Jeremy Fitzgerald v. State of Indiana

Feb 12 2015, 7:19 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Appellate Division
Indianapolis, Indiana Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jeremy Fitzgerald, February 12, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1407-CR-507
v. Appeal from the Marion Superior
Court
The Honorable Sheila A. Carlisle,
State of Indiana, Judge
Appellee-Plaintiff The Honorable Stanley Kroh,
Magistrate
Case No. 49G03-1404-FB-20344
Bradford, Judge.
Case Summary
[1] On April 19, 2014, Melanie Jones and her friend Appellant-Defendant Jeremy
Fitzgerald staged a fake robbery in an apparent attempt to conceal Jones’s theft
of money from her employer. According to the scheme concocted by Jones,
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Fitzgerald would run from Jones’s vehicle and Jones would act as if she had
been robbed. Jones would then claim to be unable to identify the perpetrator.
The scheme, however, did not go as planned because a Good Samaritan,
Matthew Bingham, intervened in an attempt to thwart the apparent robbery.
Bingham chased after and ultimately detained Fitzgerald until police caught up
with the men and placed Fitzgerald under arrest. Appellee-Plaintiff the State of
Indiana (the “State”) subsequently charged Fitzgerald with Class C felony
intimidation for actions committed by Fitzgerald against Bingham once
Bingham had detained him.
[2] On appeal, Fitzgerald challenges his conviction claiming that the detainment of
him by Bingham did not amount to a lawful “citizen’s arrest” and, as such, he
was entitled to employ reasonable force to defend himself against the unlawful
detention. Fitzgerald further challenges his conviction claiming that the State
failed to disprove his self-defense claim. Upon review, we conclude that the
detainment of Fitzgerald by Bingham did not amount to a lawful “citizen’s
arrest.” However, we further conclude that the State presented sufficient
evidence to disprove Fitzgerald’s self-defense claim. As such, we affirm
Fitzgerald’s conviction for Class C felony intimidation.
Facts and Procedural History
[3] As Bingham exited the CVS store located at the corner of 16th Street and
Meridian Streets in Indianapolis on April 19, 2014, he “heard a girl yelp.” Tr.
p. 22. Bingham looked toward the direction of the sound and saw a woman’s
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feet “hanging out of the driver’s seat” of a black sports utility vehicle (“SUV”).
Tr. p. 22. Bingham also saw a man, who was later identified as Fitzgerald, run
away from the SUV. Bingham approached the SUV and asked the woman,
who was later identified as Jones, if she was okay. Bingham observed that
Jones appeared to have been sprayed in the face with pepper spray. Jones
“muttered some stuff” and said that Fitzgerald “took her bag.” Tr. p. 28.
[4] After speaking to Jones, Bingham began to run after Fitzgerald. Fitzgerald
soon realized that he was being chased by Bingham. Upon making this
realization, Fitzgerald continued to run. At some point during the chase, the
men scaled a wrought iron fence. Bingham continued to chase Fitzgerald for
approximately fifteen to twenty minutes. Eventually, Fitzgerald became
“backed up into a corner.” Tr. p. 40.
[5] Fitzgerald then turned toward Bingham, pulled a knife out of his pocket, and
told Bingham to “get the f*** away from me” and “it’s not what you think.”
Tr. p. 82. At the time, Bingham was five or six feet from Fitzgerald. After
observing the knife, Bingham retreated to a distance of approximately eight to
ten feet from Fitzgerald. Indianapolis Metropolitan Police Officer Kollin
Anslow subsequently arrived at the scene and placed Fitzgerald under arrest.
[6] Jones, whose eyes had swollen shut after being sprayed in the face with pepper
spray, was transported to Methodist Hospital after complaining that she was
experiencing difficulty breathing. Indianapolis Metropolitan Police Detective
Gregory Scheid, the lead detective charged with investigating the alleged
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robbery, spoke to Jones at Methodist Hospital. Detective Scheid showed Jones
a photo array of potential attackers. Jones, however, “declined” to identify
anyone. Tr. p. 58.
[7] On April 23, 2014, the State charged Fitzgerald with Class B felony robbery and
Class C felony intimidation. At some point after charges were filed, Detective
Scheid “became suspicious of whether a robbery had actually taken place.” Tr.
p. 56. Detective Scheid spoke to Fitzgerald’s mother, Donna Clevenger, who
expressed confusion because Fitzgerald and Jones were friends and Jones “was
denying that she knew who robbed her.” Tr. p. 56. In the course of
“follow[ing] up” on the statements made by Clevenger, Detective Scheid
became convinced that “there actually had not been a real robbery that
occurred that day.” Tr. p. 56.
