MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Aug 30 2019, 9:10 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Paul J. Podlejski                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Grover McPhaul,                                          August 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-34
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela Warner
Appellee-Plaintiff.                                      Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1809-F5-2461



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019                 Page 1 of 14
                               Case Summary and Issues
[1]   Following a jury trial, Grover McPhaul was convicted of two counts of battery

      resulting in bodily injury to a public safety official, both Level 5 felonies, and

      one count of criminal mischief, a Class B misdemeanor. The trial court

      sentenced McPhaul to an aggregate term of six years, with three years executed

      in the Indiana Department of Correction (“DOC”) and three years suspended.

      McPhaul appeals and raises two issues which we restate as: (1) whether the trial

      court erred in denying his motion to dismiss due to the State’s alleged failure to

      preserve certain evidence; and (2) whether the trial court abused its discretion

      by refusing to give the jury an instruction on self-defense. Concluding the trial

      court did not err in either respect, we affirm.



                            Facts and Procedural History
[2]   The Madison County Correctional Complex (“MCCC”) is a jail overflow

      facility in Anderson, Indiana, and contains three dormitories where inmates are

      housed. Each dormitory is comprised of thirty to fifty-one bunks, several long

      tables with benches, sinks, and a bathroom with an open doorway and

      walkway. The inmates’ meals are served on reusable “big hard plastic” trays,

      which are placed on a cart and then wheeled into the dormitory area where the

      inmates line up to receive their meal. Transcript of Evidence, Volume II at 44.

      Inmates are permitted to eat anywhere in the dormitory. However, once

      finished, the inmates are required to stack the trays in a specific location. In

      dormitory two, inmates stack their trays next to the door, which is right next to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019   Page 2 of 14
      the dorm’s control room. The control room has a one-way mirror window,

      control panel, and five monitors displaying live footage of the dorm from

      several different angles, excluding the interior of the bathroom.


[3]   On August 20, 2018, McPhaul was an inmate housed in dormitory two at

      MCCC. Around 4:58 p.m., Correctional Officer Jared Henderson was inside

      the dorm’s control room when he heard a “thud against the window.” Id. at 27.

      To determine the cause of the noise, Officer Henderson rewound the security

      footage a “short time” and observed McPhaul throw his dinner tray against the

      window of the control room, behavior that violates MCCC rules. Id. at 28.

      The footage showed McPhaul walked to a sink, proceeded to his bunk, grabbed

      a roll of toilet paper, and went into the bathroom. After viewing the footage,

      Officer Henderson requested via radio that McPhaul be removed from the floor.

      Correctional Officers Nick Robinson and Austin Bentley indicated they would

      respond.


[4]   Upon entering the dorm, the officers were unaware of McPhaul’s location.

      Officer Bentley proceeded toward the bunks while Officer Robinson went

      straight into the bathroom area. When Officer Robinson entered, he observed

      “McPhaul getting ready to use the bathroom,” so he walked up to McPhaul and

      asked “if he could cuff up[.]” Id. at 47. McPhaul “just blew it off and walked

      past” Officer Robinson and proceeded to exit the bathroom. Id. at 48. To

      prevent McPhaul from leaving, Officer Robinson grabbed McPhaul’s right arm

      “to secure him in handcuffs[,]” but McPhaul physically pulled away. Id. at 49.

      Officer Robinson attempted to pull McPhaul back toward him. Officer Bentley,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019   Page 3 of 14
      who had been unable to locate McPhaul in the bunk area, went to the bathroom

      area where he initially observed McPhaul walk ahead of Officer Robinson out

      of the bathroom and pull away as Officer Robinson tried to get him in

      handcuffs.


[5]   Therefore, Officer Bentley immediately assisted by making contact with

      McPhaul, and all three fell to the ground in the walkway of the bathroom. A

      physical struggle to restrain McPhaul ensued. Officer Bentley secured

      McPhaul’s upper body and Officer Robinson attempted to secure his legs;

      however, McPhaul was “kicking frantic[ally]” and, at some point, drew his arm

      back as if he intended to punch Officer Bentley. Id. at 50. Officer Robinson

      grabbed McPhaul’s arm before McPhaul was able to take a swing. McPhaul

      took Officer Bentley’s glasses from his face and bent them. At some point,

      McPhaul “started going for [Officer Bentley’s] right eye[.]” Id. at 78. Officer

      Bentley testified that he “could feel [McPhaul’s] finger . . . applying pressure to

      . . . [his] right eye.” Id.


