FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

PATRICIA CARESS McMATH GREGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Indianapolis, Indiana

BRIAN REITZ

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

KENDALL JOHNSON, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1209-CR-755

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Mark D. Stoner, Judge

Cause No. 49G06-1106-MR-41576

April 30, 2013

OPINION -FOR PUBLICATION

MAY, Judge
2

Kendall Johnson appeals his convictions of and sentences for murder, a felony,1and 

Class C felony battery.2 He presents two issues for our consideration:

1. Whether the trial court abused its discretion when it declined to instruct the 

jury on reckless homicide as a lesser-included offense of murder; and

2. Whether Johnson’s sentence was inappropriate based on his character and the 

nature of the offense.

We affirm.

FACTS AND PROCEDURAL HISTORY3

Around 2:00 a.m. on June 10, 2011, Johnson arrived at Quintell Williams’ house to 

visit his girlfriend, Natasha Jordan, who was staying with Williams for the evening. Johnson 

and Jordan argued, and another person in the house, Arian Douglass, asked Eric Bell to come 

to the house and ask Johnson to leave. After Bell arrived, Johnson, Jordan, and Bell went 

outside the house. Soon afterward Williams and Douglass heard gunshots. Williams walked 

outside and discovered Bell’s body on the ground. An autopsy revealed Bell was shot eleven 

times and his death resulted from gunshot wounds.

Police apprehended Johnson, who had paid someone $20.00 to drive him from the 

scene. Johnson was carrying a gun that matched the bullet fragments and shell casings found 

 

1

Ind. Code § 35-42-1-1(1).

2

Ind. Code § 35-42-2-1(a)(3).

3 The record on appeal in this case was prepared pursuant to the Indiana Supreme Court’s “Order Establishing 

the Indiana Court Reporting Pilot Project for Exploring the Use of an Audio/Visual Record on Appeal[,]” 

issued on September 18, 2012, and effective on July 1, 2012. See Ind. Supreme Court Case No. 94S00-1209-

MS-522. Therefore, the citations to the transcript will be to the “AV Recording.” We are grateful for the 

ongoing cooperation of the Honorable Mark D. Stoner of Marion Superior Court, the Marion County Public 

Defender Agency, and the Office of the Indiana Attorney General in the execution of this pilot project.
3

at the murder scene. The State charged Johnson with murder, Class C felony battery, Class D 

felony strangulation,4and Class D felony possession of marijuana.5 The State asked that 

Johnson’s sentence be enhanced because he used a firearm to commit the murder. 6 The trial 

court granted Johnson’s motion to sever the marijuana charge.

During trial, the court granted the State’s motion to dismiss the strangulation charge, 

and then the jury returned a guilty verdict on the murder and battery counts. The trial court 

sentenced Johnson to fifty-five years for murder and to four years for Class C felony battery,

and the court ordered those sentences served concurrently. 

DISCUSSION AND DECISION

1. Jury Instruction

In reviewing a decision whether to give a tendered instruction, we consider: (1) 

whether the instruction correctly states the law; (2) whether there was evidence in the record 

to support the instruction; and (3) whether the substance of the instruction is covered by other 

instructions. Androusky v. Walter, 970 N.E.2d 687, 691 (Ind. Ct. App. 2012). The trial court 

has discretion in instructing the jury, and its determination whether the record supported the 

instruction and whether other instructions covered the topic will be reversed only when the 

instruction amounts to an abuse of discretion. Id. A party seeking a new trial on the basis of 

instructional error must show a reasonable probability his substantial rights have been 

adversely affected. Id. 

 

4

Ind. Code § 35-42-2-9.

5

Ind. Code § 35-48-4-11.

6

Ind. Code § 35-50-2-11.
4

Johnson requested an instruction regarding reckless homicide as a lesser-included 

offense of murder.7 Counsel argued that “due to the number of shots that were fired and the 

evidence [inaudible] from Mr. Johnson, that it would be reasonable to infer that this was a 

self-defense shooting at one point, and then after that it became a reckless shooting or 

reckless homicide.” (AV Recording 2, 8/8/12; 13:13:40 – 13:13:48.) The trial court denied 

Johnson’s request:

OK. Alright. And I think again the court believes that the evidence is in the 

defendant’s version that he was shooting in self defense...that he fired twice 

while the victim was facing him, or the decedent, whether or not he is the 

victim or not is something for the jury to decide. That he fired twice at the 

decedent at relatively close range and as he was running away he again was 

firing at the person as he was running away but I don’t think there’s . . . I still 

don’t think there’s any evidentiary dispute that he was intending to just fire off 

into the air or fire indiscriminately that he was firing towards the victim. Plus I

think it’s kind of hard to ignore the autopsy result that he actually hit the victim

or decedent the multiple times that he did.

(Id. at 13:16:53 – 13:17:55.) The trial court did not abuse its discretion, as there was no 

evidence to support the instruction.

