Justin A. Muff, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] A jury found Justin A. Muff guilty of robbery, as a Level 3 felony. The trial court sentenced him to eight years, with five years executed and three years suspended to probation. On appeal, Muff argues that the trial court should have instructed the jury on battery and theft as lesser included offenses and that his sentence is inappropriate in light of the nature of the offense and his character. We affirm.

Facts and Procedural History

[2] Austin Couch was a compliance officer with Fort Wayne Community Schools. In 2019, Couch was personally involved in the termination of Muff's employment with the school district. A school resource officer described Muff as “particularly agitated that day[.]” Tr. Vol. 2 at 242.

[3] Around 12:50 p.m. on October 4, 2022, Couch was returning to his downtown office building after a lunchtime walk. Muff, who was wearing a mask and an orange hoodie, approached Couch from behind and struck him on the back of the head with his fist. Couch experienced “an explosion of light” and “lurch[ed] forward[.]” Id. at 131. Muff continued to pummel Couch while saying, “Austin Couch. Austin Couch.” Id. at 137. Couch thought that “there was something hauntingly familiar about” his assailant's voice. Id. at 138. Muff slammed Couch against a brick wall. Couch's phone, which was in his jacket pocket, fell onto the sidewalk. Muff picked up the phone and ran off. Couch chased him down the sidewalk. The incident was captured by one of the office building's surveillance cameras.

[4] Couch saw Muff get into and drive away in a “dark colored vehicle,” id. at 167, and he gave the license plate number to the police. The vehicle was registered to Muff's mother, who lived in a residence on Oakwood Drive. There officers found both the vehicle, which was in the garage, and Muff, who was in the front yard. Muff, who was no longer wearing the orange hoodie, told the officers that “he had been at work and that he had just got home ․ a short while ago.” Id. at 169. Muff worked for the city's Neighborhood Code Compliance Department. His employment records showed that he had used his key fob to enter the Department's building at 6:57 that morning. Police obtained a photo of Muff entering the building at that time wearing the orange hoodie. Police also obtained location information for Muff's phone, which showed that the phone was near the scene of the attack around 12:50 p.m.

[5] Couch suffered “multiple lumps” on the back of his head, wrist, and arm as a result of the attack. Id. at 133. His phone was recovered about a block from his office building and was “[u]nusuable. Destroyed.” Id. at 136. When a detective mentioned Muff's name to Couch, “floodgates opened.” Id. at 138. According to Couch, “I just understood and knew who had assaulted me. It just came back. I heard his voice. I had heard it before. The tension. The frustration. The anger.․ I knew it was Justin Muff.” Id.

[6] On November 3, a detective interviewed Muff about the attack. At the beginning of the interview, the detective referred to the victim as “Mr. Couch.” State's Ex. 35 at 02:35. Muff denied knowing anyone with that name. Id. at 02:38. Later in the interview, Muff referred to the victim as “this Austin Couch dude.” Id. at 14:04-14:05. Muff then claimed that the detective had used Couch's first name earlier in the interview, which he had not. During the interview, the detective also showed Muff the photo of him reporting for work on the morning of the attack. Muff claimed that he did not own an orange hoodie and that the man in the photo was a coworker, who did not report for work that day.

[7] The State charged Muff with robbery, as a Level 3 felony. The trial court held a two-day jury trial in January 2026. Couch and other witnesses testified for the State, and videos of the attack and Muff's police interview were played for the jury. The jury found Muff guilty as charged.

[8] At the sentencing hearing, the prosecutor read from Couch's victim impact statement, which provided in pertinent part,

This crime has ․ had a deep and lasting impact on my life. One of the greatest losses has been my sense of personal safety, especially in the place where I devote myself to serving others. Before this incident, I regularly walked outdoors during lunch as part of rebuilding my strength and health after chemotherapy. Those walks were not only exercise, they were also part of reclaiming normalcy and healing. Since the assault, I no longer feel safe enough to continue that routine, even after over three years. I am constantly scanning my surroundings and avoid being alone anywhere near our campus.․ The incident took from me my peace of mind, my confidence, and my safety, and a healthy routine that helped me recover from serious illness.

