                                                                             Feb 12 2015, 7:19 am




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Matthew D. Anglemeyer                                      Gregory F. Zoeller
      Marion County Public Defender                              Attorney General of Indiana
      Appellate Division
      Indianapolis, Indiana                                      Ian McLean
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Jeremy Fitzgerald,                                        February 12, 2015

      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                49A02-1407-CR-507
              v.                                                Appeal from the Marion Superior
                                                                Court
                                                                The Honorable Sheila A. Carlisle,
      State of Indiana,                                         Judge
      Appellee-Plaintiff                                        The Honorable Stanley Kroh,
                                                                Magistrate
                                                                Case No. 49G03-1404-FB-20344




      Bradford, Judge.



                                           Case Summary
[1]   On April 19, 2014, Melanie Jones and her friend Appellant-Defendant Jeremy

      Fitzgerald staged a fake robbery in an apparent attempt to conceal Jones’s theft

      of money from her employer. According to the scheme concocted by Jones,

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      Fitzgerald would run from Jones’s vehicle and Jones would act as if she had

      been robbed. Jones would then claim to be unable to identify the perpetrator.

      The scheme, however, did not go as planned because a Good Samaritan,

      Matthew Bingham, intervened in an attempt to thwart the apparent robbery.

      Bingham chased after and ultimately detained Fitzgerald until police caught up

      with the men and placed Fitzgerald under arrest. Appellee-Plaintiff the State of

      Indiana (the “State”) subsequently charged Fitzgerald with Class C felony

      intimidation for actions committed by Fitzgerald against Bingham once

      Bingham had detained him.


[2]   On appeal, Fitzgerald challenges his conviction claiming that the detainment of

      him by Bingham did not amount to a lawful “citizen’s arrest” and, as such, he

      was entitled to employ reasonable force to defend himself against the unlawful

      detention. Fitzgerald further challenges his conviction claiming that the State

      failed to disprove his self-defense claim. Upon review, we conclude that the

      detainment of Fitzgerald by Bingham did not amount to a lawful “citizen’s

      arrest.” However, we further conclude that the State presented sufficient

      evidence to disprove Fitzgerald’s self-defense claim. As such, we affirm

      Fitzgerald’s conviction for Class C felony intimidation.



                             Facts and Procedural History
[3]   As Bingham exited the CVS store located at the corner of 16th Street and

      Meridian Streets in Indianapolis on April 19, 2014, he “heard a girl yelp.” Tr.

      p. 22. Bingham looked toward the direction of the sound and saw a woman’s

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      feet “hanging out of the driver’s seat” of a black sports utility vehicle (“SUV”).

      Tr. p. 22. Bingham also saw a man, who was later identified as Fitzgerald, run

      away from the SUV. Bingham approached the SUV and asked the woman,

      who was later identified as Jones, if she was okay. Bingham observed that

      Jones appeared to have been sprayed in the face with pepper spray. Jones

      “muttered some stuff” and said that Fitzgerald “took her bag.” Tr. p. 28.


[4]   After speaking to Jones, Bingham began to run after Fitzgerald. Fitzgerald

      soon realized that he was being chased by Bingham. Upon making this

      realization, Fitzgerald continued to run. At some point during the chase, the

      men scaled a wrought iron fence. Bingham continued to chase Fitzgerald for

      approximately fifteen to twenty minutes. Eventually, Fitzgerald became

      “backed up into a corner.” Tr. p. 40.


[5]   Fitzgerald then turned toward Bingham, pulled a knife out of his pocket, and

      told Bingham to “get the f*** away from me” and “it’s not what you think.”

      Tr. p. 82. At the time, Bingham was five or six feet from Fitzgerald. After

      observing the knife, Bingham retreated to a distance of approximately eight to

      ten feet from Fitzgerald. Indianapolis Metropolitan Police Officer Kollin

      Anslow subsequently arrived at the scene and placed Fitzgerald under arrest.


[6]   Jones, whose eyes had swollen shut after being sprayed in the face with pepper

      spray, was transported to Methodist Hospital after complaining that she was

      experiencing difficulty breathing. Indianapolis Metropolitan Police Detective

      Gregory Scheid, the lead detective charged with investigating the alleged


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      robbery, spoke to Jones at Methodist Hospital. Detective Scheid showed Jones

      a photo array of potential attackers. Jones, however, “declined” to identify

      anyone. Tr. p. 58.


[7]   On April 23, 2014, the State charged Fitzgerald with Class B felony robbery and

      Class C felony intimidation. At some point after charges were filed, Detective

      Scheid “became suspicious of whether a robbery had actually taken place.” Tr.

      p. 56. Detective Scheid spoke to Fitzgerald’s mother, Donna Clevenger, who

      expressed confusion because Fitzgerald and Jones were friends and Jones “was

      denying that she knew who robbed her.” Tr. p. 56. In the course of

      “follow[ing] up” on the statements made by Clevenger, Detective Scheid

      became convinced that “there actually had not been a real robbery that

      occurred that day.” Tr. p. 56.


