MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                           May 11 2020, 8:40 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
Timothy J. Burns                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General

                                                        Tiffany A. McCoy
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Kenneth Branham,                                        May 11, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2042
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Mark D. Stoner,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        49G06-1807-MR-23319



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2042 | May 11, 2020                 Page 1 of 8
                                             Case Summary
[1]   Kenneth Branham appeals his convictions for murder and level 2 felony

      robbery, claiming that the evidence is insufficient to rebut his claim of self-

      defense. We affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the verdict are as follows. On June 18, 2018, Scott

      Forsberg hosted a cookout for a few of his neighbors. Branham came to

      Forsberg’s cookout and began drinking alcohol. A while later, another

      neighbor, Jeffrey Bowers, arrived. Bowers was not acquainted with Branham

      but noticed that Branham appeared to be “belligerently drunk.” Tr. Vol. 2 at

      142, 147. Not long after, Sheila Bennett arrived. She did not drink alcohol, but

      she noticed that the three men were drinking alcohol and that Branham was

      wearing black swim trunks and black and white Nike flipflops. Forsberg had

      his handgun lying in front of him on the patio table, which Bennett and Bowers

      characterized as normal behavior for Forsberg. During the cookout, Branham

      taunted Bowers and threatened to “kick [his] a*s,” so Bowers left. Id. at 144.

      After a while, Forsberg took a quick trip to a nearby liquor store to buy more

      alcohol. Meanwhile, Branham continued to sit at the table and drink alcohol.


[3]   A few minutes after Forsberg left, Bennett walked to her apartment to use the

      restroom but returned to the cookout because she did not have her keys. At

      about the same time, Forsberg returned from the liquor store. Forsberg placed

      bottles of vodka and fruit juice on the table, where Branham was still seated.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2042 | May 11, 2020   Page 2 of 8
      Suddenly, without either man having said a word, Branham “jumped up,

      picked the gun up off the table[,] and shot [Forsberg].” Id. at 158. Forsberg fell

      to the ground and said, “Dude you just shot me.” Id. Branham demanded

      Forsberg’s cellphone, money, and keys. He waved the handgun around and

      ordered Bennett to give him her cellphone and get into the swimming pool.

      Bennett gave him her phone because she “was afraid he’d kill [her] if [she]

      didn’t.” Id. at 159. Branham returned his attention to the injured Forsberg,

      who had fallen from a seated position to his back, and again demanded money

      and keys. Before Bennett ran from the property, she heard Branham threaten to

      shoot Forsberg again if he did not stay quiet and order Forsberg, “Give me your

      f**king car keys and all your f**king money.” Id. at 160. Branham kicked

      Forsberg’s face, rummaged through his pockets, and kicked him again.

      Surveillance camera footage recovered from Forsberg’s house captured several

      of the events, beginning with the shooting and including Branham pocketing

      Bennett’s phone, searching Forsberg’s clothing and vehicle, and returning to

      search Forsberg’s pockets and grab an item from Forsberg’s fingers before

      leaving the scene. State’s Exs. 63A, 63B, and 64.


[4]   Meanwhile, Bennett ran to a nearby auto-parts store and phoned 911. Shortly

      thereafter, Indianapolis Metropolitan Police Department officers arrived at the

      scene and found Forsberg on the ground, bleeding from his left chest/upper

      abdomen. Forsberg was transported by ambulance to a nearby hospital. Police

      recovered several items, including black and white flipflops, a beer can, and a

      plastic cup. Subsequent DNA and fingerprint tests linked the items to


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2042 | May 11, 2020   Page 3 of 8
      Branham. Forsberg underwent surgery and remained hospitalized until his

      death on July 12, 2018, as a result of complications from the gunshot wound.


[5]   The State charged Branham with murder, felony murder, and level 2 felony

      robbery. During his jury trial, Branham raised a self-defense claim, alleging

      that Forsberg pulled the handgun out of his pocket, pointed it at Branham’s

      face, and said, “I’m going to blow your f**king head off, I’ll kill you.” Tr. Vol.

      3 at 45. Then, according to Branham, he jumped up and turned over the table,

      and a twenty- to thirty-second struggle for the handgun ensued. Branham

      claims that he wrested control of the handgun and accidentally shot Forsberg.

      He testified that he stole the cellphone so that he could use it to call 911. There

      is no evidence of him making that call.


[6]   The jury convicted Branham as charged, and the trial court entered judgment

      on his murder and robbery convictions and sentenced him to an aggregate sixty-

      five-year term. Branham now appeals. Additional facts will be provided as

      necessary.


                                     Discussion and Decision
[7]   Branham challenges the sufficiency of the evidence to rebut his self-defense

      claim. We review a challenge to the sufficiency of evidence to rebut a self-

      defense claim using the same standard as for any sufficiency of evidence claim.

      Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2003). We neither reweigh evidence

      nor judge witness credibility. Id. If sufficient evidence of probative value

      supports the verdict, it will not be disturbed. Id. A single witness’s

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2042 | May 11, 2020   Page 4 of 8
      uncorroborated testimony is sufficient to support a conviction. Bailey v. State,

      979 N.E.2d 133, 135 (Ind. 2012). If a defendant is convicted despite his claim

      of self-defense, we will reverse only if no reasonable person could say that self-

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

      N.E.2d at 800–801.


[8]   Branham admits that he shot Forsberg but claims that he did so in self-defense.

      “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). “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.” Ind. Code § 35-41-3-2(c). To prevail on a

      self-defense claim, 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.” Morell,

      933 N.E.2d at 491. “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.” Id. The State satisfies this burden by presenting evidence of

      probative value from which a reasonable trier of fact could have found that the

      defendant did not validly act in self-defense and that he was guilty of the

      offenses charged. Id. at 492.


              [A] person is not justified in using force 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

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2042 | May 11, 2020   Page 5 of 8
               other person nevertheless continues or threatens to continue
               unlawful action.


       Ind. Code § 35-41-3-2(g)(3).


[9]    The record supports Branham’s assertion that as an invited guest, he had a right

       to be at Forsberg’s cookout. Branham maintains that Forsberg was the

       instigator/aggressor and that he acted merely out of fear of death or serious

       bodily injury. Specifically, he claims that Forsberg pulled the handgun out of

       his pocket and said, “I’m going to blow your f**king head off, I’ll kill you.” Tr.

       Vol. 3 at 45. He maintains that he and Forsberg struggled over the handgun for

       about twenty to thirty seconds before he wrested control of it and accidentally

       shot Forsberg. With respect to his theft of the cellphone, Branham claims that

       he needed to take it so that he could phone 911. There is no record of his ever

       having made that call.


[10]   Branham asserts that a close review of the video surveillance footage supports

       his testimony and clearly establishes his self-defense claim. He therefore

       submits that this is one of the narrow circumstances in which we are permitted

       to reweigh the evidence in his favor. See Love v. State, 73 N.E.3d 693, 699 (Ind.

       2017) (articulating narrow exception when reviewing court may reweigh facts

       in favor of defendant’s self-defense claim, if video evidence “indisputably

       contradicts the [factfinder’s interpretation] … such that no reasonable person

       could view the video and conclude otherwise.”). This applies only where the

       video is a clear and “complete depiction of the events at issue.” Id. “In cases

       where the video evidence is somehow not clear or complete or is subject to
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2042 | May 11, 2020   Page 6 of 8
       different interpretations, we defer to the [factfinder’s] interpretation.” Id. at

       699-700.


[11]   Here, the video evidence is incomplete. It comprises footage from two

       stationary home surveillance cameras and does not include sound. Due to the

       stationary position of the cameras, there is no footage involving the events

       taking place at the table, where the handgun had been placed, where Branham

       sat drinking, and where, by all accounts, the conflict began. Thus, many of the

       significant events were not within either camera’s view. The first significant

       event captured on video was the shooting itself – with the entrance of Branham

       and Forsberg into the left side of the frame and with Branham advancing and

       Forsberg backing up just as Branham shot him. The video also captured

       Branham’s initial search of Forsberg at gunpoint, his pocketing of a cellphone,

       Bennett’s abrupt turn and rapid departure, and Branham’s apparent lack of

       urgency to call 911, as evidenced by his protracted and repeated searches for

       Forsberg’s valuables after the shooting. The video simply did not capture the

       most controversial events, those immediately before the violence erupted.

       Moreover, nothing in the video depicts Branham as having been in fear for his

       life. In short, the video evidence neither supports Branham’s self-defense claim

       nor contradicts Bennett’s eyewitness testimony.


[12]   In sum, Branham had a right to be at the cookout as Forsberg’s invited guest,

       but beyond that, he has failed to establish that the State did not meet its burden

       of rebutting his self-defense claim. The video evidence supports the jury’s

       conclusion that Branham was at least a willing participant in, if not the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2042 | May 11, 2020   Page 7 of 8
       instigator of, the violence. Branham’s testimony that Forsberg initiated the

       violence by pointing the gun at him and threatening to kill him and that he shot

       Forsberg accidentally after a long struggle for the handgun is controverted by

       Bennett’s testimony that “[t]here was no struggle,” and that neither man said a

       word before Branham suddenly shot Forsberg. Tr. Vol. 2 at 158, 163. The jury

       was under no obligation to credit Branham’s self-serving, uncorroborated

       version of the shooting. See McCullough v State, 985 N.E.2d 1135, 1139 (Ind. Ct.

       App. 2013) (even where defendant undisputedly had right to be where he was at

       time of shooting, the only evidence supporting his account was his self-serving

       statements, and jury was not obligated to believe him), trans. denied. We decline

       Branham’s request to reweigh the evidence in his favor. Accordingly, we

       affirm.


[13]   Affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2042 | May 11, 2020   Page 8 of 8