Tr. Vol. 3 at 52-53.

[9] Defense counsel emphasized that Muff had no criminal history and requested a sentence below the nine-year advisory term for a Level 3 felony, suggesting “[a] seven-year sentence, three years executed.” Id. at 51. The prosecutor recommended “nine years with seven years executed and two suspended.” Id. at 55. Muff told Couch that he was “very remorseful for what happened” and “didn't know anything about [his] cancer.” Id. at 56.

[10] The trial court addressed Muff as follows:

As mitigators, it's true you have no criminal history and that is extraordinarily rare in this forum. I'll give you some credit, not a whole lot, for your remorse, as I believe you're more sorry you got convicted than sorry for what you did. As aggravators, I'll show the impact on the victim.․ If you balance out the mitigators and aggravators, you're still looking at a nine-year sentence. I'll show below that. I'll show an eight-year sentence. Show six years executed, two years ordered suspended.․ Six years executed, I mean, sir, it was a crime of violence in broad daylight on Fort Wayne Community School property, so there's consequences for your actions.

Id. at 61-62.

[11] The chronological case summary, judgment of conviction, and abstract of judgment all reflect an eight-year sentence, with five years executed and three years suspended. Appellant's App. Vol. 2 at 19, 149, 150.¹ This articulation of the sentence inures to Muff's benefit, and the State does not request remand with instructions to amend the judgment to conform to the trial court's oral sentencing statement. Consequently, we will not disturb the judgment.

[12] Muff now appeals his conviction and his sentence. Additional facts will be provided below as necessary.

Discussion and Decision

Issue One: Jury Instruction

[13] The State alleged that Muff committed Level 3 felony robbery by “knowingly or intentionally tak[ing] property, from Austin Couch or the presence of Austin Couch, by using or threatening the use of force or by putting Austin Couch in fear; said act resulting in bodily injury, to Austin Couch[.]” Id. at 63; see also Ind. Code § 35-42-5-1(a) (robbery statute). At the beginning of the second day of trial, defense counsel informed the court of his “plan to submit proposed instructions for ․ the lesser included of Battery and then a Theft.” Tr. Vol. 2 at 178.² The court responded,

I don't see how you take the State's one Robbery and split them into Charges. I don't think that's technically a lesser included. I think that's, the State lives and dies by their Charge. Do you have any case law that says you can split a Robbery into two different offenses?

Id.

[14] Defense counsel replied,

I know the Court is intimately acquainted with [Wright v. State, 658 N.E.2d 563 (Ind. 1995)]. The three step analysis.[3] [M]y contention is not that it's inherently included, cause it has nothing to do with the elements. My contention is that it's ․ factually included or it's factually a lesser included based upon the charging information, the probable cause affidavit, and then most ․ notably the information that has come forth from the trial itself. Particularly, ․ Mr. Couch testifying that he was battered repeatedly. No one said anything about, basically a Robbery, like, the suspect didn't say anything about money, wallet, a watch, or anything of that nature ․ and that there is a serious evidentiary dispute and if there's a serious evidentiary dispute then the lesser included for the battery should be included.

Id. at 178-79.

[15] The prosecutor argued,

We are in the position that this is a single act. That there was clearly a Battery that resulted in the property falling from the person and then he took that property and ran. It's a single episode of criminal conduct.․ It has always been [c]harged as a Robbery. Using the comments or statements of people that are civilians, saying he was assaulted or battered does not change the fact that, the facts of this case on the video are that this is a Robbery. I mean, [Muff] ended up assaulting [Couch] and taking his property and running from the scene.

Id. at 179.

[16] Ultimately, the trial court concluded,

They can find him guilty or not guilty of the Robbery. Unless you can find some case that says I can split one Charge into multiple Charges and call it a lesser included, I don't intend to give that instruction unless something changes between now and both sides resting their cases. This came up last year and I could not find any case law that supported the idea of taking one Charge and splitting it into multiple Charges cause that's no longer a lesser included.

Id. at 180.