[6]   The officers repeatedly ordered McPhaul to roll over on his stomach and place

      his hands on his back, but McPhaul did not comply and continued to forcibly

      resist their attempts to restrain him. Officer Garret arrived and delivered a

      defensive tactic to McPhaul enabling the officers to move McPhaul onto his

      stomach. Eventually, through the joint effort of the officers, McPhaul was

      restrained and escorted to an isolation cell. As a result of the altercation,

      Officer Robinson sustained an abrasion to his face and suffered from a

      headache, and Officer Bentley had some redness to his right eye.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019   Page 4 of 14
[7]   MCCC Supervisor Mason Brizendine, who had finished his shift at 4:00 p.m.

      that day, received a phone call notifying him of the incident with McPhaul.

      The following morning, Brizendine reviewed the incident reports from the

      officers involved in the altercation, as well as the video footage involving

      McPhaul. Brizendine recorded the footage of the incident, downloaded the

      footage from 4:57 p.m. to 5:00 p.m. to a disc, and provided it to the Madison

      County Sheriff’s Office. McPhaul filed a grievance alleging that, at 4:15 p.m.

      on August 20, 2018, he had informed an officer that he wished to speak to a

      supervisor to which the officer responded, “get away from my window before

      [I] throw you in isolation and my name is irrelevant[.]” Exhibits at 11.

      McPhaul also alleged that he was assaulted during the charged incident and

      suffered injuries. On September 12, 2018, McPhaul submitted a request to

      Brizendine for “all documents[,] recordings related to the incident – assault that

      occurred on 8-20-18[.]” Id. at 13.


[8]   The State subsequently charged McPhaul with two counts of battery resulting in

      bodily injury to a public safety official, Level 5 felonies, and criminal mischief,

      a Class B misdemeanor. Notably, before trial, McPhaul filed a Notice of

      Meritorious Self Defense, a Motion for Specific Discovery requesting the full

      video footage from the date of the incident, and a Motion to Preserve Video

      Evidence. The day before trial, the trial court held a status hearing during

      which defense counsel alleged that the MCCC failed to preserve full video

      evidence from August 20. Following voir dire, the trial court held a hearing to

      address McPhaul’s pending issues during which Brizendine testified that he


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019   Page 5 of 14
preserved video evidence from 4:57 p.m. to 5:00 p.m. on August 20, which was

consistent with the incident reports he had received from the officers involved

in the altercation. However, footage automatically deletes after roughly twenty-

nine to thirty-two days unless otherwise downloaded or preserved. Thus, any

other video footage from August 20, including the interaction that McPhaul

alleged had occurred forty-five minutes prior to the charged incident did not

exist. McPhaul verbally moved to dismiss and for a mistrial due to Brady

violations, namely failure to preserve all video evidence from that day. The

trial court took the matter under advisement but ultimately denied McPhaul’s

Motion to Dismiss and/or for Mistrial, reasoning:


        The Court again continues to see this as an issue that is – could
        be attack of the investigation, what was done, what wasn’t done,
        which certainly can go to the strength and credibility of the
        State’s case. . . . [A] lot of the arguments that [defense counsel]
        make[s] . . . are appropriate in the sense in how you wish to cross
        examine this case and how you intend on behalf of your client to
        possibly question the cred[ibility] of this case. The Court sees
        these being pertinent to those issues rather than this being viewed
        through a Brady examination.


Tr., Vol. I at 240. The matter proceeded to jury trial and at the conclusion

thereof McPhaul tendered an instruction on self-defense, which the trial court

refused to give. McPhaul was found guilty as charged and sentenced to an

aggregate sentence of six years, with three years executed in the DOC and three

years suspended. McPhaul now appeals. Additional facts will be provided as

necessary.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019   Page 6 of 14
                                   Discussion and Decision
                                         I. Motion to Dismiss
[9]    McPhaul argues that the “trial court abused its discretion in denying [his]

       motion to dismiss and motion for mistrial.” Appellant’s Brief at 8 (emphasis

       added). The State, on the other hand, argues that the trial court ruled on a

       motion for mistrial, not a motion to dismiss, because, when asked by the trial

       court, defense counsel clarified that it was a motion for a mistrial. We disagree

       with the State and conclude that McPhaul moved to dismiss his case.


[10]   After voir dire and outside the presence of the jury, the trial court held a hearing

       to address McPhaul’s pending issues before beginning the presentation of

       evidence. When asked whether McPhaul filed a formal motion to dismiss,

       defense counsel clarified, “No, actually Judge [it is] a Motion for Mistrial

       caused by Brady Issues.” Tr., Vol. I at 156.1 However, throughout the

       remainder of the hearing, McPhaul essentially argued for dismissal of his case

       due to the alleged failure to preserve evidence, evidence that no longer exists

       and that he claims would have demonstrated that he acted in self-defense.

