MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jan 23 2019, 10:03 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Stephen T. Owens                                         Curtis T. Hill, Jr.
Public Defender of Indiana                               Attorney General of Indiana
C. Brent Martin                                          Ian McLean
Deputy Public Defender                                   Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Derrick Weedman,                                         January 23, 2019
Appellant-Petitioner,                                    Court of Appeals Case No.
                                                         18A-PC-2144
        v.                                               Appeal from the Wells Circuit
                                                         Court
State of Indiana,                                        The Honorable Kenton W.
Appellee-Respondent                                      Kiracofe, Judge
                                                         Trial Court Cause No.
                                                         90C01-1603-PC-6



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-PC-2144 | January 23, 2019               Page 1 of 7
[1]   Derrick Weedman appeals the post-conviction court’s denial of his petition for

      post-conviction relief, arguing that his trial counsel provided ineffective

      assistance by not requesting a jury instruction containing the complete

      definition of self-defense. Finding no error, we affirm.


                                                    Facts
[2]   On June 20, 2012, a physical altercation broke out between Weedman and his

      step-father, Ted Schlichter, at their home. Weedman testified that Schlichter

      was the initial aggressor. Appellant’s App. Vol. II p. 104. According to

      Weedman, Schlichter “twisted [Weedman’s] pinkie tearing the tendon, then

      threw a punch at him.” Id. Weedman allegedly “feared for his life” if he were to

      get hit because he had a metal plate in his head from a prior severe head injury.

      Id. Weedman claimed that after Schlichter tackled him to the ground,

      Weedman hit back at Schlichter a few times to get him off.


[3]   After the fight concluded, Schlichter’s wife found Schlichter lying on the living

      room floor, bleeding heavily from his head. She placed a towel under his head

      and called 911. During this time, Weedman waited in the kitchen. The

      paramedics arrived and took Schlichter to the hospital.


[4]   Later medical examinations revealed that Schlichter had between eleven and

      twelve bones broken in his face and that his face had been flattened and shoved

      into the back of his skull. Additionally, Schlichter suffered neurological damage

      as a result of severe blunt-force trauma that rendered him unable to remember


      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2144 | January 23, 2019   Page 2 of 7
      what happened during the incident. As such, Weedman was the sole eye-

      witness to the altercation. Schlichter’s eyesight, memory, and facial structure

      have been permanently damaged because of Weedman’s actions. One of

      Schlichter’s treating physicians testified that Schlichter’s injuries could not have

      been caused by just two blows to the head. Id. at 124.


[5]   On July 23, 2012, the State charged Weedman with one count of Class B felony

      aggravated battery. At the jury trial in August 2013, Weedman claimed that he

      acted in self-defense. Therefore, Weedman’s trial counsel requested a self-

      defense jury instruction. The trial court prepared the following instruction:


                                         Final Instruction No. 12:


              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.

              However, a person my [sic] not use force if:

              He provokes a fight with another person with intent to cause
              bodily injury to that person; or he has 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 the fight.

              The State has the burden of proving beyond a reasonable doubt
              that the Defendant did not act in self-defense.


      Id. at 124-25. Weedman’s trial counsel neither objected to this final instruction

      nor requested an instruction that covered the entirety of the self-defense statute.

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2144 | January 23, 2019   Page 3 of 7
      The jury found Weedman guilty as charged. The trial court later sentenced

      Weedman to twenty years imprisonment. On November 26, 2014, we affirmed

      Weedman’s conviction. Weedman v. State, 21 N.E.3d 873 (Ind. Ct. App. 2014).

[6]   On March 30, 2017, Weedman filed an amended petition for post-conviction

      relief, claiming that his trial counsel provided ineffective assistance by failing to

      object to the self-defense instruction or request an instruction containing the

      complete definition of self-defense. On August 10, 2018, the post-conviction

      court denied his petition. Weedman now appeals.


                              Discussion and Decision
[7]   Weedman appeals the denial of his petition for post-conviction relief, arguing

      that his trial counsel provided ineffective assistance with respect to the self-

      defense jury instruction.