[8]   Detective Scheid subsequently learned of missing deposits from the store at

      which Jones worked after speaking to a representative in the corporate

      headquarters for Jones’s place of employment. Detective Scheid came to

      believe that Jones and her boyfriend, a manager at the store at which Jones

      worked named Brian, had conspired to steal money from the store. They had

      then conspired to “set up a robbery where they would be able to write-off the

      loss.”1 Tr. p. 57. The “wrench” in their plan was that Bingham chased down

      Fitzgerald “instead of him just getting away.” Tr. p. 57. In light of the




              1
                  For reasons unknown, Fitzgerald agreed to play the part of the apparent robber.


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       information learned by Detective Scheid, the State subsequently decided to

       drop the robbery charge.


[9]    On June 11, 2014, the trial court conducted a bench trial after which it found

       Fitzgerald guilty of Class C felony intimidation. The trial court subsequently

       sentenced Fitzgerald to a three-year term, with two years executed and one year

       suspended to probation. This appeal follows.



                                   Discussion and Decision
         I. Whether Bingham’s “Citizen’s Arrest” of Fitzgerald
                            was Lawful
[10]   “Indiana follows the general common law rule that ‘a private citizen has the

       right to arrest one who has committed a felony in his presence, and may even

       arrest one he reasonably believes to have committed a felony, so long as the

       felony was in fact committed.’” U.S. v. Hillsman, 522 F.2d 454, 460-61 (7th Cir.

       1975) (quoting Surratt v. Petrol, Inc., Ind. App., 312 N.E.2d 487, 495 (1974).

       Specifically, Indiana Code section 35-33-1-4(a) provides as follows:

               Any person may arrest any other person if:
               (1) the other person committed a felony in his presence;
               (2) a felony has been committed and he has probable cause to believe that
               the other person has committed that felony; or
               (3) a misdemeanor involving a breach of peace is being committed in
               his presence and the arrest is necessary to prevent the continuance of
               the breach of peace.
       (Emphases added). Stated another way,


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               The private citizen’s right to make an arrest … is limited by the fact
               that he, unlike a police officer, acts at his own peril. A police officer
               has the right to arrest without a warrant where he reasonably believes
               that a felony has been committed and that the person arrested is guilty,
               even if, in fact, no felony has occurred. A private citizen, on the other
               hand, is privileged to make an arrest only when he has reasonable
               grounds for believing in the guilt of the person arrested and a felony has
               in fact been committed.
       Hillsman, 522 F.2d at 461 (citing Smith v. State, 258 Ind. 594, 597, 283 N.E.2d

       365, 367 (1972); Doering v. State, 49 Ind. 56, 58 (1874); Teagarden v. Graham, 31

       Ind. 422, 424 (1869)) (emphasis added).


[11]   In the instant matter, Bingham chased and detained Fitzgerald after forming the

       reasonable belief that Fitzgerald had robbed Jones. However, although

       Bingham reasonably believed that Fitzgerald had committed a felony, i.e., a

       robbery, the fact of the matter is that no robbery had been committed. As such,

       pursuant to the above-quoted, long-standing precedent, we must conclude that

       Bingham’s “citizen’s arrest” of Fitzgerald was unlawful. Having concluded

       that Bingham’s “citizen’s arrest” of Fitzgerald was unlawful, we must next

       consider whether the trial court erred in finding that the State sufficiently

       rebutted Fitzgerald’s self-defense claim.


       II. Whether the State Sufficiently Disproved Fitzgerald’s
                         Self-Defense Claim
[12]   On appeal, Fitzgerald contends that the trial court erred in finding that the State

       sufficiently rebutted his self-defense claim.

               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
       Court of Appeals of Indiana | Opinion 49A02-1407-CR-507 | February 12, 2015       Page 6 of 10
               person is justified in using reasonable force against another person to
               protect himself or a third person from what he reasonably believes to
               be the imminent use of unlawful force.” Ind. Code § 35-41-3-2 (2001).
               A claim of self-defense requires a defendant to have acted without
               fault, been in a place where he or she had a right to be, and been in
               reasonable fear or apprehension of bodily harm. White v. State, 699
               N.E.2d 630, 635 (Ind. 1998).
       Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003).

[13]           Once the defendant asserts a claim of self-defense, the State bears the
               burden of disproving the existence of one of the elements of the claim.
               Mariscal v. State, 687 N.E.2d 378, 381 (Ind. Ct. App. 1997), trans.
               denied. The State may rebut a claim of self-defense by affirmatively
               showing that the defendant did not act to defend himself or another by
               relying on the evidence elicited in the case-in-chief. Id. 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 challenge. [Rodriguez v. State, 714 N.E.2d 667, 670 (Ind. Ct.
               App. 1999), trans. denied].
       Wilcher v. State, 771 N.E.2d 113, 116 (Ind. Ct. App. 2002).