       Ultimately, the trial court denied what it characterized as McPhaul’s “Motion

       to Dismiss and/or for a Mistrial.” Id. at 231. Although the trial court




       1
         In Brady v. Maryland, the United States Supreme Court held that “the suppression by the prosecution of
       evidence favorable to an accused upon request violates due process where the evidence is material either to
       guilty or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87
       (1963).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019                    Page 7 of 14
       characterized it as such, a motion to dismiss for failure to preserve evidence and

       a motion for a mistrial are analyzed differently. On appeal, McPhaul argues

       the State’s “failure to preserve the requested [video] evidence which was

       potentially useful to [him] was in bad faith and a clear violation of his due

       process rights that warranted a dismissal of this cause.” Appellant’s Br. at 11.

       Ultimately, the substance of McPhaul’s argument and the authority he cites

       leads this court to believe the relief McPhaul sought was available only through

       a motion to dismiss. As such, we now evaluate whether the trial court erred in

       denying his motion.


[11]   We review a trial court’s denial of a motion to dismiss for an abuse of

       discretion. Ceaser v. State, 964 N.E.2d 911, 918 (Ind. Ct. App. 2012), trans.

       denied. We therefore reverse only where the trial court’s decision is clearly

       against the logic and effects of the facts and circumstances before it. Id.


[12]   Again, the crux of McPhaul’s argument is that he was denied due process

       requiring dismissal of the case because MCCC acted in bad faith by failing to

       preserve all requested video evidence from August 20, including video of an

       alleged encounter forty-five minutes prior to the charged incident. In Arizona v.

       Youngblood, the United States Supreme Court held that “unless a criminal

       defendant can show bad faith on the part of the police, failure to preserve

       potentially useful evidence does not constitute a denial of due process of law.”

       488 U.S. 51, 58 (1988). “Evidence is merely potentially useful if ‘no more can

       be said than that it could have been subjected to tests, the results of which might



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019   Page 8 of 14
       have exonerated the defendant.’” State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct.

       App. 2010) (quoting Youngblood, 488 U.S. at 57).


[13]   McPhaul claims the prior encounter “ultimately led to him being assaulted by

       corrections officers” in the charged incident and this evidence would have been

       potentially useful to him at trial. Appellant’s Br. at 10. However, we fail to see

       how evidence of an alleged encounter that occurred forty-five minutes prior to

       the charged incident provides any evidence that McPhaul was innocent or

       supports his theory that he acted in self-defense in the later altercation that was

       instigated when he repeatedly failed to comply with commands and physically

       resisted, causing injury to the officers. See Durrett, 923 N.E.2d at 453.

       Nonetheless, McPhaul attempts to demonstrate the State’s2 bad faith by

       characterizing the timing of the charges as suspicious because they were filed

       thirty-five days after the incident and just a few days after video evidence not

       saved to a disc would be automatically deleted. Additionally, McPhaul asserts

       that Brizendine decided to preserve only the three-minute portion of the footage

       he determined to be relevant and for the sole purpose of prosecuting McPhaul.


[14]   Based on our review of the record, we are unpersuaded that MCCC or the State

       acted in bad faith with respect to the video evidence. At the hearing,

       Brizendine testified that he determined what portions of the footage to record

       and save. He explained, in doing so, “My responsibility and what my priority



       2
        McPhaul argued to the trial court that the evidence was manipulated by a state actor, namely Brizendine,
       because he is paid by the State of Indiana. See Tr., Vol. I at 184, 201.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019                  Page 9 of 14
       was to clip the footage consistent with the incident that occurred. What caused

       the Officers to enter the dormitory and what ensued there after [sic].” Tr., Vol.

       I at 172. Brizendine chose to record and save the footage from 4:57 to 5:00

       p.m. because it was “consistent with the reports” he had received from the

       officers involved in the altercation. Id. at 182. He also explained that unless

       recorded, all footage captured on MCCC’s surveillance is automatically deleted

       by the system after twenty-nine to thirty-two days, depending on the camera.

       Brizendine provided the incident reports and downloaded footage to the sheriff,

       who testified that he prepared a probable cause affidavit requesting criminal

       charges based on the information Brizendine provided. With respect to the

       timing, the sheriff testified at trial that because McPhaul was already detained,

       “there was nothing . . . so pressing that [the affidavit] needed to be completed

       right away” and he decided “to prepare the paperwork on a later date[.]” Tr.,

       Vol. II at 193. Moreover, the sheriff was unaware that video footage

       automatically deletes until these proceedings began and had no reason to ask

       Brizendine to preserve additional evidence. With the evidence he had already

       received, “there was nothing else that [he] would be looking for.” Id. at 197.

