                                                                  FILED
 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
                                                                Oct 18 2012, 8:36 am
 any court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.                          CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

KIMMERLY A. KLEE                                     GREGORY F. ZOELLER
Greenwood, Indiana                                   Attorney General of Indiana

                                                     IAN McLEAN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

BLAKE CLAYTON,                                       )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 49A05-1203-CR-129
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable John Chavis, Judge Pro Tempore
                             Cause No. 49F24-1103-FD-017362


                                          October 18, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                      Case Summary

       Blake Clayton appeals his conviction for Class D felony pointing a firearm.

Clayton contends there is insufficient evidence to support his conviction and that the

statute governing pointing a firearm is unconstitutional as applied to him. Because the

State sufficiently proved Class D felony pointing a firearm and Clayton has no standing

to argue that the statute governing pointing a firearm is unconstitutional, we affirm his

conviction.

                              Facts and Procedural History

       On March 13, 2011, Susan Asher and her daughter, Nicole, went to Clayton’s

home to retrieve dishes lent to him for a birthday party for Susan’s other daughter and

Clayton’s on-again, off-again girlfriend, Tessa. Clayton let Susan and Nicole into his

house, and the three of them loaded the dishes into the Ashers’ car. Clayton said “he had

been stupid the night before,” Tr. p. 14, and that “I really messed up this time.” Id. at 44.

       When they returned to the house, Nicole told Clayton, “stay away from my family

and stay away from my sister.” Id. at 45. Nicole and Clayton began to argue, and

Clayton “chest bumped” Nicole.        Id. at 46.   Clayton then pulled a gun out of his

basketball shorts and held it to Nicole’s forehead. Nicole yelled at Clayton, and Susan

begged Clayton not to kill Nicole. Susan later recalled Clayton saying, “I’ll shoot you,

bitch,” and that “he’d kill [Nicole], and he’d shoot her.” Id. at 17. Clayton lowered the

gun and walked toward Susan. Nicole then threw a can of air freshener at Clayton, and

Nicole and Susan tried to shield each other from Clayton and the gun.




                                              2
      At some point, Clayton began to walk toward Nicole again, and Susan realized

that he had put the gun down. Susan picked up the gun and put it in her coat pocket. She

told Nicole that she had the gun and the women left the house and walked to Susan’s car.

Clayton followed them, yelling things like “we weren’t going to have [Tessa] we weren’t

ever going to see her again. If he couldn’t have her nobody was going to have her.” Id.

at 50. Susan and Nicole drove away, and Susan called 911.

      Indianapolis Metropolitan Police Department Officer David Janicijevic responded

to the call. He handcuffed Susan since he was the only responding officer and retrieved

the loaded gun that she had taken from Clayton’s house. Officer Janicijevic’s partner,

Officer Lona Douglas, arrived soon after him, and Susan was taken out of the handcuffs.

After taking statements from Susan and Nicole, Officers Douglas and Janicijevic left to

go to Clayton’s house to get a statement from him. On their way to Clayton’s house, the

officers were radioed that Clayton had arrived at the Ashers’ house. An off-duty police

officer who lived nearby held Clayton until Officers Douglas and Janicijevic returned and

arrested Clayton.

      The State charged Clayton with Class D felony pointing a firearm, and a bench

trial was held. At trial, Clayton testified that he had not touched his gun while Susan and

Nicole were at his house and that Susan admitted to him that she stole his gun from his

nightstand. However, the trial court found Clayton guilty and sentenced him to 730 days

in the Department of Correction, with 545 days executed, to run consecutive to the

sentence he was currently serving for a Morgan County conviction.

      Clayton now appeals.


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                                   Discussion and Decision

       Clayton makes two arguments on appeal: (1) whether the evidence is sufficient to

support his conviction for Class D felony pointing a firearm, and (2) whether the statute

governing pointing a firearm is unconstitutional as applied to him.

                              I. Sufficiency of the Evidence

       Our standard of review with regard to sufficiency claims is well settled. In

reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence

or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.

App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable

to the judgment and the reasonable inferences draw therefrom and affirm if the evidence

and those inferences constitute substantial evidence of probative value to support the

judgment. Id. Reversal is appropriate only when a reasonable trier of fact would not be

able to form inferences as to each material element of the offense. Id.

