concerning maintenance of the access road. Once, for example, Howard was working at the end of the road, and Moore told him to “get the F out of the way.” Tr. Vol. II p. 36. Another time, Howard contacted the sheriff after Howard swept broken glass from the access road onto Moore's driveway, then Moore swept the glass back onto the access road.

[4] Around 8:00 a.m. on December 15, 2021, Howard went to a gas station to buy fuel for his tractor so he could work on the access road. Moore came out of the gas station and “started mumbling stuff[,]” but Howard did not engage him. Id. at 37. After returning home, Howard began grading the access road and passed Moore's property without incident at least once. On another pass, Moore exited his home to retrieve his trash can, “flipped [Howard] off[,]” and said something that Howard did not hear over the tractor noise. Id. at 64.

[5] A short time later, while making another pass in front of Moore's house, Howard “felt a real bad pain in [his] leg[.]” Id. at 44. Howard stopped the tractor and looked around but did not see anyone. He saw blood trickling through his pants, so he returned home and found “a finger size[d] hole in [his] leg[.]” Id. at 45. After calling 9-1-1, Howard saw Moore “fish-tail[ ]” out of his driveway. Id. at 46.

[6] Howard was treated for a gunshot wound at an emergency room, and x-rays revealed a lead pellet under the skin in Howard's leg. A surgeon decided not to remove the pellet because the risk of damaging Howard's muscle was too significant. Three years later, Howard reported that the injury “still hurts every day.” Id. at 55.

[7] During their investigation, Moore's wife attempted to locate Moore's air-rifle pellet gun to give to police, but she could not find it. When the police later searched Moore's garage, they found the rifle-style pellet gun. The State charged Moore with Level 5 felony battery by means of a deadly weapon and Level 6 felony battery resulting in moderate bodily injury.

[8] At trial, Vigo County Sheriff's Office Sergeant John Newman testified that the air rifle had “the same capabilities” as a twenty-two-caliber rifle, which he expected to cause “pretty significant damage to somebody ․ beyond what a normal B.B. gun would do.” Tr. Vol. III p. 50. In addition, the owner's manual indicated the rifle would shoot a pellet at about 1,250 feet per second and as far as 450 yards. Id. at 53.

[9] The jury found Moore guilty as charged. At sentencing in January 2025, the court vacated the Level 6 felony conviction due to double jeopardy concerns. For his Level 5 felony conviction of battery by means of a deadly weapon, the court sentenced Moore to three years, all suspended to probation. Moore now appeals.

Discussion and Decision

[10] Moore's sole issue on appeal is whether the State presented sufficient evidence to prove that the rifle-style pellet gun was a deadly weapon. Our standard of review is well settled:

For sufficiency of the evidence challenges, we consider only probative evidence and reasonable inferences that support the judgment of the trier of fact. On sufficiency challenges, we will neither reweigh evidence nor judge witness credibility. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021) (citations omitted).

[11] To convict Moore of battery by means of a deadly weapon, the State was required to prove beyond a reasonable doubt that Moore knowingly or intentionally touched Howard in a rude, insolent, or angry manner by shooting him with a deadly weapon. Ind. Code §§ 35-42-2-1(c)(1), -1(g)(2) (2020). A “deadly weapon” is a “loaded or unloaded firearm” or a “destructive device, weapon, device ․ equipment ․ or other material that in the manner it: (A) is used; (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(a) (2012). “Serious bodily injury” is “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 (2012).

[12] “Although not firearms, pellet or BB guns can be considered deadly weapons.” Davis v. State, 835 N.E.2d 1102, 1112 (Ind. Ct. App. 2005), trans. denied. Whether an object is a deadly weapon is a question of fact “determined from a description of the weapon, the manner of its use, and the circumstances of the case.” Gleason v. State, 965 N.E.2d 702, 708 (Ind. Ct. App. 2012) (citing Merriweather v. State, 778 N.E.2d 449, 457 (Ind.Ct.App.2002)). “[T]he manner in which the defendant actually used the object is examined[,]” not the object's original purpose. Id. (citation omitted).

[13] Moore distinguishes his case from several others where a pellet or BB gun was used “in a threatening manner, almost always at close range to the victim” and “caused the victims to be extremely fearful[.]” Appellant's Br. p. 9. For example, in Moore v. State, 137 N.E.3d 1034 (Ind. Ct. App. 2019), the defendant held a pellet gun to his mother's head, and his mother believed the gun was real; in Davis, 835 N.E.2d 1102, the defendant pointed a BB gun at a bank teller, witnesses believed the gun was real, and some testified that they were terrified; and in Merriweather, 778 N.E.2d 449, the defendant pointed a BB gun at a clerk during a store robbery and discharged the weapon at close range. Moore claims that because he “did not use the pellet gun in a threatening manner towards Howard, and Howard was not placed in extreme fear as a result[,]” the pellet gun was not a deadly weapon. Appellant's Br. p. 11. However, the State was not required to prove that Moore used the pellet gun in close range to the victim or that the victim was fearful or intimidated. See Davis, 835 N.E.2d at fn. 5 (a victim's fear and belief that an item is a real gun are not the sole factors used to determine whether an object is a deadly weapon).

[14] In this case, Sergeant Newman compared the pellet gun's capabilities to that of a twenty-two-caliber rifle, noting that the pellet gun could cause “pretty significant damage to somebody[.]” Tr. Vol. III p. 50. Moreover, the pellet gun could shoot up to 450 yards away at 1,250 feet per second. Id. at 53. In this case, Moore did use his rifle-style pellet gun in a manner that caused significant injury: Moore does not dispute that he used the pellet gun to shoot at Howard or that the pellet made a “finger size[d] hole” in Howard's leg. Tr. Vol. II p. 45. Today, the pellet remains permanently lodged in Howard's leg, causing him daily pain. A reasonable jury could find that the pellet gun, as it was used here, could and did cause serious bodily injury. The evidence was sufficient to find the pellet gun was a deadly weapon.

[15] Affirmed.

Scheele, Judge.

Judges Foley and Kenworthy concur. Foley, J., and Kenworthy, J., concur.