MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                             Jul 15 2016, 9:44 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jack Quirk                                               Gregory F. Zoeller
Muncie, Indiana                                          Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Jesse T. Buchanan,                                       July 15, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A04-1506-CR-712
        v.                                               Appeal from the Delaware Circuit
                                                         Court
State of Indiana,                                        The Honorable Marianne L.
Appellee-Plaintiff                                       Vorhees, Judge
                                                         Trial Court Cause No.
                                                         18C01-9304-CF-26



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-712 | July 15, 2016       Page 1 of 9
                                            Case Summary
[1]   Jesse T. Buchanan (“Buchanan”) was convicted of Battery, as a Class C felony,

      in 1994.1 We granted him permission to pursue a belated appeal of his

      conviction under Post-Conviction Rule 2.


[2]   We affirm.



                                                     Issues
[3]   Buchanan raises a single issue for our review, whether there was sufficient

      evidence from which the trial court could conclude that the State rebutted his

      claim of self-defense.


[4]   In its brief, the State raises a threshold issue, whether Buchanan’s challenge to

      the sufficiency of the evidence is barred as res judicata.



                             Facts and Procedural History
[5]   In the spring of 1993, Garrett Rowe (“Rowe”) was dating Buchanan’s sister.

      Rowe had struck Buchanan’s sister, and she told her mother that Rowe

      intended to do the same to Buchanan. Buchanan became aware of the apparent




      1
       Ind. Code § 35-42-2-1(a)(3) (1993). Because of the age of Buchanan’s conviction, we refer throughout to the
      substantive provisions of the Indiana Code applicable at the time of trial.

      Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-712 | July 15, 2016              Page 2 of 9
      threat, and eventually Rowe became aware that Buchanan had decided to look

      for him.


[6]   On April 21, 1993, Rowe was at the home of Herman Jeeters, a known spot for

      people to get together to drink and have a good time. Rowe and a friend were

      smoking cigarettes on the front porch of the home when Buchanan’s car

      stopped in front of the house. Seeing Buchanan pull up, and aware that

      Buchanan was looking for him, Rowe thought, “I guess it’s time to fight” (Tr.

      at 14), and started to walk toward Buchanan. Buchanan got out of the car, and

      the two men were about twenty to twenty-five feet apart.


[7]   Buchanan said, “man, why you hitting my sister?” (Tr. at 14-15.) Rowe started

      to reply when Buchanan began to fire his gun. Rowe turned to run. Buchanan

      fired between four or six shots. Two of the bullets struck Rowe’s right leg: one

      struck the calf, the other struck the thigh. Buchanan then drove away.


[8]   On April 22, 1993, the State charged Buchanan with one count of Aggravated

      Battery, as a Class B felony.2 A bench trial was conducted on April 5, 1994. At

      the conclusion of the trial, the court found Buchanan not guilty of Aggravated

      Battery, but instead found him guilty of Battery. On May 5, 1994, the trial

      court conducted a sentencing hearing, entered judgment against Buchanan, and

      took the matter under advisement. On July 14, 1994, the trial court sentenced

      Buchanan to two years imprisonment with credit for time served, and ordered



      2
          I.C. § 35-42-2-1.5 (1991).


      Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-712 | July 15, 2016   Page 3 of 9
       the remainder Buchanan’s sentence served through community corrections.

       The court also ordered Buchanan to pay restitution to Rowe for his medical

       expenses.


[9]    On February 16, 1995, Buchanan’s community corrections placement was

       revoked, and he was ordered to serve the remainder of his term in the Indiana

       Department of Correction. He subsequently completed his sentence and was

       discharged from the Department of Correction on September 5, 1995.


[10]   In the ensuing two decades, Buchanan, proceeding pro se, sought on several

       occasions to have his conviction vacated or reversed, including requests to file a

       belated appeal and a petition for post-conviction relief. In 2009, Buchanan was

       denied post-conviction relief.


