Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited 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:

THOMAS W. VANES                                     GREGORY F. ZOELLER
Merrillville, Indiana                               Attorney General of Indiana

                                                    GARY R. ROM
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                              FILED
                                                                           Feb 28 2012, 9:12 am


                               IN THE                                               CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and

                     COURT OF APPEALS OF INDIANA                                         tax court




RAFAEL DEL RIO,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 45A05-1106-CR-285
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                           The Honorable Salvador Vasquez, Judge
                               Cause No. 45G01-0807-FA-26



                                        February 28, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                        Case Summary

       Rafael Del Rio’s brother was shot and killed outside a bar. Del Rio witnessed the

shooting. Del Rio pursued the assailant and shot him multiple times, killing him. A jury

convicted Del Rio of class A felony voluntary manslaughter. Del Rio’s sole contention on

appeal is that the State failed to present sufficient evidence to rebut his claim of self-defense.

Finding the evidence sufficient, we affirm.

                               Facts and Procedural History

       On July 27, 2008, Del Rio went looking for his brother, Marco. He located Marco

walking outside a bar. As Marco was approaching Del Rio’s car, a man “came out of

nowhere,” pulled a revolver from his waist, and began firing shots at Marco. Tr. at 238.

After Marco went “down,” the shooter ran away. State’s Ex. 48 at 1. Del Rio reached for his

semiautomatic handgun and started to chase the shooter. Del Rio shot at his brother’s

assailant, Hector Lopez-Ramirez, and Lopez-Ramirez shot back. Del Rio pursued Lopez-

Ramirez and shot at him numerous times as Lopez-Ramirez retreated. Del Rio fired one shot

when Lopez-Ramirez was seventy-six feet away from where Marco went down, and then

fired at least another ten shots when Lopez-Ramirez had retreated another one hundred feet

away. Nine of the shots fired by Del Rio hit Lopez-Ramirez in the back of his body,

including his upper back, left hip, right hip, buttock, and right thigh. Forensic evidence

indicated that four of the shots were fired at Lopez-Ramirez at close range, and in close

succession, after Lopez-Ramirez’s body was no longer moving significantly. Both Lopez-




                                                2
Ramirez and Marco died of their wounds.1 Lopez-Ramirez’s revolver was found a few feet

from his body. Del Rio’s weapon was never recovered.

        On July 29, 2008, the State charged Del Rio with class A felony voluntary

manslaughter. A jury trial was held on April 11, 2011. During trial, Del Rio claimed that he

acted in self-defense. The jury found Del Rio guilty as charged. The trial court sentenced

Del Rio to twenty-two years in prison. This appeal ensued.

                                       Discussion and Decision

        Del Rio’s sole contention on appeal is that the State failed to present sufficient

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

evidence to rebut a claim of self-defense using the same standard as for any claim of

insufficient evidence.” Carroll v. State, 744 N.E.2d 432, 433 (Ind. 2001). That is to say, we

will affirm the conviction unless, considering only the evidence and reasonable inferences

favorable to the judgment, no reasonable factfinder could have found that the State disproved

self-defense beyond a reasonable doubt. Id. We will neither reweigh the evidence nor judge

the credibility of the witnesses. Id.

        “A person is justified in using reasonable force against another 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(a). A person is justified in using deadly force, and

does not have a duty to retreat, “if the person reasonably believes that that force is necessary



        1
          Although Del Rio initially told police that he had “blacked out” and had no idea what had become of
his brother’s shooter, he eventually admitted that he chased and repeatedly shot Lopez-Ramirez. Tr. at 238.


                                                     3
to prevent serious bodily injury to the person or a third person or the commission of a

forcible felony.” Id. To prevail on a claim of self-defense in a homicide prosecution, 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. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). When a claim

of self-defense is raised and finds support in the evidence, the State must disprove at least

one of these elements beyond a reasonable doubt. Id. 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. Id.

       Although Lopez-Ramirez was the initial aggressor and fired shots at Marco and Del

Rio, the record shows that Del Rio pursued Lopez-Ramirez and continued shooting at him

even after Lopez-Ramirez had ceased firing and was attempting to flee. Indeed, forensic

evidence indicates that Del Rio shot Lopez-Ramirez numerous times in the back of his body,

and would support the conclusion that several of those shots were fired after Lopez-Ramirez

was incapacitated and no longer moving. Lopez-Ramirez’s revolver was found several feet

from his body and no longer in his reach. Accordingly, it was reasonable for the jury to infer

that Del Rio could not have been laboring under a reasonable fear of death or great bodily

harm but was instead a willing participant in the violence at that time.       See id. (citing

Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct. App. 1999) (finding sufficient evidence

to rebut self-defense claim when defendant stabbed and continued to pursue initial aggressor

with a knife after initial aggressor retreated). The evidence was sufficient to support a


                                              4
reasonable inference that Del Rio was retaliating for the attack on his brother and did not

have a reasonable fear of death or great bodily harm when he continued to pursue Lopez-

Ramirez even after Lopez-Ramirez had stopped firing shots and was running away. We

conclude that the State presented sufficient evidence to rebut Del Rio’s self-defense claim.2

Therefore, we affirm Del Rio’s voluntary manslaughter conviction.

        Affirmed.

MAY, J., and BROWN, J., concur.




        2
          We note that, in addition to instructing the jury regarding self-defense, the trial court instructed the
jury regarding a citizen’s right to use reasonable force to make an arrest if a felony has been committed in his
presence. See Indiana Code Section 35-33-1-4. Del Rio points to our citizen’s arrest statute in conjunction
with Indiana Code Section 35-41-3-2 to support his argument that he was justified in pursuing and killing
Lopez-Ramirez after the attack on his brother. Section 35-41-3-2 provides:

                 (a) A person is justified in using reasonable force against another person to protect
        the person or a third person from what the person reasonably believes to be the imminent use
        of unlawful 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 the 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.

Ind. Code § 35-41-3-2(a). However, what was reasonable under the circumstances was a question for the jury
and, as noted above, the jury did not agree that deadly force was reasonable self-defense on Del-Rio’s part. It
is not our prerogative to second-guess the jury.

                                                        5
