MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D), this
                                                                      Sep 14 2017, 5:39 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
collateral estoppel, or the law of the case.                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan Shipley                                             Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael Shirley, Jr.,                                    September 14, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1611-CR-2514
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Marc T. Rothenberg,
State of Indiana,                                        Judge.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         49G02-1508-MR-27612




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017      Page 1 of 14
                                          Statement of the Case
                                                                           1
[1]   Michael Shirley, Jr. appeals his conviction of murder. We affirm.


                                                    Issues
[2]   Shirley presents two issues for our review, which we restate as:

                 I. Whether there was sufficient evidence to rebut Shirley’s claim
                 of self-defense.
                 II. Whether the combination of a jury instruction and the
                 prosecutor’s statement produced fundamental error.

                                   Facts and Procedural History
[3]   In August 2015, Shirley lived with his grandmother, Mildred Woodford, and

      his two uncles, Derrick and Roderick Woodford. On August 1, 2015, Shirley

      and Roderick were at home drinking. Bernita Woodford, Mildred’s daughter,

      and her boyfriend, James Woodard, stopped by the house at approximately

      3:00 p.m. When Bernita arrived, Shirley told her he was drunk.


[4]   Bernita and James left to go to a reunion and returned at approximately 10:30

      p.m. to Mildred’s house where they picked up Derrick and took him to a store.

      When they returned from the store, two women ran from the house yelling that

      people were fighting. As the front door opened, Bernita saw Shirley and

      Roderick “tussling.” Tr. Vol. II, p. 55. Bernita saw no punches being thrown,

      and neither James nor Bernita saw any weapons. James ran into the house and



      1
          Ind. Code § 35-42-1-1 (2014).

      Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017   Page 2 of 14
      found both men “short winded” but separated and the living room in disarray.

      Id. at 27. Shirley was in the living room by the front door and Roderick was

      across the small living room near his bedroom door.


[5]   In the meantime, Bernita went around to the back of the house to Mildred’s

      room and told her to call the police. While Bernita was in the back room with

      Mildred and James was exiting the house to go back to the car, all three heard

      gunshots. James ran back into the house and saw Roderick sitting on the floor

      by the door to his bedroom; he did not see Shirley. When Bernita heard the

      gunshots, she ran into the kitchen to call the police. As she was doing so, she

      heard Shirley ask, “You motherf***ers calling the police on me?” Id. at 58.

      When Shirley said this to Bernita, he was in the dining room by the closet

      where he kept his belongings. A police search of the closet later that night

      uncovered an athletic shoe that was buried under clothing and contained a

      handgun. Testing revealed the gun was the one used to shoot Roderick.


[6]   Meanwhile, James went out to the car to tell Derrick that he believed Roderick

      had been shot. Upon re-entering the house, James saw that Roderick had

      moved into his bedroom and was in a fetal position on the bedroom floor.

      James again went to the car to tell Derrick about the situation. On his way

      back into the house, he passed Shirley who got into his truck and drove off.


[7]   When Roderick was picked up to be carried to the ambulance, a knife was

      found underneath him. Roderick was taken to the hospital where he later died

      from a gunshot wound to the abdomen.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017   Page 3 of 14
[8]    Shirley went to a friend’s house for the night, and then he and his girlfriend

       went to a motel where he was found and arrested on August 3. Based upon this

       incident, Shirley was charged with murder. At trial, Shirley claimed that he

       shot Roderick in self-defense. The jury returned a verdict of guilty, and the

       court sentenced Shirley to fifty-four years. This appeal followed.


                                    Discussion and Decision
                                              I. Self-Defense
[9]    Shirley does not dispute the fact that he shot and killed his uncle Roderick.

       Rather, he challenges the sufficiency of the evidence contending the State failed

       to rebut his claim of self-defense.


[10]   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.


[11]   In order 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



       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017   Page 4 of 14
       the defendant did not act in self-defense, or by simply relying on the evidence in

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


[12]   In 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 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. A conviction in spite of a claim of self-defense 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.


[13]   Here, the State produced sufficient evidence to rebut Shirley’s claim of self-

       defense. The evidence showed that Shirley was a willing participant in the

       altercation when he was seen by witnesses fighting with Roderick. That initial

       altercation had ended when James ran into the house and found Shirley and

       Roderick separated. Shirley was in the living room by the front door of the

       house, and Roderick was in the living room across the room just outside his

       bedroom door. James then stepped out of the house and heard the gunshots.

