MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                   Jul 05 2019, 6:06 am

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


ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Megan Shipley                                             Attorney General of Indiana
Marion County Public Defender Agency                      George P. Sherman
– Appellate Division                                      Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Marcus Lloyd,                                             July 5, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2649
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable David J. Certo,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G12-1804-CM-13965



Mathias, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019                    Page 1 of 6
[1]   Marcus Lloyd (“Lloyd”) was convicted in the Marion Superior Court of Class

      B misdemeanor disorderly conduct.1 Lloyd now appeals arguing the evidence

      was insufficient to rebut his claim of self-defense.2


[2]   We affirm.


                                     Facts and Procedural History

[3]   In the early morning hours of April 15, 2018, a fight broke out at Blu Nightclub

      located at the corner of Louisiana Street and Meridian Street in Indianapolis.

      Marcus Lloyd (“Lloyd”) worked security at the Blu Nightclub on the night of

      the incident. Lloyd had finished his shift and upon exiting the club, Lloyd saw

      ten to fifteen people fighting. There was loud music playing from the club, and

      the street was full of people leaving the club. Lloyd attempted to break up the

      fight and as a result got involved in an altercation with Albert Germany

      (“Germany”).

[4]   Indianapolis Metropolitan Police Officer Matthew Plummer (“Officer

      Plummer”) and other officers were about half a block away when they noticed

      the fight. Officer Plummer was standing about thirty to forty feet away from the

      crowd when he deployed ten to fifteen rounds of pepper balls toward the

      ground in efforts to disperse the crowd. After the first round of pepper balls,




      1
          “Engages in fighting or in tumultuous conduct.” See Ind. Code § 35-45-1-3(a)(1).
      2
        In his brief, Lloyd also argued that the trial court abused its discretion at sentencing by failing to conduct an
      indigency hearing. The trial court has since held an indigency hearing, and the issue is now moot. Notice of
      Post-Judgment Change in Circumstances pp. 1–2.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019                           Page 2 of 6
      around “90 percent of the people dispersed.” Tr. p. 12. Officer Plummer

      observed that Lloyd and Germany continued “throwing punches and [were]

      still fighting.” Id.


[5]   The officers gave commands to Lloyd and Germany to stop fighting, but they

      did not comply. After the “pushing and shoving and throwing the punches” did

      not cease, Officer Plummer fired additional pepper balls in Lloyd and

      Germany’s direction. Tr. p. 13. When Officer Plummer was about five feet

      away, both Lloyd and Germany stopped fighting and “basically hugged it out. .

      . [and] held onto each other.” Id. The officers handcuffed both men and took

      them into custody. Officer Plummer estimated the whole incident lasted one to

      one-and-a-half minutes from the start of the fight until the arrest.

[6]   On April 27, 2018, the State charged Lloyd with Class B misdemeanor

      disorderly conduct. A bench trial was held on October 4, 2018. At trial, Lloyd

      argued his actions were justified under Indiana’s self-defense laws because he

      was protecting himself and others. Lloyd was found guilty as charged.3 The

      same day, the trial court sentenced Lloyd to 180 days in the Marion County

      jail, with 178 days suspended to probation. The court imposed court costs and

      probation fees totaling $405.00.4 On April 23, 2019, the court held an indigency




      3
        Albert Germany was also charged with one count of disorderly conduct. Lloyd and Germany were tried
      together, and Germany was found not guilty.
      4
          Court costs of $185.00 and probation fees of $220.00.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019                 Page 3 of 6
      hearing, reducing Lloyd’s total fees and costs from $405 to $200. Lloyd now

      appeals.


                                     Discussion and Decision

[7]   Lloyd contends only that the evidence is insufficient to rebut his claim of self-

      defense. 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: a reviewing court neither reweighs the evidence nor judges

      the credibility of the witnesses, and if there is sufficient evidence of probative

      value to support the judgment, the judgment will not be disturbed. McCullough

      v. State, 985 N.E.2d 1135, 1138–39 (Ind. Ct. App. 2013), trans. denied. The court

      examines “only the evidence most favorable to the judgment along with all

      reasonable inferences to be drawn therefrom.” Clark v. State, 695 N.E.2d 999,

      1002 (Ind. Ct. App. 1998). “If a defendant is convicted despite his or her claim

      of self-defense, [an appellate court] will reverse only if no reasonable person

      could say that self-defense was negated by the State beyond a reasonable

      doubt.” Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied.


[8]   To convict Lloyd of Class B misdemeanor disorderly conduct, the State had to

      show that Lloyd: (1) recklessly, knowingly, or intentionally; (2) engaged; (3) in

      fighting or tumultuous conduct. Ind. Code § 35-45-1-3(a)(1). Lloyd does not

      dispute the fact that he engaged in fighting but alleges he acted in self-defense.

      We disagree.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019   Page 4 of 6
[9]    Indiana’s self-defense statute provides, “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). In order to prevail on a claim of self-defense, a 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.” Simpson v. State, 915 N.E.2d

       511, 514 (Ind. Ct. App. 2009), trans. denied. When a claim of self- defense is

       raised and finds support in the evidence, the State then has the burden of

       negating at least one of the elements. Cole v. State, 28 N.E.3d 1126, 1137 (Ind.

       Ct. App. 2015). The State may meet this burden by rebutting the defense

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

       by simply relying upon its evidence in chief. Miller v. State, 720 N.E.2d 696, 700

       (Ind. 1999). We conclude that there was sufficient evidence to rebut Lloyd’s

       claim of self-defense since Lloyd participated willingly in the violence.


[10]   Here, Lloyd testified that he “got in between a couple people, grabbed them,

       pulled them away.” Tr. p. 20. Lloyd continued to throw punches at Germany

       even after law enforcement officers arrived at the scene.

[11]   Our Indiana Supreme Court has held that “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.” Wilson v.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019   Page 5 of 6
       State, 770 N.E.2d 799 (Ind. 2002) (quoting Ind. Code § 35-41-3-2(e)(3) (2002).

       Here, once the officers arrived on the scene, dispersed the crowd, and issued

       commands to stop fighting, Lloyd had the responsibility to disengage and

       withdraw from the fight. Lloyd was required to withdraw as a precondition for

       a claim for self-defense. Lloyd ignored the officers’ requests multiple times and

       continued fighting. Additionally, a reasonable person would not fear death or

       great bodily harm in the presence of uniformed officers that were stopping the

       fight. Lloyd was a willing participant in the fight, and his force was

       unwarranted under the circumstances. Therefore, this evidence is sufficient to

       rebut Lloyd’s claim of self-defense.


                                                 Conclusion
[12]   Based on the facts and circumstances before us, the evidence presented was

       sufficient to rebut Lloyd’s claim of self-defense. Accordingly, we affirm Lloyd’s

       conviction for disorderly conduct.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019   Page 6 of 6