[11]   On May 21, 2015, Buchanan sought permission from the Delaware Circuit

       Court No. 1 to file a belated notice of appeal under Post-Conviction Rule 2, and

       to file a belated appeal from the denial of his petition for post-conviction relief

       and an associated motion to correct error. The court granted Buchanan

       permission to seek a belated appeal on May 26, 2015, and Buchanan filed his

       notice of appeal on June 16, 2015. On June 22, 2015, this Court notified the

       trial court that the scope of any appeal would be limited only to a direct appeal

       from the conviction in 1994. Counsel was subsequently appointed for

       Buchanan. This appeal ensued.



                                  Discussion and Decision

       Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-712 | July 15, 2016   Page 4 of 9
            Whether Buchanan’s Contentions are Barred as Res
                               Judicata
[12]   In its appellee’s brief, the State contends as a threshold issue that Buchanan’s

       designated issue on appeal is barred because he raised his sufficiency challenge

       as a free-standing issue in post-conviction proceedings. Characterizing

       Buchanan as in the “reverse” position of one who attempts in post-conviction

       proceedings to re-litigate issues available for and/or presented upon direct

       appeal (State’s Br. at 12), the State argues that claim preclusion bars

       Buchanan’s presentation of the sufficiency question in the instant appeal.


[13]   For a claim to be barred as res judicata under claim preclusion, four

       requirements must be met:


               (1) the former judgment must have been rendered by a court of
               competent jurisdiction; (2) the former judgment must have been
               rendered on the merits; (3) the matter now in issue was, or could
               have been, determined in the prior action; and (4) the
               controversy adjudicated in the former action must have been
               between the parties to the present suit or their privies.


       Wright v. State, 881 N.E.2d 1018, 1022 (Ind. Ct. App. 2008) (quoting Afolabi v.

       Atl. Mortg. & Inv. Corp., 849 N.E.2d 1170, 1173 (Ind. Ct. App. 2006)).


[14]   The State is correct that Buchanan is in some sense in an inverse position from

       the typical post-conviction petitioner. This, however, does not in itself result in

       claim preclusion. The State contends that the post-conviction court, in

       considering Buchanan’s ineffective assistance of counsel claims, necessarily


       Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-712 | July 15, 2016   Page 5 of 9
       evaluated the question of the sufficiency of the evidence and, on the merits,

       determined that issue in an adverse manner. As a result, the State suggests, the

       designated issue on appeal is barred.


[15]   This approach puts the cart before the horse. In a post-conviction proceeding,

       the petitioner cannot raise freestanding questions for the trial court’s review.

       Rather, the scope of a post-conviction procedure is generally limited to the

       grounds set forth under Post-Conviction Rule 1(1)(a). Timberlake v. State, 753

       N.E.2d 591, 597-98 (Ind. 2001) (observing “most free-standing claims of error

       are not available in a post-conviction proceeding because of the doctrines of

       waiver and res judicata). The post-conviction court here recognized this

       limitation and declined to address directly the merits of the sufficiency claim:

               The “fundamental error” doctrine does not apply in this case.
               Buchanan could have challenged his conviction in a direct appeal
               and did not do so. This petition is not based on newly-
               discovered evidence. Therefore, the Court declines to review the
               sufficiency of the evidence for Buchanan’s conviction under the
               “fundamental error” doctrine.


       (App’x at 266.)


[16]   The post-conviction court elsewhere in its order addressed issues relating to

       witness credibility, but it did so in considering a collateral attack upon the

       conviction on the basis of ineffectiveness of trial counsel. The post-conviction

       court did not, however, directly address the merits of Buchanan’s sufficiency




       Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-712 | July 15, 2016   Page 6 of 9
       claim, which Buchanan never presented upon a direct appeal. 3 Rather, this is

       the direct appeal. The merits of the sufficiency claim were not addressed by the

       post-conviction court, thus precluding a conclusion that Buchanan’s claim on

       appeal is res judicata.


[17]   We thus conclude that Buchanan’s sufficiency claim is not barred as res judicata,

       and proceed to consider the merits of his challenge.