[8] Detective Scheid subsequently learned of missing deposits from the store at
which Jones worked after speaking to a representative in the corporate
headquarters for Jones’s place of employment. Detective Scheid came to
believe that Jones and her boyfriend, a manager at the store at which Jones
worked named Brian, had conspired to steal money from the store. They had
then conspired to “set up a robbery where they would be able to write-off the
loss.”1 Tr. p. 57. The “wrench” in their plan was that Bingham chased down
Fitzgerald “instead of him just getting away.” Tr. p. 57. In light of the
1
For reasons unknown, Fitzgerald agreed to play the part of the apparent robber.
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information learned by Detective Scheid, the State subsequently decided to
drop the robbery charge.
[9] On June 11, 2014, the trial court conducted a bench trial after which it found
Fitzgerald guilty of Class C felony intimidation. The trial court subsequently
sentenced Fitzgerald to a three-year term, with two years executed and one year
suspended to probation. This appeal follows.
Discussion and Decision
I. Whether Bingham’s “Citizen’s Arrest” of Fitzgerald
was Lawful
[10] “Indiana follows the general common law rule that ‘a private citizen has the
right to arrest one who has committed a felony in his presence, and may even
arrest one he reasonably believes to have committed a felony, so long as the
felony was in fact committed.’” U.S. v. Hillsman, 522 F.2d 454, 460-61 (7th Cir.
1975) (quoting Surratt v. Petrol, Inc., Ind. App., 312 N.E.2d 487, 495 (1974).
Specifically, Indiana Code section 35-33-1-4(a) provides as follows:
Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that
the other person has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in
his presence and the arrest is necessary to prevent the continuance of
the breach of peace.
(Emphases added). Stated another way,
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The private citizen’s right to make an arrest … is limited by the fact
that he, unlike a police officer, acts at his own peril. A police officer
has the right to arrest without a warrant where he reasonably believes
that a felony has been committed and that the person arrested is guilty,
even if, in fact, no felony has occurred. A private citizen, on the other
hand, is privileged to make an arrest only when he has reasonable
grounds for believing in the guilt of the person arrested and a felony has
in fact been committed.
Hillsman, 522 F.2d at 461 (citing Smith v. State, 258 Ind. 594, 597, 283 N.E.2d
365, 367 (1972); Doering v. State, 49 Ind. 56, 58 (1874); Teagarden v. Graham, 31
Ind. 422, 424 (1869)) (emphasis added).
[11] In the instant matter, Bingham chased and detained Fitzgerald after forming the
reasonable belief that Fitzgerald had robbed Jones. However, although
Bingham reasonably believed that Fitzgerald had committed a felony, i.e., a
robbery, the fact of the matter is that no robbery had been committed. As such,
pursuant to the above-quoted, long-standing precedent, we must conclude that
Bingham’s “citizen’s arrest” of Fitzgerald was unlawful. Having concluded
that Bingham’s “citizen’s arrest” of Fitzgerald was unlawful, we must next
consider whether the trial court erred in finding that the State sufficiently
rebutted Fitzgerald’s self-defense claim.
II. Whether the State Sufficiently Disproved Fitzgerald’s
Self-Defense Claim
[12] On appeal, Fitzgerald contends that the trial court erred in finding that the State
sufficiently rebutted his self-defense claim.
A valid claim of self-defense is a legal justification for an otherwise
criminal act. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). “A
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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.” Ind. Code § 35-41-3-2 (2001).
A claim of self-defense requires a defendant to have acted without
fault, been in a place where he or she had a right to be, and been in
reasonable fear or apprehension of bodily harm. White v. State, 699
N.E.2d 630, 635 (Ind. 1998).
Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003).
[13] Once the defendant asserts a claim of self-defense, the State bears the
burden of disproving the existence of one of the elements of the claim.
Mariscal v. State, 687 N.E.2d 378, 381 (Ind. Ct. App. 1997), trans.
denied. The State may rebut a claim of self-defense by affirmatively
showing that the defendant did not act to defend himself or another by
relying on the evidence elicited in the case-in-chief. Id. 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 of the
evidence challenge. [Rodriguez v. State, 714 N.E.2d 667, 670 (Ind. Ct.
App. 1999), trans. denied].
Wilcher v. State, 771 N.E.2d 113, 116 (Ind. Ct. App. 2002).
[14] Upon a challenge to the sufficiency of the evidence, this court will not
reweigh evidence or determine the credibility of witnesses. VanMatre
v. State, 714 N.E.2d 655, 657-58 (Ind. Ct. App. 1999). Instead, we will
look only to the evidence favorable to the judgment along with any
reasonable inferences to be drawn therefrom. Id. at 657. If there is
substantial evidence of probative value from which the jury could find
guilt beyond a reasonable doubt, we will affirm the conviction. Id. at
658.
