MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Jul 31 2018, 10:06 am

regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Peter D. Todd                                             Curtis T. Hill, Jr.
Elkhart, Indiana                                          Attorney General of Indiana
                                                          Matthew B. MacKenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kawani Dukes,                                             July 31, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-601
        v.                                                Appeal from the Elkhart Superior
                                                          Court
State of Indiana,                                         The Honorable David T. Ready,
Appellee-Plaintiff.                                       Senior Judge
                                                          Trial Court Cause No.
                                                          20D01-1604-F3-15



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-601 | July 31, 2018                  Page 1 of 8
                                           Case Summary
[1]   Kawani Dukes (“Dukes”) appeals his conviction, following a jury trial, of

      aggravated battery, as a Level 3 felony.1 He raises one issue on appeal, namely,

      whether the trial court abused its discretion when it refused to instruct the jury

      on self-defense.


[2]   We affirm.



                               Facts and Procedural History
[3]   The facts favorable to the judgment are as follows. On August 22, 2016, Leslie

      Allen Watkins (“Watkins”) purchased half a gallon of vodka and went to

      Duke’s apartment in Goshen. At approximately 3:00 p.m., Watkins and Dukes

      began drinking vodka at Dukes’s apartment. At one point, Watkins passed out

      for about fifteen minutes.


[4]   At approximately 6:30 p.m. that same evening, Goshen Police Department

      (“GPD”) officers arrived at Dukes’s apartment to serve a warrant on a female.

      The officers made contact with Dukes and noticed that he was intoxicated in

      that he was slurring his speech, had red glossy eyes, and smelled of alcohol.

      The officers also saw Watkins in Dukes’s apartment. Watkins “was slouched in

      a chair” and appeared to be passed out. Tr. Vol. III at 69. While officers were




      1
          Ind. Code § 35-42-2-1.5.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-601 | July 31, 2018   Page 2 of 8
      present, Dukes was belligerent and yelled at the female, calling her a “bitch”

      and other names. Id. at 71.


[5]   After the police left and Watkins awoke, Watkins began drinking again. Then

      Dukes came toward Watkins “with a blank look on his face,” pushed Watkins

      to the ground, and began to choke Watkins. Tr. Vol. IV at 87. Watkins kneed

      Dukes in the back, momentarily repelling his attack and allowing Watkins to

      run out the apartment door. Dukes however dragged Watkins back into the

      apartment.


[6]   Later that day, GPD officers responded to a report of a male staggering and

      falling down on a roadway. Upon arriving at the scene, officers found Watkins

      sitting on the curb of a road and bleeding. Watkins was taken to the hospital,

      where it was discovered that he had a limited ability to breathe, lacerations on

      his scalp, two collapsed lungs, seven broken ribs, and a broken jaw. Watkins

      remained hospitalized for three weeks.


[7]   After Watkins was taken to the hospital, GDP officers tracked his footprints in

      the snow from the curb where they had found him, back to Dukes’s apartment.

      When Dukes answered the door, officers noticed he had an injury on the

      knuckle of his right hand, with fresh blood on it. Officer Jeremy Welker

      (“Officer Welker”) was wearing a lapel camera that recorded part of his

      conversation with Dukes at the apartment. Dukes appeared to be intoxicated—

      his speech was slurred and he swayed while talking to police. Dukes informed

      the police that Watkins had refused to leave when Dukes asked him to do so, so


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-601 | July 31, 2018   Page 3 of 8
      Dukes pushed Watkins out of the apartment into the hallway. State’s Ex. 100

      at 3:50. Dukes stated that Watkins hit him first and he then threw Watkins to

      the ground. Id. at 3:25. Dukes admitted to the officers that he had struck

      Watkins three times in the face. Tr. Vol. III at 239.


[8]   On February 16, 2016, the State charged Dukes with aggravated battery.

      Dukes’s jury trial took place on January 30, 2018. At trial, the recording from

      Officer Welker’s lapel camera was admitted into evidence without objection,

      and was published to the jury. State’s Ex. 100. After both parties rested, but

      before closing arguments, Dukes requested that the court give the jury an

      instruction on self-defense, which stated as follows:


              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. The State has the burden of
              proving beyond a reasonable doubt that the Defendant did not
              act in self-defense. Indiana Pattern Jury Instruction Criminal
              No. 10.0300.