       Class D felony pointing a firearm is governed by Indiana Code section 35-47-4-3,

which provides in relevant part:

       (b) A person who knowingly or intentionally points a firearm at another
       person commits a Class D felony. However, the offense is a Class A
       misdemeanor if the firearm was not loaded.

The evidence adduced at trial shows that Clayton pulled out a gun and pointed it at

Nicole’s head after the two of them got into an argument about Clayton’s relationship

with Nicole’s sister. This is sufficient evidence to support Clayton’s conviction.

       Clayton, however, contends that he was justified in using reasonable force against

Nicole under Indiana Code section 35-41-3-2 to protect himself from the “imminent use


                                             4
of unlawful force.” Since self defense is an affirmative defense to Class D felony

pointing a firearm, Clayton argues that the State has failed to provide sufficient evidence

of his guilt. We disagree.

       Clayton did not raise the affirmative defense of self defense at trial, and

“[a]ffirmative defenses cannot be raised for the first time on appeal.” Lafary v. Lafary,

476 N.E.2d 155, 159 (Ind. Ct. App. 1985). Further, Clayton himself acknowledges in his

brief that he “could not avail himself of the [self-defense] exclusion, as such an

affirmative defense ran contrary to Clayton’s testimony at trial . . . .” Appellant’s Br. p.

11. By not testifying to self defense at trial and therefore not raising the affirmative

defense, Clayton has waived this issue for our review.

       Even if Clayton had raised self defense at trial, his argument would still fail. In

order to prevail on a claim of self defense, the defendant must show that he had both a

“subjective belief that force was necessary to prevent serious bodily injury, and that such

belief actual belief was one that a reasonable person would have under the

circumstances.” Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007). At trial, Clayton

presented no evidence of his subjective belief that force was necessary because he

testified that he never had the gun when Nicole and Susan were at his house. The

evidence that was adduced at trial also shows that Nicole and Clayton argued before

Clayton pointed the gun at her. A verbal altercation is not enough for a reasonable

person to believe that pointing a gun was necessary to prevent serious bodily injury.

Nicole did throw a can of air freshener at Clayton, but that was after he had already

pointed the gun at her and told Susan that he would kill Nicole. Therefore, Clayton failed


                                             5
to show either a subjective or objective belief that self defense was reasonable in this

case. The evidence is sufficient to support his conviction for Class D felony pointing a

firearm.

                               II. Constitutional Challenge

       Clayton also contends that Indiana Code section 35-47-4-3 is unconstitutional as

applied to him. The State argues that this argument is waived because Clayton failed to

file a motion to dismiss the charge against him based on the constitutionality of the

statute at the trial court level. However, “‘the constitutionality of a statute may be raised

at any stage of the proceeding,’ and may even be raised sua sponte by this court.” Akers

v. State, 963 N.E.2d 615, 617 (Ind. Ct. App. 2012) (citing Morse v. State, 593 N.E.2d

194, 197 (Ind. 1992)), trans. denied. We therefore find that Clayton has not waived this

argument.

       However, we first must determine whether Clayton has standing to bring this

constitutional claim; “the party challenging the law must show adequate injury or the

immediate danger of sustaining some injury.” Pence v. State, 652 N.E.2d 486, 488 (Ind.

1995). In this case, Clayton contends that the statute materially burdens his right to bear

arms to protect himself within his own home. Appellant’s Br. p. 12. We disagree.

       Indiana Code section 35-47-4-3 provides that self defense is an affirmative

defense to pointing a firearm, and Clayton would have had this defense available to him

if he had pointed his weapon in self defense. Self defense was not available in this case

due to both Clayton’s testimony at trial that he did not touch the gun while Nicole and

Susan were at his house and Clayton’s failure to raise the defense at trial. Clayton’s


                                             6
ability to bear arms to protect himself within his own home therefore has not been

materially burdened by this statute, and he is in no danger of sustaining any injury. As a

result, we find that Clayton lacked standing to bring this constitutional challenge.

       Affirmed.

MATHIAS, J., and BARNES, J., concur.




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