MEMORANDUM DECISION
                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                Dec 30 2016, 9:27 am
this Memorandum Decision shall not be
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.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Marielena Duerring                                      Gregory F. Zoeller
South Bend, Indiana                                     Attorney General
                                                        Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Marqwan D. Beserra,                                     December 30, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1606-CR-1369
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable John Marnocha,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        71D02-1506-MR-6



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1369 | December 30, 2016   Page 1 of 10
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Marqwan D. Beserra (Beserra), appeals his conviction for

      murder, a felony, Ind. Code § 35-42-1-1(1) (2014).


[2]   We affirm.


                                                    ISSUE

[3]   Beserra raises one issue on appeal, which we restate as follows: Whether the

      State presented sufficient evidence to negate Beserra’s claim of self-defense

      beyond a reasonable doubt.


                           FACTS AND PROCEDURAL HISTORY

[4]   On the afternoon of June 9, 2015, eighteen-year-old Beserra went to the home

      of Chanel Partee (Partee), located at 2434 Fredrickson Street in South Bend, St.

      Joseph County, Indiana. At the time, Beserra was intermittently living with

      Partee. Partee, who had previously dated Beserra’s father for several years,

      knew Beserra since his childhood, and Beserra considered Partee to be a

      mother-figure. On that day, a number of Partee’s friends were also present at

      Partee’s home, including Roesha Mohead (Mohead) and Dominique Walker

      (Walker).


[5]   Mohead was in the midst of having her hair styled by Walker when Jerry

      Wright (Wright), her former boyfriend and the father of her two-year-old child,

      arrived at Partee’s house to continue an ongoing argument with Mohead.

      Wright and Mohead’s conversation quickly became heated. Due to the


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1369 | December 30, 2016   Page 2 of 10
      escalating nature of the quarrel, Partee intervened, which prompted Wright to

      respond to Partee with a disrespectful comment. Upon hearing Wright’s

      remark to Partee, Beserra emerged and challenged Wright’s rudeness. Beserra

      and Wright had a history consisting of verbal altercations and severe tension

      over purported displays of disrespect. According to Beserra, on two previous

      occasions, Wright had displayed a handgun to Beserra.


[6]   The situation between Beserra and Wright rapidly intensified, and the two were

      “in each other’s face.” (Tr. p. 333). Partee, in an effort to prevent a fight in her

      living room, escorted Beserra and Wright outside, where she instructed them to

      go their separate ways. Instead, Beserra and Wright continued to stand in the

      middle of the street hurling slurs at one other. Wright invited Beserra to fight,

      but Beserra stated that he would not fight “while he’s got [his] tool.” (Tr. p.

      427). Beserra also informed Wright that “this is not what you want, I ain’t the

      one to play with.” (Tr. p. 467). There is significant discrepancy among the

      witnesses as to what occurred next, but it is undisputed that, at some point,

      Wright walked over to his vehicle, a white SUV, and when he turned back

      around toward Beserra, Beserra fired six shots from a nine millimeter handgun,

      striking Wright with each shot.


[7]   Mohead stated that when she heard the gunshots, she ran outside and witnessed

      Beserra, with his gun in hand, as he fled through the alley. She also observed

      Wright to be weaponless as he stumbled and fell to the ground. Mohead rushed

      to Wright’s side and did not notice any firearms nearby. Conversely, according

      to one of Partee’s friends who witnessed the shooting, Yjuannia Manns

      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1369 | December 30, 2016   Page 3 of 10
      (Manns), Beserra and Wright both had a gun in hand while arguing in the

      street. However, Manns added that when Wright invited Beserra to “[f]ight

      [him] one on one,” Wright very clearly stowed his gun in his SUV and never

      went back to retrieve it. (Tr. p. 368). Partee offered a third version of events,

      stating that upon Beserra’s indication that he would not engage in a fistfight

      while armed with his “tool,” Wright retrieved a gun from his SUV, at which

      time Beserra fired his weapon. (Tr. p. 427). Yet, when Partee went to check on

      Wright, she stated that she did not observe a gun. Lastly, Beserra proffered that

      during their verbal altercation, Wright suggested a fistfight and, although

      Wright had not displayed a firearm up to that point, he walked over to his SUV

      and placed a gun inside. Beserra claimed to have stated, “Man, I’m not going

      to fight you while I got this gun on me.” (Tr. p. 468). As such, Wright

      purportedly returned to the SUV to retrieve the firearm, and as Wright turned

      around with a gun in hand, Beserra fired his own weapon and “kept shooting

      ‘til he fell on the ground, then I seen [Wright’s] gun fall on the ground.” (Tr. p.

