MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Feb 19 2015, 9:16 am
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                                   ATTORNEYS FOR APPELLEE
William Byer, Jr.                                        Gregory F. Zoeller
Byer & Byer                                              Attorney General of Indiana
Anderson, Indiana
                                                         Ryan D. Johanningsmeier
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Malcom Cobb, Jr.,                                        February 19, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         48A02-1404-CR-228
        v.                                               Appeal from the
                                                         Madison Circuit Court
State of Indiana,                                        The Honorable David A. Happe,
                                                         Judge
Appellee-Plaintiff.
                                                         48C04-1302-MR-249




Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 1 of 23
[1]   Following a jury trial, Malcom Cobb, Jr. (“Cobb”) appeals his convictions for

      murder,1 a felony, and robbery2 as a Class B felony. He raises three issues that

      we restate as:

                 I. Whether the trial court committed reversible error when it excluded
                 certain police officer testimony as being hearsay;
                 II. Whether the trial court committed reversible error when it declined
                 to give three of Cobb’s proposed final jury instructions; and
                 III. Whether the evidence was sufficient to convict Cobb.


[2]   We affirm.


                                       Facts and Procedural History
[3]   The facts most favorable to the verdict are that, in January 2013, Cobb was

      living with his parents in a duplex, located between Anderson and Lapel,

      Indiana. The victim in this case, Spencer Smith (“Smith”), resided next door,

      in the other half of the duplex. Cobb first met Smith in mid-2012, when Smith

      moved in. At that time, Cobb was forty-five years old; Smith was almost

      twenty-two years old. In the first weeks, they “shot the crap and carried on,

      had a few cocktails together.” Tr. at 627. According to Cobb, their friendly

      relationship declined, and they saw each other mostly in passing at the duplex.


[4]   On the evening of January 28, 2013, Cobb and his younger cousins, Joshua



      1
          See Ind. Code § 35-42-1-1.
      2
        See Ind. Code § 35-42-5-1. We note that, effective July 1, 2014, new versions of the murder and robbery
      statutes were enacted, but because Cobb committed his crimes in 2013, we will apply the applicable statutes
      in effect at that time.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015          Page 2 of 23
      Wood (“Joshua”) and Jonathan Wood3 (“Jonathan”), were “hanging out” in

      Cobb’s garage, and Smith came by, “looking for some drugs.” Id. at 323, 634.

      Cobb gave him a couple of “nerve pills” and sent him home. Id. at 634. Smith

      came back a couple more times and invited the men over to his home, and

      Cobb responded with “maybe later on.” Id. at 636.


[5]   Later that night, Cobb, Joshua, and Jonathan went over to Smith’s residence.

      The group sat in the living room, “[c]hit-chattin’ back and forth” and drinking

      vodka. Id. at 361. At some point, Cobb began accusing Smith of having raped

      a woman, based on comments that Smith had made to Cobb in the past. Smith

      denied the accusation, and Cobb held a knife to Smith’s throat. Joshua heard

      Cobb threaten to kill Smith and saw Smith “crying and shaking” on the couch.

      Id. at 227.


[6]   Joshua stepped outside and called the woman at the center of the argument and

      directly asked her if Smith had raped her, and she said he had not. Joshua

      came back into the living room with the phone and handed it to Cobb, so he

      could speak with her, at which time Cobb jammed the knife into the wooden

      table and took the phone. The woman told Cobb that Smith had not raped her.

      At some point after the phone call, Cobb went back and grabbed the knife and

      again put the knife to Smith’s neck. Cobb then went to Joshua and held the

      knife to his throat, saying, “if you say anything, I’m gonna kill you and your

      whole family.” Id. at 229-30, 328.


      3
          Joshua and Jonathan are brothers.




      Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 3 of 23
[7]   While Cobb had the knife at Joshua’s throat, Smith got up and walked to his

      bedroom. Cobb released Joshua, who went outside, and Cobb followed Smith

      to the bedroom. From the hallway, Jonathan saw Cobb holding Smith down

      toward the floor next to an unopened black safe, and Cobb was pointing a

      handgun to his back. Joshua came back inside, and he too saw Cobb and

      Smith on the ground in front of the safe, and Cobb was yelling at Smith to

      hurry up and open it.