Our Indiana Supreme Court recently reiterated why reckless homicide is an inherently 

included lesser offense of murder:

[R]eckless homicide occurs when the defendant “recklessly” kills another 

human being, and murder occurs when the killing is done “knowingly” or 

“intentionally.” Compare Ind. Code § 35-42-1-5, with I.C. § 35-42-1-1(1). 

Reckless conduct is action taken in plain, conscious, and unjustifiable 

disregard of harm that might result and the disregard involves a substantial 

deviation from acceptable standards of conduct. I.C. § 35-41-2-2(c). By 

 

7

“A person who recklessly kills another human being commits reckless homicide, a Class C felony.” Ind. 

Code § 35-42-1-5. “A person engages in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, 

and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from 

acceptable standards of conduct.” Ind. Code § 35-41-2-2(c).
5

contrast, a person engages in conduct “knowingly” if the person is aware of a 

“high probability” that he or she is doing so. I.C. § 35-41-2-2(b). 

Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (case citations and footnote omitted). As 

no other instruction covered the substance of this instruction, the only remaining question is 

whether the record supported the giving of the instruction.

We see no serious evidentiary dispute concerning Johnson’s state of mind when he 

shot Bell. The State presented two witnesses who testified they heard multiple shots fired. 

Bell was wounded eleven times – “three gunshot wounds to the head, one to the right

shoulder, four to the back, one to the right chest, one to the right buttock, and one to the left 

wrist.” (AV Recording 2, 8/7/13, 14:25:29 – 40). Johnson admitted shooting Bell twice at 

close range and continuing to shoot at Bell while running away. Therefore, it reasonably can 

be inferred Johnson knowingly fired his gun with the intent to hit Bell. See Sanders v. State, 

704 N.E.2d 119, 122-23 (Ind. 1999) (no serious evidentiary dispute regarding whether 

Sanders committed murder or reckless homicide when Sanders shot the victim at close 

range); cf. Young v. State, 699 N.E.2d 252, 256 (Ind. 1998) (serious evidentiary dispute 

regarding whether Young committed murder or reckless homicide when evidence suggested 

Young shot into a crowd of people and did not specifically aim at the victim). Accordingly, 

the trial court did not abuse its discretion when it declined to instruct the jury on reckless 

homicide because the evidence did not support such an instruction.

2. Appropriateness of Sentence

We may revise a sentence if it is inappropriate in light of the nature of the offense and 
6

the character of the offender. Williams v. State, 891 N.E. 2d 621, 633 (Ind. Ct. App. 2008) 

(citing Ind. Appellate Rule 7(B)). We consider not only the aggravators and mitigators found 

by the trial court, but also any other factors appearing in the record. Roney v. State, 872 

N.E.2d 192, 206 (Ind. Ct. App. 2007), trans. denied. The appellant bears the burden of 

demonstrating hissentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 

2006). The trial court sentenced Johnson to fifty-five years for murder and four years for 

Class C felony battery, to be served concurrently.

When considering the nature of the offense, the advisory sentence is the starting point 

to determine the appropriateness of a sentence. Anglemyer v. State, 868 N.E.2d 482, 494 

(Ind. 2007), clarified on reh’g 878 N.E.2d 218 (Ind. 2007). The advisory sentence for 

murder is fifty-five years, with a sentencing range from forty-five to sixty-five years. One 

factor we consider when determining the appropriateness of a deviation from the advisory 

sentence is whether there is anything more or less egregious about the offense committed by 

the defendant that makes it different from the “typical” offense accounted for by the 

legislature when it set the advisory sentence. Rich v. State, 890 N.E.2d 44, 54 (Ind. Ct. App. 

2008), trans. denied. 

Johnson received the advisory sentence of fifty-five years. He argues less than the 

advisory sentence is appropriate because he acted in self-defense. The evidence most 

favorable to Johnson’s conviction indicates Johnson shot Bell twice at close range, then 

retreated while firing additional shots, which hit Bell. The jury rejected Johnson’s assertion 

that he acted in self-defense, and we may not revisit its decision. 
7

When considering the character of the offender, one relevant fact is the defendant’s 

criminal history. Rutherford v. State, 866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The 

significance of criminal history varies based on the gravity, nature, and number of prior 

offenses in relation to the current offense. Id. While Johnson has only one prior conviction, 

he also had two Class D felony cases pending at the time of his trial for murder. Johnson’s 

criminal history is not so insignificant that, when coupled with the details of his offense, we 

could say the advisory sentence is inappropriate.

CONCLUSION

The trial court did not abuse its discretion when it denied Johnson’s request to have 

the jury instructed on reckless homicide because the evidence did not support such an 

instruction. Additionally, Johnson’s sentence was not inappropriate based on his character 

and the nature of the offense. Accordingly, we affirm.

Affirmed.

KIRSCH, J., and BRADFORD, J., concur.