MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                Mar 13 2018, 7:51 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Rory Gallagher                                           Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
                                                         Tyler G. Banks
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Treyone Devon Johnston,                                  March 13, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1709-CR-2169
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David J. Certo,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G12-1607-CM-26450



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2169 | March 13, 2018   Page 1 of 4
                                          Case Summary
[1]   Following a bench trial, Treyone Devon Johnston (“Johnston”) was convicted

      of Disorderly Conduct, as a Class B Misdemeanor. 1 Johnston now appeals,

      challenging the sufficiency of the evidence rebutting his claim of self-defense.


[2]   We affirm.



                                Facts and Procedural History
[3]   Around 2:00 a.m. on July 10, 2016, Officer Kevin Moore of the Indianapolis

      Metropolitan Police Department (“Officer Moore”) was parked in his patrol

      car, observing the crowd at a nightclub in downtown Indianapolis. At some

      point, Officer Moore heard and saw an argument between Johnston and

      another man. Officer Moore exited his car, approached the club, and saw

      Johnston punch the man. A fight ensued. Officer Moore’s verbal attempt to

      break up the fight was unsuccessful, at which point Officer Moore deployed his

      taser. Johnston was arrested and charged with Disorderly Conduct. The trial

      court then held a bench trial, at which Johnston claimed self-defense. The court

      found Johnston guilty and imposed a sentence. Johnston now appeals.




      1
          Ind. Code § 35-45-1-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2169 | March 13, 2018   Page 2 of 4
                                Discussion and Decision
[4]   Johnston argues that the State presented insufficient evidence to rebut his claim

      of self-defense. In reviewing such challenges, we use “the same standard as for

      any claim of insufficient evidence.” Carroll v. State, 744 N.E.2d 432, 433 (Ind.

      2001). We “will reverse only if no reasonable person could say that self-defense

      was negated by the State beyond a reasonable doubt.” Wilson v. State, 770

      N.E.2d 799, 800-801 (Ind. 2002). Moreover, in conducting our review, “[w]e

      neither reweigh the evidence nor judge the credibility of witnesses.” Sanders v.

      State, 704 N.E.2d 119, 123 (Ind. 1999). Rather, we consider the evidence, and

      all reasonable inferences, in a light most favorable to the judgment. Id.


[5]   To obtain a conviction, the State was obligated to prove, beyond a reasonable

      doubt, that Johnston “recklessly, knowingly, or intentionally . . . engage[d] in

      fighting or tumultuous conduct.” I.C. § 35-45-1-3(a). At trial, Johnston argued

      that he was acting in self-defense. Under the Indiana self-defense statute, “[a]

      person is justified in using reasonable force against any other person to protect

      the person . . . from what the person reasonably believes to be the imminent use

      of unlawful force.” I.C. § 35-41-3-2(c). However, the use of force is not

      justified if “the person has entered into combat with another person or is the

      initial aggressor unless the person withdraws from the encounter and

      communicates to the other person the intent to do so and the other person

      nevertheless continues or threatens to continue unlawful action.” I.C. § 35-41-

      3-2(g)(3). “When a claim of self-defense is raised and finds support in the

      evidence,” Wilson, 770 N.E.2d at 800, the State must then “disprove, beyond a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2169 | March 13, 2018   Page 3 of 4
      reasonable doubt, at least one element of self-defense,” Carroll, 744 N.E.2d at

      433. To meet this burden, the State may either “rebut[] the defense directly or

      rely[] on the sufficiency of evidence in its case-in-chief.” Id. at 434.


[6]   Johnston’s self-defense argument relied on testimony indicating that he was not

      the initial aggressor—testimony that conflicts with Officer Moore’s testimony.

      Moreover, there was no evidence that Johnston withdrew from the physical

      altercation. See I.C. § 35-41-3-2(g)(3); Wilson, 770 N.E.2d at 801. Ultimately,

      the evidence favorable to the judgment indicates that Johnston argued outside a

      nightclub, threw the first punch, and kept fighting even after Officer Moore

      arrived. We conclude that this is sufficient evidence from which a reasonable

      trier of fact could reject a claim of self-defense and find Johnston guilty.


[7]   Affirmed.


      Kirsch, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2169 | March 13, 2018   Page 4 of 4
