MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          FILED
court except for the purpose of establishing                         Jun 19 2019, 10:20 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf                                       Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Carl Lee Brookerd,                                       June 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3057
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1708-F3-51



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019                 Page 1 of 7
                                       Statement of the Case

[1]   Carl Brookerd (“Brookerd”) appeals his convictions, following a jury trial, for

      Level 3 felony aggravated battery1 and Level 5 felony battery by means of a

      deadly weapon.2 Brookerd argues that there was insufficient evidence to rebut

      his self-defense claim. Concluding that there was sufficient evidence, we affirm

      his convictions.


[2]   We affirm.


                                                     Issue

                 Whether there was sufficient evidence to rebut Brookerd’s self-
                 defense claim.

                                                     Facts

[3]   On August 2, 2017, Teejay Conley (“Conley”) was living with his mother,

      Tammy Brookerd (“Tammy”), his thirteen-year-old brother (“brother”), and his

      step-father, Brookerd, in South Bend. At Tammy’s request, Conley checked

      several things on her vehicle that she thought did not seem right. After

      checking the vehicle, Conley entered the house and asked Tammy whether she

      would consider trading her vehicle in to get a new one due to the amount of

      traveling she did for work. Brookerd, who was laying on the couch, interjected



      1
          IND. CODE § 35-42-2-1.5.
      2
          I.C. § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019   Page 2 of 7
      in the conversation and told Conley “that is my F’ing car. Get the F out of my

      house or I am going to F’ing shoot you.” (Tr. Vol. 2 at 44). A verbal

      altercation ensued, and Brookerd stood up from the couch and grabbed his

      loaded .40 caliber handgun from a nearby coffee table.


[4]   After seeing Brookerd grab his handgun, Conley quickly ushered his brother out

      of the house. Conley then drew his mother’s attention to Brookerd, and she

      searched for her phone to call 9-1-1. Conley approached Brookerd and

      Brookerd either “pushed [Conley] or punched [Conley].” (Tr. Vol. 2 at 26).

      Conley tackled Brookerd to the couch, and the two struggled over the handgun.


[5]   During the struggle, Conley thought he heard his brother re-enter the house.

      When Conley turned around to look for his brother, Brookerd hit him in the

      head with the handgun, causing a cut. Conley disengaged from the fight and

      began to walk away from Brookerd. Brookerd then fired a single round that

      entered Conley’s left hand near his ring finger, exited near his thumb, and

      lodged into the ceiling of the house.


[6]   On August 9, 2017, the State charged Brookerd with Level 3 felony aggravated

      battery and Level 5 felony battery by means of a deadly weapon. The case

      proceeded to a jury trial on September 11, 2018. Conley, Tammy, and brother

      all testified to the facts above. The jury was also presented with the testimony

      of Russell Lupica (“Officer Lupica”), the responding crime scene technician

      and officer with the South Bend Police Department. He testified about the

      physical characteristics of the crime scene and injuries to Conley. Officer


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019   Page 3 of 7
      Lupica concluded that based upon his training and experience, Conley’s wound

      lacked the characteristics consistent with a very close contact wound. Officer

      Lupica also testified that he did not observe any redness, swelling, bruising, or

      injuries to Brookerd.


[7]   Brookerd testified on his own behalf. He alleged that he shot Conley in self-

      defense after Conley attacked him and stated that he was going to kill him.

      Brookerd testified that when he fired the gun, Conley had “[o]ne hand on my

      neck. One hand struggling with the gun.” (Tr. Vol. 3 at 103). On cross-

      examination, Brookerd admitted that he did not tell the responding law

      enforcement officers that Conley threatened to kill him or made any verbal

      threats.


[8]   The jury found Brookerd guilty as charged. At a subsequent sentencing

      hearing, the trial court merged Brookerd’s battery with a deadly weapon

      conviction into his aggravated battery conviction. He was sentenced to nine (9)

      years in the Department of Correction, which was suspended to probation.

      Brookerd was ordered to serve four years of his probation on home detention.

      He now appeals.


