Moses Murithi Thomas, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Moses Murithi Thomas appeals his conviction of pointing a firearm, arguing instructional error and insufficient evidence. Concluding there was no error and the evidence was sufficient, we affirm.

Facts and Procedural History

[2] The facts most favorable to the verdict show that on August 21, 2024 around 5:30 p.m., Daniel Banicki, Assistant Chief of Police for the Town of Roseland, responded to a call from Thomas’ mother. Assistant Chief Banicki went to the home and talked to Thomas about getting help with his mental health. Thomas indicated that he was fine. Thomas’ mother reported to the Assistant Chief that Thomas had recently purchased a firearm. Later that evening, Thomas’ mother contacted Assistant Chief Banicki about an incident between Thomas and his brother. The Assistant Chief told Thomas’ mother to call 9-1-1, and he alerted an on-duty officer, Officer William Limon, to the situation and informed him of Thomas’ recent firearm purchase.

[3] Officer Limon responded to the Thomas home around 7:30 p.m. Thomas was in the house, and the officer went around to knock on the back glass door. Officer Limon saw Thomas enter the kitchen, unholster a black object from his right hip, and point it at the officer. When officers subdued Thomas, they removed a black firearm from his right side.

[4] The State charged Thomas with Level 6 felony pointing a firearm and Class A misdemeanor domestic battery. Prior to the commencement of trial, the State dismissed the domestic battery charge, and Thomas proceeded to trial on the single charge. A jury convicted Thomas of pointing a firearm, and the court entered judgment as a Class A misdemeanor and sentenced him to a suspended sentence of 360 days. Thomas now appeals.

Issues

[5] Thomas presents two issues for our review, which we restate as:

I. Whether the trial court erred when it failed to sua sponte instruct the jury on self-defense; and

II. Whether there was sufficient evidence to sustain Thomas’ conviction.

Discussion and Decision

I. Jury Instruction

[6] Thomas first argues that the trial court erred when it failed to instruct the jury on self-defense. Instructing the jury lies solely within the discretion of the trial court, and we will reverse only upon an abuse of that discretion. Ellis v. State, 194 N.E.3d 1205, 1214 (Ind. Ct. App. 2022), trans. denied. A defendant who fails to tender his own instruction and fails to object to the court's final instructions waives a claim of error on appeal. Williams v. State, 771 N.E.2d 70, 72 (Ind. 2002). At trial, Thomas neither tendered an instruction on self-defense nor objected to its omission.¹ He thus preserved nothing for appeal.

[7] To avoid waiver of the issue, Thomas contends that the trial court should be obligated to give a sua sponte instruction on self-defense and its failure to do so should be fundamental error. While Thomas acknowledges that Indiana jurisprudence does not support imposing such a duty on our trial courts, he nevertheless advocates for a change in Indiana law.

[8] Indeed, decades ago the Indiana Supreme Court held that a “trial court's failure to give sua sponte an instruction on self-defense even though there was some evidence which might support a self-defense claim, does not constitute fundamental error. The burden to request such an instruction is clearly upon the defendant.” Harris v. State, 377 N.E.2d 632, 634 (Ind. 1978). “ ‘As Indiana's intermediate appellate court, we are bound by Indiana Supreme Court precedent and are not at liberty to ‘reconsider’ that precedent.’ ” Sterling v. State, 199 N.E.3d 377, 386 (Ind. Ct. App. 2022) (quoting Hill v. State, 122 N.E.3d 979, 982 (Ind. Ct. App. 2019), trans. denied). Thus, Thomas’ argument fails.

II. Sufficiency of the Evidence

[9] In reviewing a claim of insufficient evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Sandleben v. State, 29 N.E.3d 126, 131 (Ind. Ct. App. 2015), trans. denied. Instead, we consider only the evidence most favorable to the verdict and any reasonable inferences drawn therefrom. Id. If there is substantial evidence of probative value from which a reasonable factfinder could have found the defendant guilty beyond a reasonable doubt, the verdict will not be disturbed. Labarr v. State, 36 N.E.3d 501, 502 (Ind. Ct. App. 2015). Moreover, when an appellant challenges the sufficiency of the evidence of his conviction after a jury verdict, “the appellate posture is markedly deferential to the outcome below ․” Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016).