[17] On appeal, Muff argues that “[t]he trial court abused its discretion by refusing the requested lesser-included-offense instructions on battery and theft.” Appellant's Br. at 14 (bold removed). Indiana Appellate Rule 46(A)(8)(e) states, “When error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto.” Muff's proposed instructions do not appear anywhere in his brief or his appendix, assuming that they were ever drafted in the first place. Cf. Ind. Appellate Rule 50(A)(2)(e) (providing that an appellant's appendix “shall contain ․ any instruction not included in appellant's brief under Rule 46(A)(8)(e), when error is predicated on the giving or refusing of the instruction”); I.C. § 35-37-2-2(6) (stating that if defense counsel “desires special instructions to be given to the jury, these instructions must be ․ reduced to writing”). Consequently, he has waived this issue for review. Richardson v. State, 697 N.E.2d 462, 465 (Ind. 1998) (citing predecessor of Ind. Appellate Rule 46(A)(8)(e)).⁴ We therefore affirm his conviction.

Issue Two: Appropriateness of Sentence

[18] Muff also asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B), which provides that 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.” Our “role under Rule 7(B) is to ‘leaven the outliers,’ and we reserve our 7(B) authority for exceptional cases.” Livingston v. State, 113 N.E.3d 611, 613 (Ind. 2018) (per curiam) (quoting Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)).

[19] Indiana's flexible sentencing scheme allows trial courts to tailor a sentence appropriate to the circumstances presented, and “the trial court's judgment should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day 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.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Muff has the burden to establish that his sentence is inappropriate. Konkle v. State, 253 N.E.3d 1068, 1092 (Ind. 2025).

[20] In determining whether a sentence is inappropriate, the advisory sentence “is the starting point the Legislature has selected as an appropriate sentence for the crime committed.” Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). A Level 3 felony carries a sentencing range of three years to sixteen years, with an advisory sentence of nine years. I.C. § 35-50-2-5(b). When the trial court imposes the advisory sentence, “the defendant bears a particularly heavy burden in persuading us that his sentence is inappropriate[.]” Fernbach v. State, 954 N.E.2d 1080, 1089 (Ind. Ct. App. 2011), trans. denied. Here, the trial court imposed a sentence that is one year below the advisory and only one year more than defense counsel requested at the sentencing hearing, so Muff's burden is especially onerous.

[21] Regarding the nature of the offense, Muff emphasizes that the incident was brief, did not involve the use of a weapon, was not “undertaken for ordinary financial gain[,]” and resulted in the taking of a phone for which Couch did not seek restitution. Appellant's Br. at 12.⁵ The State correctly points out that Muff “committed a violent and targeted assault” that was “carried out with purpose, anger, and personal animus.” Appellee's Br. at 11. Muff struck Couch in the head from behind and slammed him into a brick wall, which resulted in multiple bodily injuries and “emotional trauma.” Id. at 12. Muff has failed to establish that the nature of the robbery merits a reduced sentence.

[22] As for his character, Muff notes that he was forty-two years old at the time of sentencing and “had no prior criminal convictions.” Appellant's Br. at 12. He then asserts that “[a] person who reaches middle age without a criminal record is not similarly situated to a repeat offender or a person with escalating criminal behavior.” Id. The State observes that Muff's lack of criminal history “was already taken into account by the trial court's decision to impose a sentence below the advisory and suspend several years.” Appellee's Br. at 13. The State also argues, and we agree, that “Muff's age ․ cuts against him, not in his favor.․ Muff was not a teenager acting rashly; he was a middle-aged man who chose to ambush a former coworker, assault him, and rob him of his property.” Id.

[23] Muff also points to testimony and letters of support from his mother and friends, as well as his years of coaching and mentoring children in the community, as positive evidence of his character.⁶ Nevertheless, Muff harbored a grudge against Couch for three years, snuck up behind him on a downtown sidewalk outside his workplace, and mercilessly pummeled him, slammed him into a brick wall, and stole his phone. Muff then lied to the police about his relationship with Couch and attempted to pin the robbery on his innocent coworker. This is hardly character befitting a devoted son, friend, and role model.