       When he re-entered the house, he found Roderick still in the spot by his

       bedroom door but now sitting on the floor, with no sign of Shirley.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017   Page 5 of 14
[14]   Although there is no dispute that Shirley had a right to be in Mildred’s house,

       the only evidence that he acted without fault or that he had a reasonable fear of

       great harm was from his own self-serving testimony. Shirley testified at trial

       that he and Roderick got into an argument and that Roderick punched him in

       the mouth, forehead and eye and choked him. He further testified that

       Roderick tried to stab him with a knife, at which point he pulled out his gun

       and fired until Roderick stopped trying to stab him.


[15]   A jury could have reasonably rejected Shirley’s self-defense claim. At the time

       James and Bernita heard the gunshots, the altercation appeared to have ended.

       Shirley and Roderick were separated and across the room from each other

       where Roderick presented no immediate danger to Shirley, yet Shirley fired five

       shots. The firing of multiple shots undercuts a claim of self-defense. Randolph

       v. State, 755 N.E.2d 572, 576 (Ind. 2001). Immediately after the shots were

       fired, Roderick was located in the same spot by his bedroom door. The jury

       was free to disbelieve Shirley’s self-serving evidence, which it apparently did.

       See McCullough v. State, 985 N.E.2d 1135, 1139 (Ind. Ct. App. 2013) (stating

       jury is under no obligation to credit defendant’s evidence), trans. denied.

       Additionally, the jury was free to consider Shirley’s act of fleeing the house and

       staying at a friend’s and then a motel as indications of his guilty conscience. See

       Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015) (evidence of flight and attempt

       to avoid arrest may be considered as circumstantial evidence of consciousness

       of guilt). Furthermore, concealment of the handgun in a shoe under a pile of

       clothing in his closet added to the reasonable inference of guilt.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017   Page 6 of 14
[16]   There is sufficient probative evidence from which the jury could conclude that

       Shirley did not act in self-defense and that the State rebutted Shirley’s claim of
                                                             2
       self-defense beyond a reasonable doubt.


                                          II. Fundamental Error
                                                A. Jury Instruction

[17]   For his second claim of error, Shirley asserts that an allegedly erroneous jury

       instruction and comments by the prosecuting attorney combined to produce

       fundamental error. We first note, and Shirley concedes, that he did not object

       to the instruction or the comments. Failure to object to an instruction at trial

       results in waiver of the issue on appeal. Clay v. State, 766 N.E.2d 33, 36 (Ind.

       Ct. App. 2002). Likewise, failure to make a contemporaneous objection at trial

       to prosecutorial statements waives the issue for appeal. Bald v. State, 766

       N.E.2d 1170, 1172-73 (Ind. 2002).


[18]   Thus, in order to avoid waiver, Shirley claims the resulting error was

       fundamental. The fundamental error doctrine is extremely narrow and applies

       only when the error amounts to a blatant violation of basic principles, the harm

       or potential for harm is substantial, and the resulting error denies the defendant

       fundamental due process. Lehman v. State, 926 N.E.2d 35, 38 (Ind. Ct. App.




       2
         In its brief and citing federal cases for support, the State argues the jury was free to consider Shirley’s
       testimony as affirmative evidence of his guilt once it determined that he was not a credible witness and that
       his testimony was not truthful. However, we need not consider the merits of this argument because the State
       otherwise presented sufficient evidence to rebut Shirley’s claim of self-defense.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017        Page 7 of 14
       2010), trans. denied. This doctrine is available only in egregious circumstances.

       Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010).


[19]   With regard to the jury instruction, Shirley argues the trial court erred in giving

       the instruction because it was neither supported by the evidence nor complete in

       its explanation of the law. We review the trial court’s decisions on instruction

       of the jury for an abuse of discretion. Treadway v. State, 924 N.E.2d 621, 636

       (Ind. 2010). When determining whether a trial court erroneously instructed the

       jury, we consider the following: (1) whether there was evidence presented at

       trial to support the giving of the instruction; (2) whether the tendered

       instruction correctly states the law; and (3) whether the substance of the

       tendered instruction was covered by other instructions that were given. Mayes v.

       State, 744 N.E.2d 390, 394 (Ind. 2001). In this case, Shirley is concerned with

       the first two factors.