[8]   When Smith did not open the safe quickly enough, Jonathan saw Cobb shoot

      Smith in the back of his shoulder. Smith turned around, and Cobb “just

      unloaded on him” with more shots. Id. at 334. Joshua, who was back outside

      at this point, heard at least two gunshots. He came inside and found Smith

      lying on the bed, back against a wall. At this point, it was around midnight,

      and Cobb called his former stepdaughter, Jennifer Kelley (“Kelley”), and asked

      her to call a cab and send it to his location. Cobb told Joshua and Jonathan to

      grab guns from Smith’s apartment. When the taxi arrived, Joshua carried out a

      shotgun, wrapped in a coat, and Jonathan carried a silver handgun that

      belonged to Smith. Cobb put the safe into a box and carried it out, putting it in

      the trunk of the cab. The men went to Kelley’s residence, bringing with them,

      two handguns, a shotgun, ammunition, knives, a safe, and some jewelry.

      When they were unable to open the safe, Kelley asked her neighbor to bring

      over a crowbar, and eventually Cobb and Jonathan opened the safe, which

      contained mostly empty pill bottles, coins, and trash. Kelley thought the men

      seemed “disappointed” and “frustrated” by the safe’s contents. Id. at 396, 444,




      Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 4 of 23
       462. Kelley and two of her friends who were also present at the apartment

       heard Cobb talking about having shot someone.


[9]    While at Kelley’s house, Cobb began discussing a self-defense strategy. He

       asked Jonathan to shoot him in the shoulder so that he could say that Smith did

       it, but Jonathan refused, and then Cobb cut his own clothing with a knife. At

       some point, Joshua contacted his parents, and they picked up the three men

       from a vacant lot in Anderson at about 2:15 a.m. Cobb told Timothy Wood

       (“Timothy”), father of Joshua and Jonathan, that he had killed a man and

       wanted to turn himself in at the Anderson police station, but Timothy stated

       that the duplex where the shooting occurred was out of Anderson’s jurisdiction,

       so Timothy returned the three men to the scene, and Cobb called police from

       there. The men left behind at Kelley’s house the shotgun, knives, and the safe,

       all of which Kelley hid in her residence, but police later recovered from her.


[10]   When officers arrived at the scene, they encountered Cobb outside, on his cell

       phone, with Smith’s black handgun, ammunition, and knife. Earlier, Timothy

       had taken from Jonathan’s possession another handgun and ammunition,

       which Timothy gave to police approximately five hours after their arrival at the

       scene. Deputy Tim Basey of the Madison County Sheriff’s Department found

       Smith deceased and lying on the bed, partially propped up against the wall. An

       autopsy revealed that Smith had been shot four times, suffering wounds to each

       shoulder, his chest, and his face.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 5 of 23
[11]   The State charged Cobb with murder and Class B felony robbery.4 At Cobb’s

       jury trial, the State called twenty-six witnesses, including various law

       enforcement officers, Joshua, Jonathan, the taxi driver, Kelley, and Timothy.

       Cobb testified in his case-in-chief, as did his parents.


[12]   During trial, Deputy Basey testified that at 3:16 a.m. on January 29, 2013, he

       received and responded to a radio dispatch of a reported shooting. Upon

       arriving at the duplex, where Cobb and Smith resided, he secured the scene and

       entered the residence. He located Smith, who appeared lifeless, on the bed with

       his back against a wall.


[13]   Officer Ryan Daniels of the Lapel Police Department (“LPD”) testified that, on

       January 29, 2013, he responded to a dispatch call on a report of a shooting.

       When he and LPD Officer Jonathan Hosier arrived, they observed Cobb

       leaning on a pick-up truck, and also present at the scene were members of the

       Wood family, who he knew lived “a couple of units down” from the Cobb

       residence. Tr. at 120. After Officer Hosier handcuffed Cobb, Officer Daniels

       walked Cobb to the patrol car and placed him inside the vehicle. At trial, there

       was a line of questioning that occurred during direct examination, cross, re-

       direct, and re-cross of Officer Daniels, which inquired about what Cobb had

       said to Officer Daniels during the time that he was taking Cobb to the patrol car

       and as he was placing him in the car. On re-cross, Officer Daniels confirmed




       4
        The State also charged Joshua and Jonathan with murder and robbery. They were transported from the
       Madison County Jail in order to testify at Cobb’s trial.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015     Page 6 of 23
       that Cobb had provided “his version of events” to Officer Daniels, at which

       time Cobb’s counsel inquired, “What did he tell you?” Id. at 125. The State

       then interposed a hearsay objection. Counsel for both parties presented

       argument to the trial court, out of the jury’s presence. The trial court ultimately

       sustained the State’s hearsay objection, finding that during re-direct

       examination the State was attempting to elicit a specific statement made by

       Cobb while getting into the vehicle, and that the State did not open the door to

       everything that was said by Cobb at the scene that night. Id. at 132. Cobb

       thereafter made an offer of proof and asked Officer Daniels some follow-up

       questions regarding what Cobb said “as he was getting in the vehicle,” to which

       Officer Daniels responded that he could not recall. Id. 132-135, 138.