                                                      Decision3




      3
        The “Statement of the Facts” section of Brookerd’s brief contains three sentences, which scantily describe
      the facts of this case. Instead, the “Argument” section of the brief contains a detailed recitation of relevant
      facts and testimony. We direct Brookerd’s counsel to Indiana Appellate Rule 46(A), which states in pertinent
      part that the “Facts” section “shall describe the facts relevant to the issues presented for review,” and that the

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019                         Page 4 of 7
[9]    Brookerd contends that the State failed to provide sufficient evidence to rebut

       his self-defense claim. Our standard of review for sufficiency of evidence claims

       is well-settled. We do not assess the credibility of the witnesses or reweigh the

       evidence in determining whether the evidence is sufficient. Drane v. State, 867

       N.E.2d 144, 146 (Ind. 2007). We consider only the probative evidence and

       reasonable inferences supporting the verdict. Id. Reversal is appropriate only

       when no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt. Id. The evidence is not required to overcome every

       reasonable hypothesis of innocence and is sufficient if an inference may

       reasonably be drawn from it to support the verdict. Id. at 147.


[10]   A valid claim of self-defense is a legal justification for an otherwise criminal act.

       Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). “A person is justified in using

       reasonable force against any other person to protect the person or a third person

       from what the person reasonably believes to be the imminent use of unlawful

       force.” IND. CODE § 35-41-3-2(c). However, 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 other person nevertheless

       continues or threatens to continue unlawful action.” I.C. § 35-41-3-2(g)(3).




       “Argument” section “shall contain the appellant’s contentions why the trial court … committed reversible
       error[,]” and instruct him to comply with this rule in future briefs.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019                   Page 5 of 7
[11]   In order to prevail on a claim of self-defense, a defendant must show: (1) he

       was in a place where he had a right to be; (2) he acted without fault; and (3) he

       had a reasonable fear of death or great bodily harm. Coleman v. State, 946

       N.E.2d 1160, 1165 (Ind. 2011). To sustain a defendant’s conviction, the State

       must negate at least one of the elements of the self-defense claim. Wallace, 725

       N.E.2d at 840. The State may meet its burden by rebutting the defense directly,

       by affirmatively showing that the defendant did not act in self-defense, or by

       simply relying upon the sufficiency of the State’s evidence in chief. Hood v.

       State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007), trans. denied. Whether the

       State has met its burden is a question of fact for the factfinder. Id. This Court

       will affirm if there is sufficient evidence of probative value to support the

       conclusion of the trier of fact. Wallace, 725 N.E.2d at 840. If the defendant is

       convicted despite his claim of self-defense, this Court 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, 800-01 (Ind. 2002). The

       standard of review for a challenge to the sufficiency of evidence to rebut a claim

       of self-defense is the same as the standard for any sufficiency of the evidence

       claim. Id. at 801. We neither reweigh the evidence nor judge the credibility of

       witnesses. Id. If there is sufficient evidence of probative value to support the

       conclusion of the trier of fact, then the verdict will not be disturbed. Id.


[12]   Brookerd argues that the evidence at trial supports his contention that he acted

       in self-defense. We disagree. Our review of the record reveals that Brookerd

       interrupted a conversation Conley was having with his mother. Unprovoked,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019   Page 6 of 7
       Brookerd then threatened to shoot Conley if he did not leave the house. A

       verbal altercation ensued and Brookerd grabbed his handgun. After Brookerd

       either “pushed [Conley] or punched [Conley][,]” a brief physical altercation

       took place on the couch, during which Brookerd struck Conley in the head with

       the handgun. (Tr. Vol. 2 at 26). Both Tammy and Conley testified that Conley

       disengaged from the altercation and was walking away when Brookerd shot

       Conley in the hand. Furthermore, Officer Lupica testified that the Conley’s

       wound lacked the characteristics consistent with a very close wound, which is

       at odds with Brookerd’s testimony that Conley had “[o]ne hand on [his] neck.

       One hand struggling with the gun[]” when he shot Conley. (Tr. Vol. 3 at 103).

       Thus, the State met its burden of rebutting Brookerd’s claim of self-defense by

       showing that he did not act without fault.


[13]   Brookerd’s argument that the evidence at trial shows that he justifiably acted in

       self-defense when he shot Conley is nothing more than an invitation to reweigh

       the evidence and judge the credibility of the witnesses, which we will not do.

       See Drane, 867 N.E.2d at 146. Because there was probative evidence from

       which the trier of fact could have found that the State rebutted Brookerd’s self-

       defense claim beyond a reasonable doubt, we affirm his convictions.


[14]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019   Page 7 of 7