[14]           Upon a challenge to the sufficiency of the evidence, this court will not
               reweigh evidence or determine the credibility of witnesses. VanMatre
               v. State, 714 N.E.2d 655, 657-58 (Ind. Ct. App. 1999). Instead, we will
               look only to the evidence favorable to the judgment along with any
               reasonable inferences to be drawn therefrom. Id. at 657. If there is
               substantial evidence of probative value from which the jury could find
               guilt beyond a reasonable doubt, we will affirm the conviction. Id. at
               658.
       Id. at 116-17. A defendant’s conviction will be upheld unless no reasonable

       person could say that the State negated the self-defense claim beyond a

       reasonable doubt. Id. at 116 (citing Lilly v. State, 506 N.E.2d 23, 24 (Ind. 1987);

       Mariscal, 687 N.E.2d at 381).




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[15]   The version of Indiana Code section 35-45-2-1(a)(1) in effect on the date in

       question provided that “[a] person who communicates a threat to another

       person, with the intent … that the other person engage in conduct against the

       other person’s will … commits intimidation, a Class A misdemeanor.”

       However, the offense is a … Class C felony if … while committing it, the

       person draws or uses a deadly weapon.” Ind. Code § 35-45-2-1(b)(2)(A). In

       alleging that Fitzgerald committed Class C felony intimidation, the State

       alleged that Fitzgerald communicated to Bingham,

               a threat to commit a forcible felony, that is: an implied threat to stab or
               cut [Bingham], ordering him to ‘Get the [f***] away from me” or
               words to that effect, with the intent that [Bingham] engage in conduct
               against his will, that is: to force [Bingham] to terminate his pursuit
               and/or apprehension of [Fitzgerald] who he believed had committed a
               crime, and while making said threat [Fitzgerald] did draw or use a
               deadly weapon, that is: by pulling and brandishing a knife at
               [Bingham] while making said threat[.]
       Appellant’s App. p. 32.


[16]   Fitzgerald does not challenge the sufficiency of the evidence to prove that he

       drew a deadly weapon, i.e., a knife, while communicating a threat to Bingham

       with the intent that Bingham engage in conduct against his will, i.e., terminate

       his chase of Fitzgerald. Instead, Fitzgerald claims that he was justified in doing

       so because he acted in self-defense and that the State failed to present sufficient

       evidence to rebut his self-defense claim. Specifically, Fitzgerald argues that the

       State failed to present sufficient evidence to rebut his claim that he was in a

       location where he had a right to be, that he acted without fault, and that he

       acted out of a reasonable fear or apprehension of bodily harm.

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[17]   With respect to the location element, the record demonstrates that at the time of

       the detainment, Bingham had Fitzgerald “backed up into a corner” of a public

       parking lot. Tr. p. 40. Nothing in the record indicates that Fitzgerald did not

       have a right to be in the public location. As such, the record supports

       Fitzgerald’s assertion that he was in a location where he had a right to be.


[18]   However, we disagree with Fitzgerald’s claim that the record unquestionably

       supports his assertion that he acted without fault. In carrying out the fake

       robbery, Fitzgerald was attempting to help a friend cover up a theft. Fitzgerald

       acknowledged that from Bingham’s perspective, it appeared that Fitzgerald had

       robbed Jones, specifically that he had forcibly taken a bag from Jones and

       sprayed her in the face with pepper spray. Fitzgerald also acknowledged that

       he knew that robbery is a crime, but claimed that he did not enter into the

       situation thinking that he was “doing anything but helping a friend.” Tr. p. 84.

       The trial court was entitled to consider these facts and find that Fitzgerald did

       not act without fault.


[19]   Furthermore, we disagree with Fitzgerald’s claim that the record

       unquestionably supports his assertion that he acted out of reasonable fear or

       apprehension of bodily harm. Fitzgerald testified that he feared Bingham

       because Bingham continued making aggressive movements toward him, even

       after Bingham cornered him. Bingham, for his part, testified that he stayed a

       safe distance—approximately five to six feet—from Fitzgerald during his chase

       and so-called detainment of Fitzgerald. Bingham further testified that he

       withdrew to a distance of approximately eight to ten feet from Fitzgerald once

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       Fitzgerald pulled the knife out of his pocket. Although Fitzgerald testified that

       he “pulled the knife” because he was afraid of Bingham and had no intention of

       cutting or stabbing Bingham, tr. p. 80, the trial court was not obligated to

       believe Fitzgerald’s self-serving testimony. See McCullough v. State, 985 N.E.2d

       1135, 1139 (Ind. Ct. App. 2013) (providing that the jury, acting as the trier of

       fact, was under no obligation to credit defendant’s statement to police as

       evidence that he acted without fault or that his actions were reasonable). As

       such, the trial court was entitled to credit Bingham’s testimony and find that

       Fitzgerald did not act out of a reasonable fear or apprehension of bodily harm.


[20]   In sum, although we conclude that Bingham’s so-called “citizen’s arrest” of

       Fitzgerald was unlawful, we conclude that the trial court did not err in finding

       that the State presented sufficient evidence to rebut Fitzgerald’s self-defense

       claim. Accordingly, we affirm Fitzgerald’s conviction for Class C felony

       intimidation.


[21]   The judgment of the trial court is affirmed.


       Najam, J., and Mathias, J., concur.




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