       The sheriff provided the affidavit and evidence to the prosecutor’s office on

       September 7, 2018.


[15]   We acknowledge that McPhaul referenced the 4:15 p.m. incident in his

       grievance filed on August 22 and subsequently filed several requests for footage

       to be preserved before the twenty-nine to thirty-two days had passed. However,

       McPhaul’s requests specifically referenced “the incident - assault that occurred


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019   Page 10 of 14
       on 8-20-18 by your hired help[.]” Exhibits at 12, 13.3 Therefore, MCCC staff

       had no reason to believe they needed to preserve any footage before that

       incident that occurred. McPhaul has failed to establish any bad faith by MCCC

       or the State.


[16]   As previously indicated, defense counsel argued his position to the trial court.

       However, following evidence and argument at the hearing on the motion, the

       trial court ultimately denied McPhaul’s motion, explaining it disagreed that the

       alleged evidentiary issues require a Brady analysis. Instead, the trial court stated

       that it viewed the argument as an attack of the investigation, namely “what was

       done, what wasn’t done, which certainly can go to the strength and credibility

       of the State’s case.” Tr., Vol. I at 240. This is a reasonable interpretation of

       McPhaul’s motion and the applicable law. Therefore, we cannot conclude the

       trial court abused its discretion in denying McPhaul’s motion to dismiss.


                                          II. Jury Instruction
[17]   Next, McPhaul contends that the trial court erred when it refused to provide the

       jury with an instruction on self-defense. Specifically, McPhaul argues his

       proposed jury instruction was a correct statement of the law and the evidence

       presented at trial “clearly established that an instruction on self-defense was

       warranted.” Appellant’s Br. at 15. We disagree.




       3
        We also note that McPhaul filed these requests on September 7 and 12, weeks after the incident occurred
       and after Brizendine already submitted the relevant information to the sheriff.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019                 Page 11 of 14
[18]   The giving of jury instructions is a matter within the sound discretion of the

       trial court, and we review the trial court’s refusal to give a tendered instruction

       for an abuse of that discretion. Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct.

       App. 2001). An abuse of discretion occurs if the instructions, considered as a

       whole and in reference to each other, mislead the jury as to the applicable law.

       Smith v. State, 777 N.E.2d 32, 34 (Ind. Ct. App. 2002), trans. denied.


               Generally, we will reverse a trial court for failure to give a
               tendered instruction if: (1) the instruction is a correct statement of
               the law; (2) it is supported by the evidence; (3) it does not repeat
               material adequately covered by other instructions; and (4) the
               substantial rights of the tendering party would be prejudiced by
               failure to give it.


       Howard, 755 N.E.2d at 247.


[19]   “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) (2013)

       (emphasis added). A person is also justified in using reasonable force against a

       public servant in some circumstances outlined by statute. Ind. Code § 35-41-3-

       2(i) (2013). A correctional police officer is considered a public servant. Ind.

       Code § 35-41-3-2(b) (2013); Ind. Code § 35-31.5-2-185(a)(1). However, a person

       is not justified in using force against a public servant if the person reasonably

       believes the public servant is acting lawfully or engaged in the lawful execution

       of the public servant’s official duties. Ind. Code § 35-41-3-2(j)(4) (2013).



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019   Page 12 of 14
[20]   MCCC correctional officers “provide safety and security for all three . . .

       dorms[, and m]ake sure that everybody is safe[.]” Tr., Vol. II at 41. The State

       maintains that even if McPhaul provided a correct instruction, there was still

       “no evidence to support a conclusion that the correctional officers were not

       engaged in the lawful execution of their duties.” Brief of Appellee at 21. The

       evidence demonstrates that McPhaul’s behavior in throwing his tray against the

       control room window violated MCCC rules and officers were instructed to

       remove McPhaul from the dormitory floor. When Officer Robinson asked

       McPhaul to “cuff up,” he ignored the instruction, walked past Officer

       Robinson, repeatedly ignored commands, and forcibly resisted while three

       officers attempted to restrain him. Tr., Vol. II at 47. There is no doubt that the

       correctional officers were engaged in the lawful execution of their duties, as

       instructed, and the record reveals no evidence of self-defense. As such, the trial

       court did not abuse its discretion by refusing to give the jury an instruction on

       self-defense.4



                                                 Conclusion
[21]   For the reasons set forth above, we conclude the trial court did not err in

       denying McPhaul’s motion to dismiss or in refusing to give a jury instruction on

       self-defense. Accordingly, the judgment of the trial court is affirmed.




       4
        Because this issue is dispositive, we need not address whether the instruction McPhaul tendered was a
       correct statement of law.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019                 Page 13 of 14
[22]   Affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019   Page 14 of 14
