Brock Jerel Perry v. State of Indiana (mem. dec.) ( 2018 )

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
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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).
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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.
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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
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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
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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.
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