      469).


[8]   After he fired the sixth shot and watched Wright fall to the ground, Beserra fled

      the area and discarded the gun a few blocks away. Emergency personnel

      responded to Partee’s house, but by the time they arrived, Wright did not have

      a pulse and officers heard “death rattle” breathing. (Tr. p. 202). Wright was

      transported to the hospital and life-saving measures were attempted, but he did

      not survive. During their investigation, the South Bend Police Department and

      the St. Joseph County Metro Homicide Unit recovered several bullet fragments


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1369 | December 30, 2016   Page 4 of 10
       and six shell casings from a nine millimeter semi-automatic handgun, but no

       firearms were ever discovered. The police officers interviewed Mohead, who

       identified Beserra as the shooter and provided the officers with a photograph of

       Beserra that she found on Facebook. On the other hand, Partee offered a

       description of Beserra but indicated that she was not aware of his identity.

       Similarly, Manns told officers that she did not know the shooter’s identity and

       further indicated that she did not witness the shooting because she was checking

       her Facebook account. Neither Partee nor Manns informed the officers that

       they had observed Wright with a firearm.


[9]    On June 10, 2015, the State filed an Information, charging Beserra with one

       Count of murder, a felony, I.C. § 35-42-1-1(1) (2014). In September of 2015,

       Beserra, who had absconded after the shooting, was found and arrested in

       Atlanta, Georgia. On November 4, 2015, Beserra filed a notice of his intent to

       claim the use of justifiable force (i.e., self-defense) as a defense. On April 18

       through April 21, 2016, the trial court conducted a jury trial. At the close of the

       evidence, the jury returned a guilty verdict, and the trial court entered a

       judgment of conviction for one Count of murder. On May 20, 2016, the trial

       court held a sentencing hearing and ordered Beserra to execute sixty years in

       the Indiana Department of Correction.


[10]   Beserra now appeals. Additional facts will be provided as necessary.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1369 | December 30, 2016   Page 5 of 10
                                  DISCUSSION AND DECISION

                                             I. Standard of Review

[11]   Beserra claims that the State failed to present sufficient evidence to disprove his

       claim of self-defense. When reviewing a challenge to the sufficiency of

       evidence with respect to rebutting a claim of self-defense, our court relies on the

       same standard as in any other sufficiency of the evidence claim. Wilson v. State,

       770 N.E.2d 799, 801 (Ind. 2002). Accordingly, we do not reweigh evidence or

       assess the credibility of witnesses. Id. Instead, so long as “there is sufficient

       evidence of probative value to support the conclusion of the trier of fact, . . . the

       verdict will not be disturbed.” Id. “If a defendant is convicted despite his claim

       of self-defense, this [c]ourt will reverse only if no reasonable person could say

       that self-defense was negated by the State beyond a reasonable doubt.” Id. at

       800-01.


                                                 II. Self-Defense

[12]   In this case, there is no dispute that Beserra “knowingly or intentionally

       kill[ed]” Wright. I.C. § 35-42-1-1(1). Nevertheless, the Indiana General

       Assembly has explicitly declared “that it is the policy of this state that people

       have a right to defend themselves and third parties from physical harm and

       crime.” I.C. § 35-41-3-2(a). Thus, “[a] valid claim of self-defense is legal

       justification for an otherwise criminal act.” Hood v. State, 877 N.E.2d 492, 496

       (Ind. Ct. App. 2007), trans. denied. In order “to provide the citizens of this state

       with a lawful means of carrying out this policy,” Indiana statute stipulates:



       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1369 | December 30, 2016   Page 6 of 10
               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 lawful
               force. However, a person:
                   (1) is justified in using deadly force; and
                   (2) does not have a duty to retreat;
               if the person reasonably believes that that force is necessary to
               prevent serious bodily injury to the person or a third person or
               the commission of a forcible felony. No person in this state shall
               be placed in legal jeopardy of any kind whatsoever for protecting
               the person or a third person by reasonable means necessary.


       I.C. § 35-41-3-2(a),(c).


[13]   In raising a claim of self-defense, “the defendant must present evidence that he:

       (1) was in a place 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.” Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011),

       trans. denied. If the defendant is the initial aggressor or a mutual combatant, “he

       must withdraw from the encounter and communicate the intent to do so to the

       other person before he may claim self-defense.” Id. See I.C. § 35-41-3-2(g)(2)-

       (3) (providing that a person is not justified in using force if he provokes

       unlawful action of another individual with an intent to cause bodily injury to

       that individual, or if the person has entered into combat with another individual

       or is the initial aggressor and does not withdraw from the encounter). Once a

       defendant raises a claim of self-defense, the State bears the burden of disproving

       at least one of the necessary elements beyond a reasonable doubt in order for

       the defendant’s claim to fail. Hood, 877 N.E.2d at 497.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1369 | December 30, 2016   Page 7 of 10
               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 the sufficiency of its evidence
               in chief. Whether the State has met its burden is a question of
               fact for the factfinder. The trier of fact is not precluded from
               finding that a defendant used unreasonable force simply because
               the victim was the initial aggressor.