[14]   Later in the trial, Cobb testified, providing the jury with his explanation of how

       events unfolded on the night in question. According to Cobb, Smith came over

       to Cobb’s residence several times on the evening of January 28, 2013, asking

       Cobb for drugs. Cobb told Smith to go home each time, and Cobb eventually

       went over to Smith’s residence to get him to “mellow out,” so that Smith would

       stop bothering Cobb and his parents. Id. at 637. Cobb accused Smith of having

       raped a woman, based on comments that Smith made to Cobb on a prior

       occasion, and the two men argued. Cobb described that Smith swung a knife at

       him, but missed, and Cobb thereafter successfully took the knife from Smith’s

       possession. Cobb followed Smith into his bedroom and encountered Smith

       coming from his closet with a gun. Cobb tried to get the gun from Smith, and a

       struggle ensued, during which the gun fired and hit Smith’s shoulder. Cobb




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 7 of 23
       testified that the struggle continued and that the gun fired two more times. At

       some point, Jonathan got possession of the gun, and when Cobb asked

       Jonathan to hand the gun back to him, Jonathan shot Smith in the face and

       then laughed. Cobb reported that Joshua and Jonathan wanted “souvenirs”

       and gathered up a handgun, two knives, and a shotgun. Id. at 651-52. Cobb

       testified that he picked up the safe and removed it from Smith’s residence,

       placing it in the trunk of the taxi. Cobb denied that he asked Jonathan, or

       anyone, to shoot him in order to make it appear that he shot Smith in self-

       defense, as was reported in prior testimony, although Cobb conceded that he

       cut his own shirt while at Kelley’s. Cobb said that, at Kelley’s, he hit the safe

       with a hammer and eventually opened it, but “didn’t care” what was in it and

       “didn’t even look in it.” Id. at 659-60.


[15]   Following the presentation of evidence, the parties submitted proposed final

       jury instructions to the trial court. The State objected to Cobb’s proposed final

       instructions (“Proposed Instructions”) numbers 1, 2, and 3, all of which

       involved self-defense. The trial court determined that Proposed Instruction

       Nos. 1, 2, and 3 were not correct statements of the law and/or would be

       confusing and misleading to the jury and refused them.


[16]   The jury returned a verdict of guilty on both of the charged offenses, murder

       and Class B felony robbery. The trial court conducted a subsequent sentencing

       hearing, and it sentenced Cobb to sixty-five years for murder and twenty years

       for the robbery conviction, ordering that the sentences be served consecutive to




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 8 of 23
       each other as well as consecutive to another Madison Circuit Court cause

       number. Cobb now appeals. Additional facts will be supplied as necessary.


                                      Discussion and Decision

                                        I. Excluded Evidence
[17]   Cobb asserts that the trial court committed reversible error when it sustained the

       State’s hearsay objection during Officer Daniels’s testimony about what Cobb

       had said to him at the scene. The decision to admit or exclude evidence is a

       matter within the sound discretion of the trial court. Swann v. State, 789 N.E.2d

       1020, 1023 (Ind. Ct. App. 2003), trans. denied. An abuse of discretion occurs

       only if a trial court’s ruling is clearly against the logic and effect of the facts and

       circumstances before it. Id. We afford the decision to exclude evidence great

       deference on appeal and reverse only when a manifest abuse of discretion

       denies the defendant a fair trial. Id. at 1023-24. We will not reverse a decision

       to admit or exclude evidence if that decision is sustainable on any ground.

       Carpenter v. State, 15 N.E.3d 1075, 1078 (Ind. Ct. App. 2014), trans. denied.