      App. Vol. II at 33. The State objected to this instruction on the basis of Howard

      v. State, 755 N.E.2d 242 (Ind. Ct. App. 2001), arguing that “there’s been no

      testimony or evidence elicited from the Defendant that he was in any fear,

      much less … fear of death or great bodily harm.” Tr. Vol. IV at 145-46. The

      trial court denied Defendant’s request to include a self-defense instruction,

      holding:

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-601 | July 31, 2018   Page 4 of 8
              [T]he Court agrees with the State’s position and their analysis of
              the thing. The court would also point out that while the only
              evidence to support a self-defense is Defendant’s apparent
              statement to a police officer that he was struck by the victim, by
              Leslie Watkins. However, they also—we would note here that
              Mr. Watkins testified and is not negated in any way that once
              this fracas started, that he was able to get out of the apartment,
              either on the landing or the steps, I don’t recall, but out of the
              apartment itself and that the Defendant, Kawani Dukes, drug
              him back into the apartment. That—Court feels that that
              evidence is sufficient to certainly negate any suggestion of self-
              defense, yet alone be substantial evidence. Therefore, the Court
              does not find there is sufficient evidence to submit the self-
              defense instruction and declines to do so.


      (Tr. Vol. IV 147-48). Dukes now appeals.



                                 Discussion and Decision
[9]   Dukes challenges the trial court’s refusal to give his proposed instruction on

      self-defense. The manner of instructing the jury is within the discretion of the

      trial court, and we will reverse only for abuse of that discretion. E.g., Henson v.

      State, 786 N.E.2d 274, 277 (Ind. 2003).


              In determining whether a trial court abused its discretion by
              declining to give a tendered instruction, we consider the
              following: (1) whether the tendered instruction correctly states
              the law; (2) whether there was evidence presented at trial to
              support giving the instruction; and (3) whether the substance of
              the instruction was covered by other instructions that were given.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-601 | July 31, 2018   Page 5 of 8
       Lampkins v. State, 778 N.E.2d 1248, 1253 (Ind. 2002) (citation omitted). Here,

       there is no contention that the proposed self-defense instruction incorrectly

       stated the law, nor is there a contention that the instruction was covered by

       other instructions that were given. Rather, the only issue in this case is whether

       the trial court erred in holding that there was insufficient evidence presented at

       trial to support giving the self-defense instruction.


[10]   A valid claim of self-defense is a legal justification for an act that is otherwise

       defined as “criminal.” I.C. § 35-41-3-2;2 see also, Henson, 786 N.E.2d at 277.

       Initially, the burden is on the defendant to provide evidence that: (1) he was in

       a place where he had a right to be; (2) he acted without fault; and (3) he had a

       reasonable fear of “the imminent use of unlawful force.” Dixson v. State, 22

       N.E.3d 836, 839 (Ind. Ct. App. 2014) (noting that, in cases that do not involve

       deadly force, the defendant does not have to provide evidence of fear of “death

       or serious bodily harm,” but merely reasonable fear of the “imminent use of

       unlawful force”), trans. denied.


[11]   After the defendant has provided evidence of those three factors, the burden

       switches to the State to negate one of those factors. E.g., Wilson v. State, 770

       N.E.2d 799, 800 (Ind. 2002). If the defendant presents even a “scintilla of

       evidence” of probative value—and even if that evidence is “weak and




       2
         “A person is justified in using reasonable force against any other person to protect the person or a third
       person from what the person reasonably believes to be the imminent use of unlawful force.” I.C. § 35-41-3-
       2(c).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-601 | July 31, 2018                       Page 6 of 8
       inconsistent” and is based solely on the defendant’s own testimony—the trial

       court should give the instruction unless the State has disproved one of the three

       factors. Howard v. State, 755 N.E.2d 242, 247-48 (Ind. Ct. App. 2001), trans.

       denied. However, “[t]he amount of force that a person may use to protect

       himself or herself depends on the urgency of the situation.” Mateo v. State, 981

       N.E.2d 59, 72 (Ind. Ct. App. 2012) (citation omitted), trans. denied. If an

       individual uses more force than is reasonably necessary under the

       circumstances, his self-defense claim will fail. Id. In addition, a “mutual

       combatant, whether or not the initial aggressor, must communicate the desire to

       stop fighting, and the other individual must continue fighting before self-defense

       can be successfully claimed.” Id. (citing I.C. § 35-41-3-2(e)(3)).


[12]   Here, as in Howard v. State, the defendant has failed to carry his burden because

       he provided no evidence at all that he was ever in fear of the use of unlawful

       force. 755 N.E.2d at 248. Moreover, even assuming that Watkins hit Dukes

       first, the evidence indicates that Dukes used much greater force than was

       reasonably necessary; that is, in response to being “hit,” Dukes broke seven of

       Watkins’s ribs, broke Watkins’s jaw, and used force strong enough to collapse

       Watkins’s lungs and require his hospitalization for three weeks. State’s Ex. 100

       at 3:25. Furthermore, there is no evidence that Dukes ever communicated a

       desire to stop fighting with Watkins but Watkins nevertheless continued to

       fight. Therefore, the trial court did not abuse its discretion when it refused to

       give the jury an instruction on self-defense. Howard, 755 N.E.2d at 248; Mateo,

       981 N.E.2d at 72.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-601 | July 31, 2018   Page 7 of 8
[13]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-601 | July 31, 2018   Page 8 of 8