[8]   In post-conviction proceedings, the petitioner bears the burden of establishing

      grounds for post-conviction relief by a preponderance of the evidence. Helton v.

      State, 907 N.E.2d 1020, 1023 (Ind. 2009). A petitioner must show that the

      evidence unerringly and unmistakably leads to a conclusion opposite that

      reached by the trial court. Weatherford v. State, 619 N.E.2d 915, 917 (Ind. 1993).

      Furthermore, we will consider only the evidence and reasonable inferences

      supporting the post-conviction court’s judgment. Id.


[9]   For a claim of ineffective assistance of counsel, we use a two-part test. To

      satisfy the first prong, the defendant must show deficient performance:

      Court of Appeals of Indiana | Memorandum Decision 18A-PC-2144 | January 23, 2019   Page 4 of 7
       representation that fell below an objective standard of reasonableness,

       committing errors so serious that the defendant did not have the “counsel”

       guaranteed by the Sixth Amendment. Humphrey v. State, 73 N.E.3d 677, 682

       (Ind. 2017); see generally Strickland v. Washington, 466 U.S. 668, 687 (1984). To

       satisfy the second prong, the defendant must show prejudice: a reasonable

       probability (i.e., a probability sufficient to undermine confidence in the

       outcome) that, but for counsel’s errors, the result of the proceeding would have

       been different. Id. Our Supreme Court has instructed us that “[i]f it is easier to

       dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice

       . . . that course should be followed.” Wentz v. State, 766 N.E.2d 351, 360 (Ind.

       2002).


[10]   Weedman argues that his counsel should have requested a self-defense

       instruction that included the section of the statute governing claims of self-

       defense that discusses when a person may use deadly force. That section of the

       statute reads as follows:


                . . . However, 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. No person in this state shall be
                placed in legal jeopardy of any kind whatsoever for protecting the
                person or a third person by reasonable means necessary.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2144 | January 23, 2019   Page 5 of 7
       Ind. Code § 35-41-3-2(c). Weedman argues that the result would have been

       different had the jury been aware of the section regarding serious bodily injury.

       Specifically, he emphasizes that his defense was based on a claim that he had

       acted because he feared for his life.


[11]   Because Weedman’s counsel did not object, we must determine whether the

       instruction was fundamentally erroneous. To determine whether an instruction

       is fundamentally erroneous, we will review the record in its entirety to

       determine whether an honest and fair-minded jury would have rendered a

       guilty verdict absent use of the erroneous instruction. Coleman v. State, 630

       N.E.2d 1376, 1378 (Ind. Ct. App. 1994). If a jury instruction is not

       fundamentally erroneous, then counsel is not ineffective for failing to object at

       trial. Wilcoxen v. State, 705 N.E.2d 198, 204 (Ind. Ct. App. 1999).


[12]   The evidence of Weedman’s guilt is overwhelming. The record shows that

       Schlichter suffered major injuries that will forever impair his eyesight, memory,

       and appearance. Weedman broke at least eleven bones in Schlichter’s face and

       shoved his face into the back of his skull. Weedman beat Schlichter within an

       inch of his life even after the threat of potential harm to him subsided. One of

       Schlichter’s treating physicians opined that it could not have been a few slight

       blows that caused Schlichter’s injuries, despite Weedman’s testimony to the

       contrary. There is also no indication that Weedman was under threat of serious

       bodily injury from Schlichter’s actions. Any evidence demonstrating that

       Weedman was justified in using deadly force is scant. All that Weedman

       proffered was his own self-serving testimony that he feared being injured

       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2144 | January 23, 2019   Page 6 of 7
       because he had a metal plate in his head from a prior injury. Based on the

       record, we can only conclude that the jury would have rendered a guilty verdict

       for Weedman on a charge of aggravated battery even if the jurors had been

       instructed on the complete definition of self-defense. In other words, any error

       was harmless, and Weedman cannot show that he was prejudiced by counsel’s

       failure to object to the instruction.


[13]   Therefore, the post-conviction court did not err by denying his petition.


[14]   The judgment of the post-conviction court is affirmed.


       May, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-PC-2144 | January 23, 2019   Page 7 of 7
