Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited                                              Aug 26 2013, 5:40 am

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:

TIMOTHY J. BURNS                                 GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 RYAN D. JOHANNINGSMEIER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DERRICK KING,                                    )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )       No. 49A05-1211-CR-579
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Annie Christ-Garcia, Judge
                             Cause No. 49F24-1108-FD-55981


                                       August 26, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                     Case Summary

       Derrick King appeals his conviction for Class B misdemeanor disorderly conduct.

We affirm.

                                           Issue

       The issue before us is whether there was sufficient evidence to rebut King’s self-

defense claim.

                                           Facts

       On August 7, 2011, at approximately 10:30 p.m., Christopher Morris and Laresa

Miller drove to Jarlene Rasco’s residence in Indianapolis to pick up clothes and a

television located inside the garage. Rasco is Miller’s mother. King, Miller’s former

boyfriend, was inside Rasco’s residence visiting his children. He and Miller have three

children together who reside with Rasco.

       Upon arrival, Miller and Morris did not find the items inside the garage. Rasco

met both of them in the garage and asked Morris to step outside. Rasco and Miller began

to argue, which led to a physical altercation. Morris made his way back inside the garage

and saw King holding Miller in a “bear hug,” trying to break up the fight. Tr. p. 23.

Morris attacked King and a fight ensued. After the fight escalated inside the house,

Morris expressed that he did not want to fight in front of the children. As Morris was

leaving the house, King ran to the kitchen to grab a knife. King went after Morris with a

knife and chased him around Miller’s car. Morris then grabbed a curtain rod from the

trunk of the car to defend himself. He climbed into the passenger side of the car to leave.

King “ran to the car and . . . proceeded to strike [Morris]” in the face. Tr. p. 51. Morris

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stepped outside the car with the curtain rod and struck King in the head. At that moment,

Officer Jerry Torres arrived and placed them both under arrest.

       King was charged with one count of criminal recklessness, one count of battery,

and one count of disorderly conduct. He was convicted only of Class B misdemeanor

disorderly conduct. King now appeals.

                                        Analysis

       King challenges the sufficiency of evidence to rebut his claim of self-defense. A

valid claim of self-defense is a legal justification for an otherwise criminal act. Henson

v. State, 786 N.E.2d 274, 277 (Ind. 2003) (quoting 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).

       When a defendant accused of using non-lethal force has raised a self-defense

claim, the State must disprove at least one of the following elements beyond a reasonable

doubt: 1) the defendant was in a place where he or she had a right to be; 2) the defendant

was without fault; and 3) the defendant had a reasonable fear or apprehension of bodily

harm. Boyer v. State, 883 N.E.2d 158, 162 (Ind. Ct. App. 2008) (quoting White v. State,

699 N.E.2d 630, 635 (Ind. 1998)). 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 v. State, 933 N.E.2d 484, 491 (Ind. Ct. App. 2010) (quoting Wilson v.

State, 770 N.E.2d 799, 800 (Ind. 2002)). If a defendant is convicted despite his or her

claim of self-defense, this court will reverse only if no reasonable person could say that

                                            3
self-defense was negated by the State beyond a reasonable doubt. Id. We will neither

reweigh the evidence nor judge the credibility of witnesses. Id. at 492. If there is

sufficient evidence of probative value to support the conclusion of the trier of fact, then

the judgment will not be disturbed. Id.

      King claims that he had permission to visit his children at Rasco’s residence the

night of the incident. He indicates that Morris was the initial aggressor and argues that

after the fight escalated outside, King “reasonably believed he was still in danger.”

Appellant’s Br. p. 7. King claims that he did not have a duty to retreat and that he

punched Morris while he was in the car because Morris attacked him with a curtain rod

prior to that. However, Morris testified to using the curtain rod after King struck him and

we will not reweigh the evidence. We note, also, that King had an opportunity to end the

altercation when Morris left the residence. King explained during his testimony:

              [Counsel for King]: At some point in time, does the fighting
              stop?

              [King]: The fighting stops after -- it stops for a split second . .
              . . Morris, he stops, after he gets a couple more hits in and he
              proceeds out of the door.

                                          *****

              [Counsel for King]: . . . . [W]hat do you do next?

              [King]: . . . . I proceeded outside because my children is still
              right there and [Rasco] and [Miller] are still outside fighting .
              ...

                                          *****

              [Counsel for King]: So you go outside and what happens
              when you go outside?

                                              4
              [King]: When I go outside, Christopher Morris is still on the
              telephone and I proceed to chase Christopher Morris around
              the car. That part I did do because he was still fighting . . . .

Tr. pp. 47-48, 50.

       “[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)

(emphasis added). “A claim of self-defense will also fail if the person ‘uses more force

than is reasonably necessary under the circumstances.’” Sudberry v. State, 982 N.E.2d

475, 481 (Ind. Ct. App. 2013) (quoting Harmon v. State, 849 N.E.2d 726, 731 (Ind. Ct.

App. 2006)). “A person claiming self-defense cannot reasonably base a belief that the

threat is imminent on the actions of another who has withdrawn from the confrontation.”

Henson, 786 N.E.2d at 278.

       Morris testified that after the altercation, he intended to leave with Miller and told

King that he did not want to fight in front of the children. Once Morris left the house,

King followed him with a knife and chased him around the car until he retrieved a curtain

rod from the trunk to defend himself. Further, King walked up to the vehicle and

punched Morris in the face after Morris intended to leave.            This evidence clearly

indicates that any right of self-defense King may have had when Morris initially attacked

him no longer existed because he became a mutual combatant and at no time retreated or

communicated his intent to withdraw from fighting, while Morris had in fact retreated


                                              5
from the encounter. King further used excessive force when he escalated the fight

outside the household with a knife. He, at this point, was no longer defending himself.

King’s arguments to the contrary are an invitation to reweigh the evidence, which we

cannot do.

                                     Conclusion

      We conclude there was sufficient evidence to rebut King’s claim of self-defense.

We affirm.

      Affirmed.

NAJAM, J., and BAILEY, J., concur.




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