[18]   On direct examination, Officer Daniels testified that Officer Hosier handcuffed

       Cobb and passed custody of Cobb to Officer Daniels, who walked with Cobb to

       the patrol car and placed him inside it. Thereafter, on cross-examination,

       Cobb’s counsel asked Officer Daniels to confirm that he “took [Cobb] to the

       vehicle,” and Officer Daniels responded in the affirmative. Tr. at 123. Cobb’s

       counsel followed up with, “Did you have a conversation with him during that

       time period?” and the officer responded, “He did make a statement during that




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 9 of 23
time period.” Id. at 124 (emphasis added). Cobb’s inquiry about “that time

period” thus referred to the period when Officer Daniels “took [Cobb] to the

vehicle.” Id. Next, during the State’s re-direct examination of Officer Daniels,

the prosecutor asked:

         Q: Officer, when you were placing the defendant in your vehicle, um, you
         said that the defendant made a statement at that time?
         A: That is correct.
         Q: What . . . what did he say to you?
         A: He reported to me that he was in his apartment where he resides
         and received a telephone call from [Smith].
         Q: [D]id the defendant say anything to you about needing assistance
         to get in the vehicle?
         A: I can not [sic] recall.
Id. at 124-25 (emphasis added).5 Immediately thereafter, counsel for Cobb, now

on re-cross, asked Officer Daniels,

         Q: Officer, did Mr. Cobb tell you the story of what happened that
         night?
         A: Yes, he did.
         Q: His version of what happened?
         A: Yes, he did.
         Q: What did he tell you?
Id. at 125. At this point, the State promptly objected on hearsay grounds.




5
  We note that during Cobb’s testimony, later in trial, he stated that he required assistance when getting into
the police car because of recent surgery on his leg. Tr. at 665.




Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015            Page 10 of 23
[19]   Out of the jury’s presence, counsel for both parties presented argument to the

       trial court. Cobb’s counsel maintained that when Officer Daniels stated that

       Cobb had said he received a telephone call from Smith, the State thereby

       opened the door to additional testimony about what else Cobb had told officers,

       namely, his version of events. The prosecutor countered that the State had

       asked on re-direct examination only about what statement Cobb had made

       while being placed in the vehicle, and that did not open the door to testimony

       about other statements that Cobb may have made to officers that night while

       walking through the yard to the patrol car or while in the car. The trial court

       closed the record in order to listen and review the questions posed to Officer

       Daniels and his answers. Thereafter, the trial court determined that the State’s

       question to Officer Daniels was directed to a very specific time frame, namely

       when Officer Daniels was placing Cobb in the vehicle, and Officer Daniels’s

       response – about Cobb getting a call from Smith – was nonresponsive to that, as

       it went to statements made beyond that time frame. The trial court noted that it

       “would’ve been appropriate . . . for [the prosecutor] to make a nonresponsive

       objection and get the witness back on track to what was being asked[.]” Id. at

       132. Ultimately, the trial court sustained the objection and ruled that the door

       had not been opened to Cobb’s description of all the events of the evening

       coming into evidence at that point. Id.


[20]   Cobb thereafter made an offer of proof by asking Officer Daniels some follow-

       up questions regarding what Cobb said as Officer Daniels was walking him to

       the patrol car and as he was placing him in the vehicle. Officer Daniels stated




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 11 of 23
       that Cobb began talking about the night’s events during the minute or so that

       they were walking to the car. Id. 133-35. Cobb’s counsel then asked, “But once

       you were placing him in the vehicle, he didn’t give any other statements in

       regards to the events that occurred?” and Officer Daniels replied, “I can not

       [sic] recall whether he was or not.” Id. at 135.


[21]   We find that the trial court properly sustained the State’s hearsay objection.

       First, we note that Cobb’s offer of proof established only that Officer Daniels

       could not remember what Cobb was saying at the particular time when Cobb

       was being placed in the patrol car, and thus the offer of proof did not reveal any

       statements by Cobb that should have been admitted. Id. 132-35. Second, even

       assuming without deciding that the State opened the door to other statements

       made by Cobb before and/or after he was placed in the car, Cobb’s question on

       re-cross that asked the officer “What did he tell you?” was an attempt to elicit

       his version of events as he told them to the arresting officer or officers at the

       scene. This testimony would have been hearsay because it was Cobb’s out-of-

       court statement being offered by him as a prior consistent statement, not offered

       against him, and it was not subject to any hearsay exception. See Ind. Evid.

