Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020 Page 1 of 9

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

Thomas C. Allen

Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Antoine L. Kelley Jr.,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 2, 2020

Court of Appeals Case No.

19A-CR-2383

Appeal from the Allen Superior 

Court

The Honorable Frances C. Gull, 

Judge

Trial Court Cause No.

02D05-1904-MR-2

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020 Page 2 of 9

[1] Antoine L. Kelley Jr. appeals his conviction of murder.

1

 He raises two issues 

on appeal, which we revise and restate as: (1) whether the trial court abused its 

discretion when it refused to instruct the jury regarding the lesser-included 

offense of Level 5 felony reckless homicide,

2 and (2) whether the State 

presented sufficient evidence to support Kelley’s murder conviction. We affirm.

Facts and Procedural History

[2] In late March 2019, Christopher Ellis, Alfonso Rogers, Jacob Reed, and 

Darrius McMorris decided to travel from Chicago to Fort Wayne in order to 

visit Kelley and “to make some money[.]” (Tr. Vol. II at 158.) The five had 

grown up in the same neighborhood in Chicago and were childhood friends. 

On Sunday March 24, 2019, Kelley went to Chicago and drove the four others

to Fort Wayne. Kelley was in the process of moving houses at the time, so his 

four friends helped him move on Wednesday and Thursday. Starting on 

Thursday, Ellis noticed “there was something wrong with [Kelley].” (Id. at 

162.) Kelley acted “paranoid” and “nervous.” (Id. at 189.) Kelley paced the 

floor, and he said people were out to get him and the police were watching him. 

However, he did not elaborate when his friends asked him why he was anxious. 

1 Ind. Code § 35-42-1-1.

2 Ind. Code § 35-42-1-5.
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[3] On Sunday evening, March 31st, Kelley left his house to socialize with some of 

his friends from Fort Wayne, while his four friends from Chicago stayed at the 

house. They eventually fell asleep. Reed was the first of the four to wake on 

Monday, April 1, 2019. Reed was sitting in the kitchen when he noticed Kelley 

pacing back and forth. Ellis, Rogers, and McMorris were asleep in the nearby 

living room. Kelley stated that he needed McMorris to take him to the grocery 

store. Reed offered to take Kelley to the store, but Kelley insisted that 

McMorris take him. McMorris woke up and agreed to take Kelley to the store. 

McMorris said he first wanted to wash his face and brush his teeth. While 

McMorris was in the bathroom, Kelley walked to the bathroom door and fired 

multiple shots from a gun at McMorris. Kelley and McMorris did not say 

anything to each other before Kelley started shooting. One bullet struck 

McMorris in the back, and three other bullets hit him in the side. Ellis and

Rogers watched as Kelley then backed out of the house with his handgun 

pointed at them and ran away. Reed left the house when Kelley began firing. 

[4] After Kelley left the house, Ellis, Rogers, and Reed rushed to a nearby gas 

station. They called the police, and they decided to leave Fort Wayne because 

they were worried Kelley might also harm them. The three took a Greyhound 

bus back to Chicago. Officers obtained a search warrant to search the house 

and found McMorris dead at the scene. Kelley left Fort Wayne after the 

shooting and drove to Tennessee where his girlfriend resided. He disposed of 

his gun somewhere along the highway. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020 Page 4 of 9

[5] On April 10, 2019, the State charged Kelley with murder. The State also 

alleged that Kelley used a firearm in the commission of the offense, making him 

eligible for an additional penalty pursuant to Indiana Code section 35-50-2-11. 

Officers arrested Kelley in Tennessee and extradited him to Indiana. The court 

held a jury trial from August 13 to August 15, 2019. Kelley took the stand in 

his own defense at trial. He testified there were two guns inside the house at the 

time, and McMorris reached into his sweatshirt for something that Kelley 

believed was the second gun before Kelley shot McMorris. Kelley also testified 

that he had begun to suspect his friends were plotting to rob him because they 

would whisper amongst themselves and repeatedly asked him where he stored 

his money. Kelley asked the trial court to instruct the jury on the lesserincluded offense of reckless homicide. However, the trial court refused the 

proposed instruction on the ground that a serious evidentiary dispute did not 

exist. The jury returned a guilty verdict on the charge of murder and found 

beyond a reasonable doubt that Kelley used a firearm in the commission of the 

offense. The trial court sentenced Kelley to a term of sixty years in the Indiana 

Department of Correction with ten years added to the sentence because of the 

firearm enhancement, for an aggregate term of seventy years. 

Discussion and Decision

1. Reckless Homicide Instruction

[6] Kelley argues the trial court abused its discretion by not instructing the jury 

regarding the lesser-included offense of reckless homicide. We review a trial 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020 Page 5 of 9

court’s decision to give or deny a proposed jury instruction for an abuse of 

discretion. Dixson v. State, 22 N.E.3d 836, 839 (Ind. Ct. App. 2014), trans. 

denied. “A decision is an abuse of discretion when it is clearly against the logic 

and effect of the facts and circumstances.” Garner v. State, 59 N.E.3d 355, 358 

(Ind. Ct. App. 2016) (internal quotation marks omitted). When a party asks for 

the court to issue an instruction regarding a lesser included offense, the court 

evaluates the appropriateness of the instruction using a three-part test. Watts v. 

State, 885 N.E.2d 1228, 1231 (Ind. 2008). First, 

the court must compare the statute defining the crime charged 

and the statute defining the alleged lesser-included offense. If the 

alleged lesser-included offense may be established by proof of all 

of the same or proof of less than all of the same material elements 

to the crime, or if the only difference between the two statutes is 

that the alleged lesser-included offense requires proof of a lesser 

culpability, then the alleged lesser-included offense is inherently 

included in the crime charged.

