        MEMORANDUM DECISION

        Pursuant to Ind. Appellate Rule 65(D),
                                                                         Oct 30 2015, 9:01 am
        this 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
        Megan Shipley                                            Gregory F. Zoeller
        Indianapolis, Indiana                                    Attorney General of Indiana
                                                                 Karl M. Scharnberg
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                   IN THE
            COURT OF APPEALS OF INDIANA

        Aloric Carson,                                           October 30, 2015
        Appellant-Defendant,                                     Court of Appeals Case No.
                                                                 49A05-1503-CR-112
                v.                                               Appeal from the Marion Superior
                                                                 Court
        State of Indiana,                                        The Honorable Shannon L.
        Appellee-Plaintiff                                       Logsdon, Commissioner
                                                                 Trial Court Cause No.
                                                                 49F18-1309-CM-060976



        Mathias, Judge.


[1]     Following a bench trial, Aloric Carson (“Carson”) was convicted in Marion

        Superior Court of Class A misdemeanor resisting law enforcement and Class B


        Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-112 | October 30, 2015   Page 1 of 6
        misdemeanor disorderly conduct. He was ordered to serve an aggregate

        sentence of 180 days in the Department of Correction with 178 days suspended.

        On appeal, Carson argues that the State failed to rebut his self-defense claim on

        the disorderly conduct charge.

[2]     We affirm.

                                        Facts and Procedural History


[3]     Early in the morning on September 14, 2013, Carson was out celebrating a

        friend’s birthday at a bar in downtown Indianapolis. He left the party with

        another man and two women he had just met who had offered him a ride back

        to his car. When one of the women stopped her car outside the parking garage

        where Carson’s car was located, Carson claims two men opened the car door

        and attempted to rob Carson’s companion, allegedly at knifepoint. The weapon

        was described as a hunting knife with a six-inch blade. Carson jumped out of

        the car and began to fight the taller of the two men, who did not have the knife.


[4]     Just across the street, Officer Timothy Elliott (“Officer Elliott”) of the

        Indianapolis Metropolitan Police Department (“IMPD”) was working off-duty

        as a private security guard. Officer Elliott was dressed in his IMPD uniform.

        Around 2:30 a.m., Officer Elliott heard several people shout and directed his

        attention across the street where two men were arguing and physically fighting.

        Although Officer Elliott did not see the start of the fight or know why the men

        were fighting, he quickly ran across the street to respond to the altercation.



        Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-112 | October 30, 2015   Page 2 of 6
[5]     Both men were in “fighting stance,” but Carson landed significantly more

        punches, and the other man fell to the ground unconscious. Appellant’s Br. at 2.

        Carson knelt over the man and continued to punch him. Officer Elliott grabbed

        Carson by his shoulders, identified himself as a police officer, and ordered

        everyone to stop. Despite the officer’s order, Carson still attempted to punch the

        unconscious man. As Officer Elliott was about to handcuff Carson, an

        unidentified man ran up and punched him in the chest. This caused Officer

        Elliott to fall back, and the man helped Carson to his feet and told him to run.


[6]     Officer Elliott chased the men as they ran south on Meridian Street. He ordered

        them to stop and identified himself as a police officer several times, but both

        men continued to run. Officer Elliott used his Taser on Carson, which caused

        him to slow down. Carson ran through a parking lot, and Officer Elliott finally

        apprehended him in a grassy area.

[7]     The State charged Carson with Class A misdemeanor resisting law

        enforcement, Class B misdemeanor public intoxication, and Class B

        misdemeanor disorderly conduct. After a bench trial, Carson was convicted on

        all charges except Class B misdemeanor public intoxication. At trial, Carson

        claimed self-defense in relation to the disorderly conduct charge. The trial court

        found that Carson’s admission to fighting was enough to find him guilty of

        disorderly conduct. The court ordered Carson to serve an aggregate sentence of

        180 days with 178 days suspended. He was also ordered to complete 120 hours

        of community service. Carson now appeals.