[20]   At Shirley’s trial, the court gave the following instruction on self-defense:

               It is an issue whether the Defendant acted in self-defense.
               A person is justified in using reasonable force against another
               person to protect himself or a third person from what the person
               reasonably believes to be the imminent use of unlawful force.
               However, a person is justified in using deadly force and does not
               have a duty to retreat, if he reasonably believes that deadly force
               is necessary to prevent serious bodily injury to himself or a third
               person or to prevent the commission of a felony.
               A person may not use force if:
                   • He is committing a crime that is directly and immediately
                     related to the confrontation;

       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017   Page 8 of 14
                   • He is escaping after the commission of a crime that is
                     directly and immediately connected to the confrontation;
                   • He provokes unlawful action by another person, with
                     intent to cause bodily injury to the other person; or
                   • He enters into combat with another person or is the initial
                     aggressor unless he 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.
               The State has the burden of proving beyond a reasonable doubt
               that the Defendant did not act in self-defense.
       Appellant’s App. Vol. II, p. 119.


[21]   Shirley claims that the last bullet point of the instruction was improper because

       there was no evidence that he instigated or participated willingly in the fight

       that preceded his shooting of Roderick. Bernita and James both testified that

       they saw Shirley and Roderick fighting and wrestling prior to the shooting

       when they returned from taking Derrick to the store. When the men were

       separated and across the living room from one another and James was satisfied

       the fight was over, he left the house and then heard the gunshots. Shirley, on

       the other hand, gave self-serving testimony that Roderick was the initial

       aggressor and that the fight and shooting were one continuous event concluding

       with him shooting Roderick because Roderick attempted to stab him. Thus,

       Shirley’s testimony, along with the testimony of Bernita and James, supported

       the giving of this portion of the self-defense instruction.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017   Page 9 of 14
[22]   Shirley also asserts that the trial court’s instruction incorrectly states the law.

       Particularly, he maintains that the instruction is incomplete because it does not

       give the legal definition of the phrase “enters into combat.”


[23]   We first observe that the trial court’s instruction tracks the language of the self-

       defense statute which provides, in pertinent part:


               (g) Notwithstanding [certain circumstances not applicable here],
               a person is not justified in using force if:
                       (1) . . .
                       (2) . . .; or
                       (3) 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.
       Ind. Code § 35-41-3-2.


[24]   Generally, it is not error to instruct the jury consistent with applicable statutes.

       Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999). However, relying on Wooley,

       Shirley alleges that the phrase “enters into combat” has a “special legal

       definition” that the trial court was required to use to properly instruct the jury.

       Appellant’s Br. pp. 33-34. In support of his argument, Shirley points to the

       Court’s explanation that “The legislature has chosen to require both an ‘initial

       aggressor’ and those who ‘enter into combat’ (i.e., mutually willing combatants)

       to declare an armistice before they may claim self-defense.” Wooley, 716

       N.E.2d at 926.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 10 of 14
[25]   The parenthetical used in Wooley is not a special legal definition. The term

       “i.e.,” is an abbreviation for a Latin expression meaning “that is” – it

       introduces a rewording or clarification of a word. MERRIAM-WEBSTER

       DICTIONARY, https://www.merriam-webster.com/dictionary/i.e. (last visited

       September 7, 2017). While these explanatory phrases/parentheticals are

       helpful, the mere insertion into its opinion of a clarifying term or phrase does

       not indicate that our Supreme Court has decreed that phrase to be a special

       legal definition or that trial courts commit error if they fail to include the term

       or phrase when instructing a jury.


[26]   Thus, there being evidence to support the giving of the instruction which

       correctly states the law, we conclude there was no error.


                                        B. Prosecutorial Comments

[27]   Shirley contends that a statement of the prosecuting attorney combined with the

       court’s alleged instructional error, discussed supra, amounts to fundamental

       error. If a defendant properly raises and preserves the issue of prosecutorial

       misconduct, the reviewing court must determine: (1) whether the prosecutor

       engaged in misconduct, and if so, (2) whether the misconduct, under all of the

       circumstances, placed the defendant in a position of grave peril to which he or

       she would not have been subjected. Isom v. State, 31 N.E.3d 469, 490 (Ind.