       Rule 801(d)(2) (to be non-hearsay, opposing party’s out-of-court statement must

       be offered against that party). Furthermore, even if the trial court erred by

       sustaining the State’s hearsay objection, any error in the exclusion of evidence

       is not grounds for reversal unless it is inconsistent with substantial justice and

       affects the substantial rights of the parties. Ind. Trial Rule 61; Miles v. State, 777

       N.E.2d 767, 772 (Ind. Ct. App. 2002). Cobb argues that his statements to




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 12 of 23
       Officer Daniels, if admitted, would have had “a substantial likelihood to

       contribute to Cobb not being convicted.” Reply Br. at 3. Given the record

       before us, we disagree.


[22]   At trial, Cobb testified and related to the jury his version of the night’s events,

       including his assertion that Smith swung a knife at him, and thereafter, Smith

       obtained a gun from his closet and the two struggled, resulting in the accidental

       gunshots to Smith. Thus, even though the trial court did not permit Officer

       Daniels to testify as to what Cobb had told him about how the shooting

       occurred, Cobb told the jury how it happened. Moreover, even if the desired

       testimony – Cobb’s version of events as recited to Officer Daniels – had been

       permitted into evidence, there was substantial evidence to support Cobb’s

       convictions. Joshua and Jonathan testified that Cobb held a knife to Smith’s

       throat twice. Jonathan witnessed Cobb shoot Smith in the back of his shoulder

       as he hurried to open his safe and then “unload[]” more shots at Smith. Tr. at

       334-35. Jonathan testified that Cobb shot Smith because he did not open the

       safe quickly enough. By all accounts, the men removed the guns, knives, and

       safe from Smith’s residence and took the items to Kelley’s residence. Cobb

       removed the safe and put it in the trunk of the taxi. Cobb and Jonathan opened

       the safe. Cobb called 911 from scene to report the shooting, and he was in

       possession of Smith’s handgun at the time police arrived. We are satisfied that

       the exclusion of Cobb’s statements to Officer Daniels did not affect the jury’s

       verdict, and we find no reversible error with the trial court’s evidentiary ruling.

       See Johnson v. State, 747 N.E.2d 623, 629 (Ind. Ct. App. 2001) (any error in




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 13 of 23
       exclusion of defendant’s proffered 911 tapes was harmless where there was

       substantial independent evidence to support convictions).


                                            II.      Instructions
[23]   Cobb claims that the trial court erred when, after conducting a hearing, it

       refused three of his proposed final jury instructions, all of which concerned self-

       defense. Instructing the jury lies solely within the discretion of the trial court,

       and we review the trial court’s refusal to give a tendered instruction for an abuse

       of that discretion. Schmid v. State, 804 N.E.2d 174, 182 (Ind. Ct. App. 2004),

       trans. denied; McCarthy v. State, 751 N.E.2d 753, 755 (Ind. Ct. App. 2001), trans.

       denied. Jury instructions are to be considered as a whole, and we will not find

       that the trial court abused its discretion unless we determine that the

       instructions taken as a whole misstate the law or otherwise mislead the jury.

       Henderson v. State, 795 N.E.2d 473, 477 (Ind. Ct. App. 2003), trans. denied.

       Instructional errors are harmless where a conviction is clearly sustained by the

       evidence, and the instruction would not likely have impacted the jury’s verdict.

       Randolph v. State, 802 N.E.2d 1008, 1013 (Ind. Ct. App. 2004), trans. denied.

       That is, before a defendant is entitled to a reversal, he must affirmatively

       demonstrate that the instructional error prejudiced his substantial rights.

       Schmid, 804 N.E.2d at 182.


[24]   In determining whether the trial court properly refused a tendered instruction,

       we consider three factors: (1) whether the tendered instruction correctly stated

       the law; (2) whether there was evidence in the record to support the giving of




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 14 of 23
       the instruction; and (3) whether the substance of the tendered instruction was

       covered by other instructions. Id. Here, the trial court instructed the jury

       regarding self-defense as follows:

               It is an issue whether the defendant acted in self-defense. A person
               may use reasonable force against another person to protect himself
               from what the defendant reasonably believes to be the imminent use of
               unlawful force. A person is justified in using deadly force, and does
               not have a duty to retreat, only if he reasonably believes that deadly
               force is necessary to prevent serious bodily injury to himself or a third
               person. However, a person may not use force if he is committing a
               crime that is directly and immediately connected to the confrontation
               that leads to the use of force, he provokes a fight with another person
               with intent to cause bodily injury to that person, or he is [sic] willingly
               entered into a fight with another person or started the fight, unless he
               withdraws from the fight and communicates to the other person his
               intent to withdraw, and the other person nevertheless continues or
               threatens to continue to fight. The State has the burden of proving
               beyond a reasonable doubt that the defendant did not act in self-
               defense. An individual has a right to act upon appearances of actual
               and immediate danger if he sincerely believes such apparent danger
               exists. It need only be apparent to a reasonable person under the
               circumstances.
       Tr. at 831-32. The trial court provided its proposed final instructions, including

       the above regarding self-defense, to counsel to review, and neither party

       objected. Id. at 770. Cobb challenges the trial court’s refusal to give three of his

       tendered instructions, and we address each in turn.


[25]   Proposed Instruction No. 1 read as follows:

               A valid claim of self-defense provides a legal justification for a person
               to use force against another person to protect themselves from the
               imminent use of unlawful force. A claim of self defense requires that
               the person acted without fault, was in a place the person had a right to
               be, and was in reasonable fear of bodily harm. The force utilized must




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 15 of 23
               be reasonable under the circumstances. Milam v. State, 719 N.E.2d
               1208 (Ind. 1999).
       Appellant’s App. at 157. The State objected to Proposed Instruction No. 1,

       arguing that it was not a correct statement of the law and was covered by the

       trial court’s final instruction on self-defense. Defense counsel replied that

       “reasonable fear of bodily harm” was at issue in the case, but it was not

       specifically included in the trial court’s final instruction. Tr. at 771-72. The

       trial court rejected that argument, finding that the trial court’s self-defense

       instruction recognized that a person “may use reasonable force from what he

       reasonably believes to be the imminent use of unlawful force” and that Cobb’s

       Proposed Instruction No. 1 was adequately covered by the trial court’s final

       instruction. Id. at 772.


[26]   On appeal, Cobb appears to argue that the trial court’s instruction “did not

       properly address required language as to self-defense,” namely that a claim of

       self-defense requires that the defendant, among other things, be in a place that

       he or she had a right to be; Cobb argues that he was in a place that he had a

       right to be, at Smith’s house, and that the trial court’s final instruction did not

       address that aspect. Appellant’s Br. at 15. Cobb did not raise this argument to

       the trial court, and, thus, he has waived it for appeal. See Kane v. State, 976

       N.E.2d 1228, 1231 (Ind. 2012) (party wishing to preserve instructional error on

       appeal must identify specific grounds for objection at trial, citing Ind. Crim.

       Rule 8(B) and Ind. Trial Rule 51(C)). Waiver notwithstanding, Cobb has failed

       to explain how he was harmed by the exclusion of that language in the

       instruction or demonstrate that the alleged instructional error of failing to




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 16 of 23
       include the challenged language prejudiced his substantial rights. We find no

       error with the trial court’s rejection of Proposed Instruction No. 1.


[27]   Proposed Instruction No. 2 stated as follows:

               Your decision as to whether the accused was acting in self-defense
               must be based on what the situation appeared to be to the accused
               rather than what the actual facts might have been. Shaw v. State, 534
               N.E.2d 735 (Ind. 1989). French v. State, 403 N.E.2d 821 (Ind. 1980).
       Appellant’s App. at 158. The State objected to Proposed Instruction No. 2 and

       said, “I’m not even sure what that means.” Tr. at 772-73. Defense counsel

       explained that the focus and purpose of the instruction was to instruct the jury

       about actual danger versus apparent danger from the defendant’s perspective,

       and he argued that, during trial, Cobb presented testimony about his fear and

       belief of the danger and that the jury should determine whether his subjective

       belief was reasonable. The trial court determined that Cobb’s Proposed

       Instruction No. 2 misstated the law because “self-defense is judged from . . . a

       reasonable person in the defendant’s shoes,” and that Proposed Instruction No.

       2 focused only on what the situation appeared to be to be from the accused’s

       perspective. Id. at 774. The trial court determined that Proposed Instruction

       No. 2 was misleading because it did not include the objective reasonable-person

       standard and would confuse the jury, and it declined the requested instruction.