       Id. (internal citations omitted).


                                    III. Sufficiency of the State’s Evidence

[14]   On appeal, Beserra asserts that he was in a place where he was entitled to be,

       and although he engaged in a verbal altercation with Wright, he left the house

       and claims that his intent was to leave the area, but that “Wright would not

       leave him alone.” (Appellant’s Br. p. 8). Beserra further contends that

               [i]t was only after Beserra had refused to fight Wright, had told
               Wright that he was carrying a gun, and then saw Wright go back
               to his truck and rearm himself that he began shooting. It
               certainly cannot be said that at that time Beserra would not have
               had a reasonable apprehension that Wright was going to
               continue the fight, only this time with his gun. Of course it is
               axiomatic that when one is concerned about being on the
               receiving end of a gun that person is in fear of either serious
               bodily injury or death.


       (Appellant’s Br. pp. 8-9). Beserra also asserts that Wright should have gotten

       into his SUV and driven away before the altercation escalated.


[15]   We agree that the evidence establishes that Beserra “was in a place he had a

       right to be,” as the event unfolded on a public street. Tharpe, 955 N.E.2d at


       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1369 | December 30, 2016   Page 8 of 10
       844. However, we find ample evidence in the record to support a

       determination by the fact-finder that Beserra participated willingly in the fight

       and that he lacked a reasonable fear of death or great bodily harm. See id. First,

       as to his voluntary participation, Beserra engaged Wright in a verbal altercation

       after Wright made a disrespectful remark to Partee. When Partee escorted the

       men outside, they continued to be “in each other’s face.” (Tr. p. 335).

       Although Beserra attempts to shift the blame to Wright for continuing with the

       argument instead of driving away, Beserra himself had ample opportunity to

       walk away but chose not to do so. Instead, when Wright sought a fistfight,

       Beserra made it known that he was armed and warned Wright that he “ain’t the

       one to play with.” (Tr. p. 467).


[16]   Moreover, there is sufficient evidence that Beserra did not possess a reasonable

       fear of death or great bodily harm. In fact, he explicitly testified that he was not

       scared of Wright. Nonetheless, Beserra claims that although Wright never

       brandished a firearm during their altercation, he saw Wright stow a firearm in

       his SUV at the time that Wright suggested that they “ain’t gotta use no guns, we

       can just fight.” (Tr. p. 468). Thereafter, when Beserra indicated that he would

       not “fight [Wright] while I got this gun on me,” Beserra testified that Wright

       “went back to the [SUV] to go get his gun,” and “when he came back out with

       the gun and he came around . . . as he turned around, the gun was out. And I

       just shot him, and I kept shooting ‘til he fell on the ground, then I seen the gun

       fall on the ground.” (Tr. pp. 468-69).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1369 | December 30, 2016   Page 9 of 10
[17]   Beserra’s testimony directly contradicts Mohead’s testimony, who stated that

       she never saw a gun in Wright’s hands and that there was no firearm near him

       when she rushed to his side following the shooting. Furthermore, the

       investigating officers never recovered a weapon—specifically, no gun was found

       near Wright or on his person, nor in his vehicle or in or around Partee’s home.

       While Partee and Manns testified that they observed Wright with a gun, the

       jury also learned that Partee and Manns admittedly lied to police during their

       initial interviews in an apparent attempt to protect Beserra from being

       discovered. Similarly, neither Partee nor Manns ever informed the officers that

       Wright had a gun on him. Accordingly, it was well within the discretion of the

       jury to discredit the testimony indicating that Wright was in possession of a gun

       at the time of the shooting. Given the fact that Wright was unarmed and that

       Wright had made it clear to Beserra that he wanted to settle the altercation with

       their fists, the evidence supports a finding that Beserra did not have a

       reasonable fear of death or great bodily harm.


                                              CONCLUSION

[18]   Based on the foregoing, we conclude that the State presented sufficient evidence

       to rebut Beserra’s claim of self-defense.


[19]   Affirmed.


[20]   Crone, J. and Altice, J. concur




       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1369 | December 30, 2016   Page 10 of 10