                  Sufficiency of the Evidence as to Self-Defense
[18]   Buchanan’s challenge to his conviction is that there was insufficient evidence

       from which the trial court judge could conclude beyond a reasonable doubt that

       the State disproved his self-defense claim. We review such challenges under the

       same standard as any sufficiency of the evidence claim. Boyer v. State, 883

       N.E.2d 158, 162 (Ind. Ct. App. 2008). We will not disturb the judgment if

       there is sufficient evidence of probative value to support the trier of fact’s

       conclusion. Id. Thus, we will reverse “only if no reasonable person could say

       the State disproved self-defense beyond a reasonable doubt.” Id. (citing Taylor

       v. State, 710 N.E.2d 921, 924 (Ind. 1999)). In conducting our review, we neither

       reweigh evidence nor judge witness credibility. Id.




       3
         Indeed, had the post-conviction court reached the merits of the claim, the court would have stepped outside
       the purview of its authority under our Post-Conviction Rules.

       Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-712 | July 15, 2016               Page 7 of 9
[19]   At the time of Buchanan’s conviction, the Indiana Code defined self-defense as

       follows:


               A 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.
               However, a person is justified in using deadly force only if he
               reasonably believes that that force is necessary to prevent serious
               bodily injury to himself or a third person or the commission of a
               forcible felony.


       I.C. § 35-41-3-2(a) (1979). When a defendant raises a self-defense claim, “the

       State must disprove at least one of the following elements beyond a reasonable

       doubt: 1) the defendant was in a place where she had a right to be; 2) the

       defendant was without fault; and 3) the defendant had a reasonable fear or

       apprehension of bodily harm.” Boyer, 883 N.E.2d at 162 (citing White v. State,

       699 N.E.2d 630, 635 (Ind. 2009)). The State may accomplish this by

       affirmatively showing the defendant did not act to defend himself or by relying

       on evidence elicited in its case-in-chief. Id.


[20]   The evidence that favors the judgment is that Buchanan and Rowe were aware

       that each wished to harm the other. While Rowe and a friend were sitting on

       the porch of Herman Jeeters’s house, Buchanan’s car stopped and Buchanan

       opened the door and got out of the vehicle. Rowe testified that as the two men

       approached one another, Buchanan had an Army jacket over one of his hands.

       That hand was already holding a gun. Buchanan admitted during his testimony

       that he had obtained the gun only the day before the shooting.


       Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-712 | July 15, 2016   Page 8 of 9
[21]   Rowe testified that Buchanan said, “man, why you hitting my sister?,” and that

       he was unable to respond with more than “hold it, Ty. It ain’t like—” before

       Buchanan started firing the gun. (Tr. at 14-15.) Several witnesses testified that

       Buchanan fired the gun from four to six times, and a police investigator

       retrieved four spent bullet casings of matching caliber from the scene. Rowe

       testified that one of the shots landed near his feet and that he ran away in

       response, but Buchanan kept shooting, twice striking Rowe’s right leg—once in

       the calf, and once in the thigh. Firing multiple shots undercuts a claim of self-

       defense. Cooper v. State, 854 N.E.2d 831, 838 (Ind. 2006).


[22]   Taken together, this is sufficient evidence from which a reasonable fact-finder

       could conclude that Buchanan acted as an aggressor and, whatever his

       concerns, was not in reasonable fear or apprehension of bodily harm from

       Rowe. To the extent Buchanan directs our attention to other testimony, we

       decline his invitation to reweigh the evidence.



                                               Conclusion
[23]   Buchanan’s appeal is not barred as res judicata. There was sufficient evidence

       from which the trial court could conclude beyond a reasonable doubt that

       Buchanan did not act in self-defense and that the State carried its burden of

       disproving Buchanan’s claim in that regard.


[24]   Affirmed.


       Bradford, J., and Altice, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 18A04-1506-CR-712 | July 15, 2016   Page 9 of 9