       2015), cert. denied, 136 S. Ct. 1161, 194 L. Ed. 2d 175 (2016). However, our

       standard of review is different where a claim of prosecutorial misconduct has

       not been properly preserved. In that instance, the defendant must establish not

       only the grounds for the misconduct but also the additional grounds for
       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 11 of 14
       fundamental error. Id. To be deemed fundamental, the error claimed must

       either make a fair trial impossible or constitute clearly blatant violations of basic

       and elementary principles of due process. Id.


[28]   During the rebuttal phase of closing arguments, the prosecutor stated:

               This wasn’t self defense [sic]. He wants you to believe that he sat
               there and passively just did this (Demonstrating). That’s what he
               did. He passively held his hands up while he was punched in the
               mouth, while he was punched in the head, while he was choked
               out, and while a knife came out to come after him. But I would
               like for you to — his uncle was able to punch him — according
               to him, punch him two times and choke him out. He couldn’t
               stop that, but he was able to stop that knife from even nicking
               him anywhere during this fight.
               We know there was a fight. No one is denying there was a fight.
               The girls run out of the house and say, They’re fighting [sic].
               Bernita sees tussling. There was a fight. There was — right
               when James got in there because they had been fighting.
               But do you know why he has to be so passive when he talks to
               you about what happened during that fight? It’s because of the
               same self defense [sic] instruction that [defense counsel] just
               talked about.
               A person may not use force if he enters into combat with another
               person or is the initial aggressor unless he withdraws from the
               encounter and communicates his intent to do so. If you believe
               this was mutual combat, the Defendant cannot claim self defense
               [sic]. [Defense counsel] read part of that instruction to you.
               You’re going to get the entire instruction from the Court. And I
               ask you to think about that when you go back there because the
               Defendant had to have been passively just being like, Oh. Oh, he
               hit me again. Oh my god. I’m being choked out, in order for
               him to be able to claim self defense [sic].


       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 12 of 14
       Tr. Vol. III, pp. 56-58. Based upon these comments, Shirley claims the State

       incorrectly informed the jury that Shirley had to remain passive to claim self-

       defense.


[29]   “Prosecutors are entitled to respond to allegations and inferences raised by the

       defense even if the prosecutor’s response would otherwise be objectionable.”

       Cooper v. State, 854 N.E.2d 831, 836 (Ind. 2006). In his own closing remarks,

       defense counsel focused on two points: (1) the portion of the self-defense

       instruction that states a person is justified in using deadly force, and does not

       have a duty to retreat, if he reasonably believes that deadly force is necessary to

       prevent serious injury and (2) the State has the burden of proving beyond a

       reasonable doubt that Shirley did not act in self-defense. Defense counsel

       summarized the evidence he believed showed that the State had not disproved

       that Shirley acted in self-defense and emphasized that there were no witnesses

       to the incident except Shirley and that a knife containing Roderick’s DNA was

       found under his body. Accordingly, on rebuttal the prosecutor countered with

       a different characterization of the evidence than set forth by the defense and

       questioned Shirley’s testimony that Roderick was the initial aggressor, was the

       only willing participant in the ensuing fight, and tried to stab Shirley with a

       knife. Thus, the portion of the State’s rebuttal closing argument at issue here

       was a permissible response to defense counsel’s characterization of the evidence

       during closing argument.


[30]   Further, we note that the court preliminarily instructed the jury that the

       attorneys’ final arguments are not evidence, that in their final arguments the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 13 of 14
       attorneys are permitted to characterize the evidence, discuss the law, and

       attempt to persuade the jury to a particular verdict, and that the jury may accept

       or reject these arguments. Appellant’s App. p. 106. Additionally, the jury

       received a final instruction informing them that statements by the attorneys are

       not evidence. Id. at 114. Jurors are presumed to follow the court’s instructions.

       Carpenter v. State, 15 N.E.3d 1075, 1078 (Ind. Ct. App. 2014), trans. denied.


[31]   Therefore, having found neither instructional error nor prosecutorial

       misconduct, we find nothing about the combination of the two to be so

       egregious as to rise to fundamental error.


                                                Conclusion
[32]   For the reasons stated, we conclude that the State presented sufficient evidence

       to rebut Shirley’s claim of self-defense and that no fundamental error resulted

       from the trial court’s instruction to the jury or the prosecutor’s comments.


[33]   Affirmed.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2514 | September 14, 2017 Page 14 of 14