Id. Second, if the court determines the proposed lesser-included offense is not 

inherently included in the charged crime, the court looks to the charging 

information to see if all the statutory elements of the proposed lesser-included 

offense are alleged in the charging information. Id. If either the first or second 

parts of the test are satisfied, then

the trial court must examine the evidence presented by each party 

and determine whether there is a serious evidentiary dispute over 

the element or elements that distinguish the crime charged and 

the lesser-included offense. If it would be possible for a jury to 

find that the lesser, but not the greater, offense had been 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020 Page 6 of 9

committed, then the trial court must instruct the jury on both 

offenses.

Id. at 1232 (emphasis in original).

[7] Indiana Code section 35-42-1-1 defines murder as “knowingly or intentionally 

[killing] another human being[.]” Indiana Code section 35-42-1-5 provides, “A 

person who recklessly kills another human being commits reckless homicide, a 

Level 5 felony.” The only difference between murder and reckless homicide is 

the level of culpability. Murder requires the perpetrator to act knowingly or 

intentionally, whereas reckless homicide requires only that the perpetrator act 

recklessly. Consequently, reckless homicide is an inherently lesser-included 

offense of murder. McDowell v. State, 102 N.E.3d 924, 931 (Ind. Ct. App. 2018), 

trans. denied. 

[8] It is reversible error for a trial court to not give an instruction on an inherently 

lesser-included offense if there is a serious evidentiary dispute regarding the 

perpetrator’s culpability. Higgins v. State, 783 N.E.2d 1180, 1187 (Ind. Ct. App. 

2003), trans. denied. However, a trial court should not give such an instruction if 

there is no serious evidentiary dispute. Id. Kelley argues some evidence 

supported the theory that he acted recklessly rather than knowingly or 

intentionally because Kelley should have verified McMorris had a gun before 

Kelley shot McMorris. Kelley also contends McMorris’ large physical size,

combined with Kelley’s fear that his friends were plotting to rob him, made him

“suspicious and hypervigilant.” (Appellant’s Br. at 18.) 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2383 | July 2, 2020 Page 7 of 9

[9] A defendant who fires a gun at another person at close range cannot do so 

without knowing his action is “highly probable to result in death.” Sanders v. 

State, 704 N.E.2d 119, 122-23 (Ind. 1999). It is not disputed that Kelley shot 

McMorris four times, at close range, and in an enclosed space. The question 

presented to the jury was not whether Kelley intentionally fired his gun at 

McMorris, but whether Kelley did so in self-defense. Therefore, the trial court 

did not abuse its discretion in refusing Kelley’s proposed jury instruction. See 

Johnson v. State, 986 N.E.2d 852, 856 (Ind. Ct. App. 2013) (holding trial court 

did not abuse discretion in refusing proposed jury instruction on a lesser 

included offense of reckless homicide because there was not a serious 

evidentiary dispute about mens rea). 

2. Sufficiency of the Evidence

[10] Kelley also asserts the State did not present sufficient evidence to rebut his selfdefense claim. As our Indiana Supreme Court has explained:

The standard of review for a challenge to the sufficiency of 

evidence to rebut a claim of self-defense is the same as the 

standard for any sufficiency of the evidence claim. We neither 

reweigh the evidence nor judge the credibility of witnesses. If 

there is sufficient evidence of probative value to support the 

conclusion of the trier of fact, then the verdict will not be 

disturbed.

Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002).
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[11] A valid claim of self-defense is a legal justification for an otherwise criminal act. 

Id. at 800. Indiana Code section 35-41-3-2 (2013)3 states that “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.” 

“To prevail on a claim of self-defense, the defendant must show that he: (1) was 

in a place where he had a right to be; (2) did not provoke, instigate, or 

participate willingly in the violence; and (3) had a reasonable fear of death or 

great bodily harm.” Quinn v. State, 126 N.E.3d 924, 927 (Ind. Ct. App. 2019). 

If a defendant asserts a claim of self-defense, then the State bears the burden of 

negating at least one of the necessary elements. Id. The jury is tasked with 

deciding whether the State met its burden. Id. 

[12] The State presented evidence that Kelley instigated the violence and did not 

reasonably fear for his life. Ellis, Rogers, and Reed testified that they did not 

observe any argument or altercation between Kelley and McMorris before 

Kelley started firing. Kelley fired his weapon multiple times and shot

McMorris in the back. See Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 

2007) (“Firing multiple shots undercuts a claim of self-defense.”), trans. denied.

[13] Further, it stands to reason that if Kelley truly believed his friends were trying

to rob him, he would have reported the shooting to the police. However, he did 

3 This statute was amended effective April 26, 2019. However, the amended language is immaterial to the 

case at bar.
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not do so. He left Indiana and disposed of his gun. See Wilcoxson v. State, 132 

N.E.3d 27, 31 (Ind. Ct. App. 2019) (noting “an attempt to avoid arrest is 

evidence of a guilty conscience”), trans. denied. Therefore, the State presented 

sufficient evidence for a reasonable juror to conclude Kelley did not act in selfdefense. See Quinn, 126 N.E.3d at 927 (holding State presented sufficient 

evidence to negate self-defense claim).

Conclusion

[14] The trial court did not abuse its discretion in refusing to instruct the jury 

regarding the lesser included offense of reckless homicide because there was no 

serious evidentiary dispute regarding Kelley’s level of culpability. Further, the 

State presented sufficient evidence to negate Kelley’s self-defense claim. 

Therefore, we affirm Kelley’s conviction of murder.

[15] Affirmed.

Robb, J., and Vaidik, J., concur.