[28]   Similar to Proposed Instruction No. 2, Proposed Instruction No. 3 also

       addressed the concept of apparent versus actual danger. It read:

               With regard to the defense of self-defense, the existence of the danger,
               the necessity or apparent necessity of using force, as well as the




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 17 of 23
        amount of force required can only be determined form the standpoint
        of the accused at the time and under the then existing circumstances.
        A person’s belief of apparent danger does not require the danger to be
        actual, but only that the belief be in good faith. Shepard v. State, 451
        N.E. 2d 1118, 1120-1123 (Ind. Ct. App. 1983). French v. State, 403
        N.E.2d 821, 825 (Ind. 1980). Franklin v. State, 364 N.E2d 1019, 1021
        (Ind. 1977).
Appellant’s App. at 159. The State objected on the same grounds as made in

opposition to Proposed Instruction No. 2, that the instruction failed to address

the objective standard of a reasonable person, and thus it misstated the law and

was confusing. The trial court agreed and refused the instruction. However,

although the trial court refused Proposed Instructions 2 and 3, it expressly

acknowledged that the concept of apparent danger was not included in the trial

court’s final instruction and that Cobb had a right to an instruction on that

aspect of self-defense. To this end, the trial court gave Cobb’s Proposed

Instruction No. 4, as modified by Cobb, and it read:

        An individual has a right to act upon appearances of actual and
        immediate danger if he sincerely believes such apparent danger exists.
        It need only be apparent to a reasonable person under the
        circumstances.
Appellant’s App. at 160. On appeal, Cobb argues that the final instructions given

to the jury “are void of the necessary language that the existence of the danger

should be determined from the standpoint of the Defendant as opposed to only

that of a reasonable person.” Appellant’s Br. at 19. We reject this claim. The

instructions did not instruct the jury to only consider a reasonable person’s

viewpoint; the instructions stated that the defendant’s personal belief was to be

considered in its analysis. Tr. at 832 (person has right to act upon danger “if he




Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 18 of 23
       sincerely believes” such apparent danger exists). The instructions taken as a

       whole do not misstate the law or otherwise mislead the jury, and Cobb has

       failed to establish that his substantial rights were prejudiced by the manner in

       which the jury was instructed.


                                III. Sufficiency of the Evidence
[29]   Cobb argues that the evidence was insufficient to convict him of robbery and

       murder, and he claims that the State failed to present sufficient evidence to

       rebut his claim of self-defense. Under Indiana Code section 35-41-3-2(a), a

       person is justified in using reasonable force against another person to protect the

       person or a third person from what the person reasonably believes to be the

       imminent use of unlawful force. When a claim of self-defense is raised and is

       supported by evidence, the State has the burden of negating at least one of the

       necessary elements. Pinkston v. State, 821 N.E.2d 830, 842 (Ind. Ct. App. 2004),

       trans. denied. The State may satisfy its burden by either rebutting the defense

       directly or relying on the sufficiency of evidence in its case-in-chief. Id.


[30]   We review a challenge to the sufficiency of the evidence to rebut a claim of self-

       defense using the same standard as for any claim of insufficient evidence. Id. at

       841. In reviewing a sufficiency of the evidence claim, we do not reweigh the

       evidence or judge the credibility of the witnesses. Id. If there exists sufficient

       evidence of probative evidence from which a reasonable trier of fact could have

       found the defendant guilty beyond a reasonable doubt, then we will not disturb

       the verdict. Id. at 841-42.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 19 of 23
[31]   As a threshold matter, we observe that our Supreme Court has held that if there

       is sufficient evidence that a defendant committed robbery, i.e. taking the

       property of another by force or threat of force, a claim of self-defense is not

       available as an affirmative defense to that crime of robbery. See Rouster v. State,

       705 N.E.2d 999, 1006 (Ind. 1999) (defendant barred from asserting self-defense

       when jury found that he was engaged in robbery at the time of killings), cert.

       denied, 538 U.S. 1002 (2003); Gage v. State, 505 N.E.2d 430, 434 (Ind. 1987).

       That is, “[b]y its very nature, robbery is a crime that precludes the use of self-

       defense if the killing occurs during the commission of a robbery.” Henderson,

       795 N.E.2d at 481.


[32]   To convict Cobb of Class B felony robbery as charged, the State was required to

       show that Cobb, while armed with a deadly weapon, namely a handgun,

       knowingly took Smith’s safe by threatening the use of force. Ind. Code § 35-42-

       5-1(1); Appellant’s App. at 155. Here, the evidence most favorable to the verdict