[10] To convict Thomas of pointing a firearm, the State must have proved beyond a reasonable doubt that (1) Thomas (2) knowingly or intentionally (3) pointed (4) a firearm (5) at Officer Limon. See Appellant's App. Vol. 2 Confid., p. 5; see also Ind. Code § 35-47-4-3(b). Thomas challenges the State's evidence as to the identity of the object as a firearm.

[11] Thomas claims that, because the evidence led to two reasonable interpretations, the jury should have found him not guilty. He bases his argument on Final Jury Instruction Number Four, which stated: “If the evidence lends itself to two reasonable interpretations, you must choose the interpretation consistent with the defendant's innocence.” Tr. Vol. II, p. 101. He asserts Officer Limon's testimony suggested two interpretations: (1) he did not know what Thomas had in his hand and (2) he knew that it was a firearm that Thomas had in his hand.

[12] On direct examination at trial, Officer Limon testified that he saw Thomas come into the kitchen and make “the draw stroke motion and u[n]holster[ ] a black item and point[ ] it” at him. Id. at 66. The officer further testified:

Q. As you sit here today, what was the defendant pointing at you during that initial interaction between the sliding glass door?

A. An object that I believe to be a firearm. If I may elaborate further, it was black in color. I could see that; but there was reflection on the glass; so making out -- just based on how light works, you can't make out every single detail of every single object.

Q. But as you sit here today, you are confident that he was pointing that firearm at you on August 21st --

A. Yes.

․

Q. And as you sit here today, you are, in fact, certain that the defendant pointed the firearm at you?

A. Yes.

Q. No doubts in your mind?

A. No doubts.

Id. at 72, 77. On cross-examination, Officer Limon was asked if there was a possibility that what he had seen pointed at him was not a firearm, and he responded that he saw a black object and that it matched the firearm that officers later removed from Thomas’ hip. Id. at 78-79.

[13] It is well established that circumstantial evidence alone may support a conviction. Harbert v. State, 51 N.E.3d 267, 275 (Ind. Ct. App. 2016), trans. denied. “Furthermore, we ‘need not determine whether the circumstantial evidence is adequate to overcome every reasonable hypothesis of innocence, but rather whether inferences may be reasonably drawn from that evidence which support the verdict beyond a reasonable doubt.’ ” Maxwell v. State, 731 N.E.2d 459, 463 (Ind. Ct. App. 2000) (quoting Bustamante v. State, 557 N.E.2d 1313, 1318 (Ind. 1990)), trans. denied.

[14] Thomas’ argument is based on the premise that there were in fact two reasonable interpretations of the evidence. Given the circumstances, we do not think this is the case. Rather, as demonstrated by Officer Limon's testimony, the State presented sufficient circumstantial evidence from which the fact finder could have concluded beyond a reasonable doubt that the only reasonable interpretation of the evidence showed that it was the black firearm that Thomas pointed at Officer Limon.

[15] Given our Supreme Court's decision in Harris concerning a trial court's failure to give a sua sponte instruction on self-defense and the role circumstantial evidence may take in supporting a conviction, we conclude that there was no instructional error and that there was sufficient evidence to sustain Thomas’ conviction. Accordingly, we affirm his conviction.

[16] Affirmed.

FOOTNOTES

1.   At a post-trial/pre-sentencing hearing to address pro se motions filed by Thomas, the court stated, “And if I'm recalling correctly, the theory of defense here wasn't self-defense, it's that Mr. Thomas did not commit the crime.” Defense counsel responded, “Correct.” Tr. Vol. II, p. 121.

Robb, Senior Judge.

Mathias, J., and Bradford, J., concur.