MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D), this                                Apr 26 2018, 8:50 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                             CLERK
                                                                           Indiana Supreme Court
purpose of establishing the defense of res judicata,                          Court of Appeals
                                                                                and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Troy D. Warner                                            Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana

                                                          Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Brock Jerel Perry,                                        April 26, 2018

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          71A03-1711-CR-2752
        v.                                                Appeal from the St. Joseph Superior
                                                          Court.
                                                          The Honorable Julie Verheye,
State of Indiana,                                         Magistrate.
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          71D05-1701-CM-484




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018              Page 1 of 6
                                             Statement of the Case
                                                                                                       1
[1]   Brock Jerel Perry appeals from his conviction of Class B misdemeanor battery,

      contending that the State presented insufficient evidence to negate his claim of

      self defense. We affirm.


                                                     Issue
[2]   We restate the issue presented by this appeal as follows: whether the State

      presented sufficient evidence to negate Perry’s claim of self defense.


                                   Facts and Procedural History
[3]   On December 28, 2016, Racquel Jenkins asked her boyfriend, Willie Evins, to

      bring some food to her house and relax for the evening after he finished

      working at his catering job. Evins pulled his truck into Jenkins’ driveway and

      noticed that the vehicle of Jenkins’ former boyfriend, Perry, was parked in the

      driveway. Perry was the father of two of Jenkins’ four children and came to her

      house at various times to visit them. At Evins’ request, Jenkins came outside to

      discuss the situation. After their discussion, Evins decided to leave and come

      back later.


[4]   Twenty minutes later, Jenkins called Evins to tell him that Perry had left and to

      ask Evins to return to her home. Evins returned to Jenkins’ home and when he

      pulled his truck into her driveway, Perry pulled his vehicle in behind him,



      1
          Ind. Code § 35-42-2-1(c) (2016).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018   Page 2 of 6
      blocking his truck in the driveway. Evins testified that he told Jenkins, “I don’t

      do drama. I am just going to leave the food and you can have it, whatever. I

      don’t care.” Tr. Vol. II, p. 11.


[5]   At that point Perry exited his own vehicle and started “talking crazy” to Evins.

      Id. at 12. Perry also acted as if he had a gun in his jacket pocket. Evins tried to

      get back in his truck. Perry, however, whose hand remained in his pocket,

      “snatched the door open.” Id. at 13. Evins thought that Perry was going to

      shoot him. Evins saw his mother’s cane in the passenger’s seat area of his

      truck, grabbed the cane and thrust it toward Perry, attempting to protect

      himself. Perry slammed the door on Evins’ foot multiple times as Evins

      struggled to remove his foot from the running board of his truck and to close the

      door.


[6]   Neighbors called the police. Evins suffered a broken foot from Perry’s attack on

      him and needed surgery to repair his injuries.


[7]   On January 27, 2017, the State charged Perry with one count of Class B

      misdemeanor battery and one count of Class B misdemeanor disorderly

      conduct. Perry’s bench trial was held on November 9, 2017, after which the

      trial court found him guilty of Class B misdemeanor battery, but found him not

      guilty of disorderly conduct due to double jeopardy concerns. Perry was

      sentenced to thirty days suspended and one hundred eighty days on probation

      and was ordered to pay restitution in the amount $1,433.82.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018   Page 3 of 6
                                    Discussion and Decision
[8]    To establish that Perry committed battery as a Class B misdemeanor, the State

       was required to prove beyond a reasonable doubt that Perry, knowingly or

       intentionally, touched Evins in a rude, insolent, or angry manner. Ind. Code §

       35-42-2-1. The facts are sufficient to support Perry’s conviction.


[9]    Perry’s challenge on appeal is that the State failed to negate his claim of self

       defense. A claim of self defense can serve as a legal justification for an

       otherwise criminal act. Burnside v. State, 858 N.E.2d 232, 239 (Ind. Ct. App.

       2006). Indiana Code section 35-41-3-2 (2013) provides that a person may use

       reasonable force against another to protect himself from what he reasonably

       believes to be the imminent use of unlawful force.


[10]   To prevail on a claim of self defense, a defendant must show: (1) he was in a

       place where he had a right to be; (2) he did not provoke, instigate, or participate

       willingly in the violence; and (3) he had a reasonable fear of death or great

       bodily harm. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). Once self

       defense has been raised, the State must negate at least one of the necessary

       elements either by rebutting the evidence directly with an affirmative showing

       the defendant did not act in self defense, or by simply relying on the evidence in

       its main case. Cole v. State, 28 N.E.3d 1126, 1137 (Ind. Ct. App. 2015).


[11]   When reviewing a challenge to the sufficiency of the evidence to rebut a claim

       of self defense, we use the same standard as for any claim of insufficient

       evidence. Id. at 1136-37. We neither reweigh the evidence nor judge the

       Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018   Page 4 of 6
       credibility of the witnesses; rather, we look solely to the evidence most

       favorable to the judgment with all reasonable inferences to be drawn therefrom.

       Miller v. State, 720 N.E.2d 696, 699 (Ind. 1999). If there is sufficient evidence of

       probative value to support the conclusion of the trier of fact, the verdict will not

       be disturbed. Cole, 28 N.E.3d at 1137. Where a claim of self defense has been

       rejected by the finder of fact, the resulting conviction will be reversed only if no

       reasonable person could say that self defense was negated by the State beyond a

       reasonable doubt. Wilson, 770 N.E.2d at 800-01.


[12]   Here, the State established that Perry instigated the altercation causing Evins’

       injuries. Evins left when he observed Perry’s vehicle in Jenkins’ driveway. He

       returned later only after Jenkins had informed him that Perry had left. After

       Evins returned, Perry blocked Evins’ truck in the driveway and confronted him,

       “talking crazy,” and pretending to have a weapon in his pocket, making “pistol

       play movements.” Tr. Vol. II, p. 12. The State sufficiently established that

       Perry instigated the altercation and was a willing participant, thus negating his

       claim of self defense.


[13]   Additionally, a valid claim of self defense requires that the force a person uses

       must be proportionate to the requirements of the situation. Weedman v. State, 21

       N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied. The claim will fail if the

       person uses force that is disproportionate to that necessary under the

       circumstances. Id. Here, Perry not only instigated and willingly participated in

       the altercation, he responded to a poke from a cane after his instigation by



       Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018   Page 5 of 6
       repeatedly slamming Evins’ foot with the door of Evins’ truck, causing Evins’

       foot to break. There was sufficient evidence to rebut the claim of self defense.


                                                Conclusion
[14]   In light of the foregoing, we affirm Perry’s conviction.


[15]   Affirmed.


       Barnes, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018   Page 6 of 6
