MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                              FILED
regarded as precedent or cited before any                                      Jul 23 2019, 9:05 am
court except for the purpose of establishing
                                                                                   CLERK
the defense of res judicata, collateral                                        Indiana Supreme Court
                                                                                  Court of Appeals
estoppel, or the law of the case.                                                   and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Rory Gallagher                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Richard Darnell Leslie,                                   July 23, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-116
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt Eisgruber,
Appellee-Plaintiff                                        Judge
                                                          The Honorable Steven Rubick,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49G01-1802-F5-5969



Altice, Judge.


                                          Case Summary

Court of Appeals of Indiana | Memorandum Decision 19A-CR-116 | July 23, 2019                           Page 1 of 7
[1]   Richard Leslie appeals his conviction for Level 5 felony battery by means of a

      deadly weapon. He claims that the State failed to sufficiently rebut his claim of

      self-defense.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Late in the evening on February 17, 2018, Sharon Leslie (Sharon) came home

      from work and sat in the living room to relax. Leslie, Sharon’s husband of ten

      years, was intoxicated and also in the living room. He began a discussion that

      Sharon did not like, so she stood up and walked into the kitchen. Leslie

      responded by telling Sharon that when he speaks to her, she needs to look at

      him. Sharon returned and sat on the couch with Leslie.


[4]   As she sat on the couch, Sharon prepared to smoke marijuana. Leslie became

      upset and said he was going to call the police. He then hit the panic button on

      his key fob to alert the alarm company to call the police, but each time, Sharon

      hit the same button on her key fob to turn off the alarm. This happened a few

      times. Leslie then stood up and his phone fell to the ground. He reached to

      take the unlit marijuana blunt out of Sharon’s hand, and she resisted. They

      started to “scuffle.” Transcript at 10. The two wrestled over the blunt and

      eventually ended up on the floor in the kitchen, where Sharon got the upper

      hand. Leslie told Sharon that his chest hurt, he was tired, and he could not

      breathe, so she stopped fighting with him and the two got up off the floor.

      Leslie went into the living room, and Sharon stayed in the kitchen.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-116 | July 23, 2019   Page 2 of 7
[5]   After about five minutes, Sharon started to make her way back to the couch

      because she believed the argument was over. In the meantime, however, Leslie

      had obtained a handgun, which he pointed at her as he cursed and called her

      names. While pointing the gun, Leslie “clicked the lever…back and the bullets

      was [sic] just popping out” onto the floor. Id. at 11-12. Sharon turned her back

      and retrieved her phone from the laundry room, where Leslie had previously

      thrown it while they argued. She dialed 911 with the phone on speakerphone.

      When the 911 operator answered, Leslie struck Sharon in the back of the head

      with the gun. Sharon then fought with Leslie over the gun and tried to hold the

      “nozzle part of the gun” down to protect herself from being shot. Id. at 14.

      Leslie continued to hold the handle of the gun. During the struggle, Leslie hit

      Sharon on the forehead with the gun, and Sharon struck him with her hands.


[6]   Indianapolis Metropolitan Police Department officers entered the home

      through an open garage door. They had guns drawn, as dispatch had warned

      that there was a gun involved in the dispute. The officers announced their

      presence, and Sharon yelled, “He’s in here.” Id. at 29. When Officer Larry

      Lannigan, one of the responding officers, came through the kitchen, he saw

      Sharon holding Leslie against the bathroom wall. Leslie was holding the gun in

      his right hand, and Sharon had her left hand on the barrel of the gun. The

      officers yelled, “Drop the gun.” Id. at 30. Leslie released the handle of the gun

      and then Sharon dropped it on the ground away from Leslie.


[7]   The officers placed Leslie under arrest. Leslie was intoxicated at the time of his

      arrest, and he told Officer David Hutson, after being Mirandized, that “he had

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-116 | July 23, 2019   Page 3 of 7
      been drinking and that he was having trouble remembering what had

      happened.” Id. at 35. Leslie had a few scratches on his face, while Sharon had

      “a really large knot on the right side of her forehead”, lacerations on her right

      wrist, and a knot on the back of her head. Id. at 31.