[24] In conclusion, Muff has failed to carry the heavy burden of persuading us that his less-than-advisory sentence, with three years suspended to probation, is inappropriate in light of the nature of the offense and his character. Therefore, we affirm it.

[25] Affirmed.

FOOTNOTES

1.   The State notes that the Indiana Department of Correction's website “also states that Muff is serving a five-year sentence.” Appellee's Br. at 8 n.1.

2.   Battery is defined as a knowing or intentional touching of another person in a rude, insolent, or angry manner. Ind. Code § 35-42-2-1(c) (2022). The base offense is a Class B misdemeanor. Id. The offense is a Class A misdemeanor if it results in bodily injury to any other person. I.C. § 35-42-2-1(d)(1) (2022). Theft is defined as the knowing or intentional exertion of unauthorized control over property of another person, with intent to deprive the other person of any part of its value or use. I.C. § 35-43-4-2(a) (2022). The base offense is a Class A misdemeanor. Id. The offense is a Level 6 felony if the value of the property is at least $750 and less than $50,000. I.C. § 35-43-4-2(a)(1)(A). Defense counsel did not specify which level(s) of either offense would be included in his proposed instructions.

3.   Wright “set forth a three-part test for determining when a trial court should instruct on a lesser included offense.” Evans v. State, 727 N.E.2d 1072, 1080 (Ind. 2000). “Part one requires the trial court to determine whether the lesser offense is ‘inherently’ included in the offense charged by comparing the statute defining the crime charged with the statute defining the alleged lesser included offense.” Id. “If necessary, part two of the Wright test alternatively requires the trial court to determine whether the lesser offense is ‘factually’ included in the offense charged by comparing the charging instrument with the statute defining the alleged lesser included offense.” Id. at 1080-81. “[I]f the court concludes that the lesser offense is either inherently or factually included in the offense charged, then part three requires the court to determine whether a serious evidentiary dispute exists as to which offense was committed by the defendant, given all the evidence presented by both parties.” Id. at 1081. “If a serious evidentiary dispute does exist, it is reversible error not to give the instruction on the inherently or factually included lesser offense.” Id.

4.   “The purpose of jury instructions is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Murray v. State, 798 N.E.2d 895, 899 (Ind. Ct. App. 2003). “In reviewing a trial court's decision to give a tendered jury instruction, we consider (1) whether the instruction correctly states the law, (2) is supported by the evidence in the record, and (3) is not covered in substance by other instructions.” Id. at 899-900. As indicated in footnote 2 above, absent a written instruction, we have no way of knowing which level(s) of battery and theft defense counsel would have proposed as lesser included offenses of Level 3 felony robbery, and thus we have no way of knowing whether the instructions would have correctly stated the law and been supported by the evidence on that point alone. Muff's substantive Wright analysis is similarly lacking. For example, Muff asserts that battery was a factually lesser included offense of robbery “because the State's robbery theory depended on force and bodily injury[,]” Appellant's Br. at 15, but he cites no authority for this assertion. Wright states that an alleged lesser included offense is factually included in the crime charged “[i]f the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser included offense[.]” 658 N.E.2d at 567. Muff makes no argument in this regard.

5.   Muff also notes that there was “no evidence of permanent physical injury[,]” Appellant's Br. at 11, but that is not an element of Level 3 felony robbery. Cf. I.C. § 35-42-5-1(a) (providing that robbery is a “Level 2 felony if it results in serious bodily injury to any person other than a defendant”). Muff further states that “the record does not show that [he] knew Couch was recovering from cancer or targeted him because of that vulnerability.” Appellant's Br. at 11-12. We observe that in criminal law, as well as in tort law, “a defendant takes his victim as he finds him.” Bailey v. State, 979 N.E.2d 133, 142 (Ind. 2012).

6.   Muff further claims that medical and mental health issues that he raised at sentencing “bear[ ] on character and appropriate placement.” Appellant's Br. at 13. The trial court was not obligated to believe Muff's testimony, and the State points out that his “ability to ambush and attack Couch demonstrates that his physical condition did not meaningfully impair his capacity for violence.” Appellee's Br. at 13.

Bailey, Judge.

Brown, J., and Weissmann, J., concur.