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                                            Discussion and Decision


[8]      Carson argues that the State failed to rebut his claim of self-defense, and

         therefore, the evidence was insufficient to support his disorderly conduct

         conviction. “Upon a challenge to the sufficiency of evidence to support a

         conviction, a reviewing court does not reweigh the evidence or judge the

         credibility of witnesses, and respects the [trier of fact’s] exclusive province to

         weigh conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

         We consider only probative evidence and reasonable inferences supporting the

         verdict. Id. We must affirm if the probative evidence and reasonable inferences

         drawn from the evidence could have allowed a reasonable trier of fact to find

         the defendant guilty beyond a reasonable doubt. Id.


[9]      To convict Carson of disorderly conduct, the State was required to prove that

         he:

                 recklessly, knowingly, or intentionally: (1) engage[d] in fighting or
                 in tumultuous conduct; (2) ma[de] unreasonable noise and
                 continue[d]to do so after being asked to stop; or (3) disrupt[ed] a
                 lawful assembly of persons.

         Ind. Code § 35-41-1-3(a)(1) – (3).


[10]     Carson does not dispute that he was fighting in the early morning hours on

         September 14, 2013, but rather that he was acting in self-defense because one of

         the men who tried to rob his companion allegedly had a knife.

[11]     A valid claim of defense of oneself or another person is legal justification for an

         otherwise criminal act. Morell v. State, 933 N.E.2d 484, 491 (Ind. Ct. App. 2010)


         Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-112 | October 30, 2015   Page 4 of 6
         (citing Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002)). In order to prevail on a

         claim of self-defense, the defendant must 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. Id. A

         reasonable fear of death or serious bodily harm is undoubtedly required in a

         case involving deadly force. Dixson v. State, 22 N.E.3d 836 (Ind. Ct. App. 2014).

         However, when a case does not involve deadly force, a defendant claiming self-

         defense must only show that he was protecting himself from what he

         “reasonably believe[d] to be the imminent use of unlawful force.” Id.; Ind. Code

         § 35-41-3-2(c).


[12]     When a claim of self-defense is raised and finds support in the evidence, the

         State has the burden of negating at least one of the necessary elements. Morell,

         933 N.E.2d at 491. The State can rebut a self-defense claim by relying on

         evidence in its case-in-chief. Id. Further, a mutual combatant, whether or not

         the initial aggressor, must declare an armistice before he or she may claim self-

         defense. Id.


[13]     At trial, the State presented evidence that the fight started after an argument

         where both men were mutual combatants and that Carson continued to punch

         the man even after he fell to the ground unconscious. At that point, no further

         force was necessary to protect Carson or his companion. The trial court also

         determined that Carson’s version of events lacked credibility:

                 Mr. Carson I have heard all of the evidence and I have heard the
                 argument today. What I am going to tell you first of all is this,

         Court of Appeals of Indiana | Memorandum Decision 49A05-1503-CR-112 | October 30, 2015   Page 5 of 6
                 regardless of my decision you made some bad choices. And you
                 and I come from different places and that is okay. Right? But
                 where I come from somebody comes at me with a knife or tries to
                 get one of my friends out of a car, my first reaction is not to jump
                 out of a car and start fighting them because I am probably going to
                 get hurt. I don’t. . . like you testified you don’t carry a gun, you
                 don’t carry a knife but you are willing to jump out of a car for a
                 man you don’t even know, can’t tell me his name, which matter
                 doesn’t matter to these charges. . . but what your testimony is
                 today is you are so willing to get out of the car and defend that guy
                 against a guy with a knife and another guy who is bigger than you
                 and you will just jump out. My reaction is call 911 or run away
                 because I don’t want to get stabbed right? So we may come from
                 different places but at one point in your testimony, your testimony
                 is that when fight or flight happens, you fight. But then a few
                 minutes later when flight or flight happens you flee. So within a
                 matter of moments you chose two different options to protect
                 yourself.

         Tr. pp. 69-70.

[14]     It is within in the trial court’s discretion to make this credibility determination.

         Carson’s claim of error on appeal is merely a request that we reweigh the

         evidence or judge the credibility of a witness, which we cannot do. For all of

         these reasons, the State did not fail to rebut Carson’s self-defense claim and

         there was sufficient evidence to support Carson’s conviction for Class B

         misdemeanor disorderly conduct.

[15]     Affirmed.


         Baker, J., and Bailey, J., concur.




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