       is that Cobb came to Smith’s residence, perhaps at Smith’s invitation, and Cobb

       began accusing Smith of having raped a woman. Cobb continued arguing

       about it even after the woman told Cobb it did not happen and after Joshua told

       him to quit accusing Smith. Cobb held a knife to Smith’s throat more than

       once. Then Cobb held Smith at gunpoint and ordered him to hurriedly open a

       safe, and when Smith failed to do so, Cobb shot him. There is no evidence that

       Smith was armed or resisting. After Cobb shot Smith in the back of the

       shoulder, Cobb shot Smith several more times and killed him. Cobb and his

       cousins gathered up Smith’s guns, ammunition, knives, and the safe. Cobb




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 20 of 23
       carried the safe from Smith’s residence, placed it in the cab’s trunk, and later

       pried it open with a crowbar and a hammer. We find that the State presented

       sufficient evidence to convict Cobb of robbery as charged. Accordingly, we

       reject his claim of self-defense and affirm his robbery conviction. See Gage v.

       State, 505 N.E.2d 430, 434 (Ind. 1987) (where jury’s robbery conviction is

       supported by sufficient evidence, defendant’s claim that State did not negate

       self-defense fails).


[33]   Turning to Cobb’s murder conviction, to convict Cobb of murder, the State was

       required to prove that Cobb knowingly or intentionally killed Smith. Ind. Code

       § 35-42-1-1(a); Appellant’s App. at 155. At trial, Cobb claimed that the killing

       was in self-defense, and in order to establish this, Cobb was required to 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. Pinkston, 821 N.E.2d at 842. Here, the State

       presented evidence that Jonathan and Joshua saw Cobb hold a knife to Smith’s

       throat, and they testified that Cobb also held the knife to Joshua’s throat and

       threatened to kill him and his family. They did not see Smith swing a knife at

       Cobb, as Cobb alleged. They saw Cobb follow Smith to his bedroom, and they

       saw him holding Smith down to the ground while pointing a handgun at his

       back, ordering Smith to hurry and open the safe. Jonathan saw Cobb shoot

       Smith in the back of the shoulder and saw Cobb fire more shots as Smith tried

       to stand up. Rather than immediately calling police, Cobb called Kelley and

       directed her to have a taxi sent for him and the other two men. When Cobb




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 21 of 23
and the other men left the scene, they took guns, ammunition, knives, and the

safe. While at Kelley’s residence, she and two of her friends stated that Cobb

and Jonathan were laughing about having killed someone, and they also

testified that the men were disappointed that the safe contained nothing of

value. Cobb was heard saying that he “killed a man for nothing.” Tr. at 462,

470, 472. Cobb and Jonathan worked on assembling a self-defense strategy,

and Cobb even asked Jonathan to shoot him in order to make it appear as

though Smith had injured him, but Jonathan refused. Cobb then cut and tore

his shirt with a knife to make it appear Smith had done so. When the group left

Kelley’s residence, they left behind the shotgun, safe, and knives, which Kelley

hid. When Cobb eventually called police, several hours later, he told the police

that the shooting had just happened twenty to thirty minutes prior, and he

failed to tell them that he went to Kelley’s in Anderson. Jonathan testified that

Smith never threatened Cobb, although he initially told the police otherwise

pursuant to the group’s self-defense story. Jonathan conceded that he told

police “multiple stories.” Id. at 353, 374. The jury heard Cobb’s account

describing how the night’s events unfolded, and after hearing all of the evidence

and observing the witnesses and judging their credibility, it rejected it. The

State presented sufficient evidence from which the jury could find that Cobb

provoked, and willingly participated, in the violence and that Cobb was not

acting in fear of death or great bodily harm when he shot Smith multiple times,

and it thereby rebutted Cobb’s claim of self-defense.




Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 22 of 23
[34]   While Cobb’s brief generally asserted that the evidence was insufficient to

       support his robbery and murder convictions, Appellant’s Br. at 1, 7, 19, he did

       not set forth any argument or support for the claim that the evidence did not

       support the murder conviction, other than his arguments that the State failed to

       negate his claim of self-defense. Appellant’s Br. at 24-26. To that extent, he has

       waived his challenge to the sufficiency of the evidence as to his murder

       conviction. Ind. Appellate Rule 46(A)(8); Pinkston, 821 N.E.2d at 842. Waiver

       notwithstanding, we find that, given the record before us, the State presented

       sufficient evidence to convict Cobb of murder.


[35]   Affirmed.


       Friedlander, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1404-CR-228 |February 19, 2015   Page 23 of 23