[8]   The State charged Leslie with Level 5 felony battery by means of a deadly

      weapon (Count I), Level 6 felony domestic battery resulting in moderate bodily

      injury (Count II), Level 6 felony battery resulting in moderate bodily injury

      (Count III), and Level 6 felony pointing a firearm (Count IV). At the bench

      trial on November 28, 2018, Sharon and the two responding officers testified.

      Leslie did not testify but his counsel asserted a claim of self-defense. The trial

      court expressly rejected the self-defense claim and found Leslie guilty of Counts

      I and IV and noted that Counts II and III merged into Count I. At the

      sentencing hearing on December 18, 2018, the trial court merged Count IV into

      Count I as well. Thus, the court entered judgment of conviction only on Count

      I. The trial court sentenced Leslie to two years, all suspended except for time

      served, and one year of probation. Leslie now appeals.


                                          Discussion & Decision


[9]   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 claim.

      Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We consider only the

      probative evidence and reasonable inferences supporting the trial court’s

      decision. Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-116 | July 23, 2019   Page 4 of 7
       denied. We neither reweigh the evidence nor judge the credibility of witnesses.

       Wilson, 770 N.E.2d at 801. The trier of fact is entitled to determine which

       version of the incident to credit and is the sole judge of the effect that any

       discrepancies or contradictions might have on the outcome of the case. Scott v.

       State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied.


[10]   Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,

       984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “A person is justified in

       using reasonable force against any other person to protect the person … from

       what the person reasonably believes to be the imminent use of unlawful force.”

       Ind. Code § 35-41-3-2(c). The person, however, is not justified in using force if,

       among other things, “the person has entered into combat with another person

       or is the initial aggressor unless the person withdraws from the encounter and

       communicates to the other person the intent to do so and the other person

       nevertheless continues or threatens to continue unlawful action.” I.C. § 35-41-

       3-2(g)(3).


[11]   To prevail on his self-defense claim, Leslie was required to show that he: “(1)

       was in a place where he had a right to be; (2) acted without fault; and (3) was in

       reasonable fear o[r] apprehension of bodily harm.” Richardson v. State, 79

       N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied. When a claim of self-

       defense finds support in the evidence, the State bears the burden of negating at

       least one of the necessary elements. 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 beyond a reasonable doubt. Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-116 | July 23, 2019   Page 5 of 7
[12]   There is no question that Leslie was in a place where he had a right to be – his

       own home, but the evidence favorable to the conviction establishes that he did

       not act without fault. Rather, Leslie used physical force to attempt to remove

       the marijuana blunt from Sharon’s hand. He then engaged in mutual combat –

       a wrestling match – with her that moved from the living room to the kitchen

       where Sharon managed to pin him to the ground. See id. (“A person who

       provokes, instigates, or participates willingly in the violence does not act

       without fault for the purposes of self-defense.”). The scuffle then ended with

       Sharon staying in the kitchen and Leslie going into the living room. Sharon

       thought the fight was over, but about five minutes later, Leslie came toward her

       with a gun. Sharon retrieved her phone and called 911. When the 911 operator

       came on the line, Leslie struck Sharon in the back of the head with the gun and

       another struggle – this time over the gun – ensued until the police arrived.


[13]   The above evidence clearly negates any claim that Leslie acted without fault.

       Moreover, a reasonable trier of fact could determine that at the time Leslie

       struck Sharon with the gun, while she was on the phone with the 911 operator,

       he was not in reasonable fear of bodily harm. 1 Leslie’s arguments to the

       contrary amount to improper requests for us to reweigh the evidence.




       1
         Leslie also asserts, for the first time on appeal, that he was justified in using reasonable force to effect a
       citizen’s arrest for Level 5 felony criminal confinement and detain Sharon until the police arrived. Waiver
       aside, we observe that Sharon was calling 911 at the time Leslie struck her with the gun and he was the only
       one armed with a gun. On these facts, we find unavailing Leslie’s belated claim that the force he used was
       reasonably necessary to accomplish a citizen’s arrest of his wife.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-116 | July 23, 2019                          Page 6 of 7
[14]   Judgment affirmed.


       Brown, J. and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-116 | July 23, 2019   Page 7 of 7