Id. at 116-17. A defendant’s conviction will be upheld unless no reasonable
person could say that the State negated the self-defense claim beyond a
reasonable doubt. Id. at 116 (citing Lilly v. State, 506 N.E.2d 23, 24 (Ind. 1987);
Mariscal, 687 N.E.2d at 381).
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[15] The version of Indiana Code section 35-45-2-1(a)(1) in effect on the date in
question provided that “[a] person who communicates a threat to another
person, with the intent … that the other person engage in conduct against the
other person’s will … commits intimidation, a Class A misdemeanor.”
However, the offense is a … Class C felony if … while committing it, the
person draws or uses a deadly weapon.” Ind. Code § 35-45-2-1(b)(2)(A). In
alleging that Fitzgerald committed Class C felony intimidation, the State
alleged that Fitzgerald communicated to Bingham,
a threat to commit a forcible felony, that is: an implied threat to stab or
cut [Bingham], ordering him to ‘Get the [f***] away from me” or
words to that effect, with the intent that [Bingham] engage in conduct
against his will, that is: to force [Bingham] to terminate his pursuit
and/or apprehension of [Fitzgerald] who he believed had committed a
crime, and while making said threat [Fitzgerald] did draw or use a
deadly weapon, that is: by pulling and brandishing a knife at
[Bingham] while making said threat[.]
Appellant’s App. p. 32.
[16] Fitzgerald does not challenge the sufficiency of the evidence to prove that he
drew a deadly weapon, i.e., a knife, while communicating a threat to Bingham
with the intent that Bingham engage in conduct against his will, i.e., terminate
his chase of Fitzgerald. Instead, Fitzgerald claims that he was justified in doing
so because he acted in self-defense and that the State failed to present sufficient
evidence to rebut his self-defense claim. Specifically, Fitzgerald argues that the
State failed to present sufficient evidence to rebut his claim that he was in a
location where he had a right to be, that he acted without fault, and that he
acted out of a reasonable fear or apprehension of bodily harm.
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[17] With respect to the location element, the record demonstrates that at the time of
the detainment, Bingham had Fitzgerald “backed up into a corner” of a public
parking lot. Tr. p. 40. Nothing in the record indicates that Fitzgerald did not
have a right to be in the public location. As such, the record supports
Fitzgerald’s assertion that he was in a location where he had a right to be.
[18] However, we disagree with Fitzgerald’s claim that the record unquestionably
supports his assertion that he acted without fault. In carrying out the fake
robbery, Fitzgerald was attempting to help a friend cover up a theft. Fitzgerald
acknowledged that from Bingham’s perspective, it appeared that Fitzgerald had
robbed Jones, specifically that he had forcibly taken a bag from Jones and
sprayed her in the face with pepper spray. Fitzgerald also acknowledged that
he knew that robbery is a crime, but claimed that he did not enter into the
situation thinking that he was “doing anything but helping a friend.” Tr. p. 84.
The trial court was entitled to consider these facts and find that Fitzgerald did
not act without fault.
[19] Furthermore, we disagree with Fitzgerald’s claim that the record
unquestionably supports his assertion that he acted out of reasonable fear or
apprehension of bodily harm. Fitzgerald testified that he feared Bingham
because Bingham continued making aggressive movements toward him, even
after Bingham cornered him. Bingham, for his part, testified that he stayed a
safe distance—approximately five to six feet—from Fitzgerald during his chase
and so-called detainment of Fitzgerald. Bingham further testified that he
withdrew to a distance of approximately eight to ten feet from Fitzgerald once
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Fitzgerald pulled the knife out of his pocket. Although Fitzgerald testified that
he “pulled the knife” because he was afraid of Bingham and had no intention of
cutting or stabbing Bingham, tr. p. 80, the trial court was not obligated to
believe Fitzgerald’s self-serving testimony. See McCullough v. State, 985 N.E.2d
1135, 1139 (Ind. Ct. App. 2013) (providing that the jury, acting as the trier of
fact, was under no obligation to credit defendant’s statement to police as
evidence that he acted without fault or that his actions were reasonable). As
such, the trial court was entitled to credit Bingham’s testimony and find that
Fitzgerald did not act out of a reasonable fear or apprehension of bodily harm.
[20] In sum, although we conclude that Bingham’s so-called “citizen’s arrest” of
Fitzgerald was unlawful, we conclude that the trial court did not err in finding
that the State presented sufficient evidence to rebut Fitzgerald’s self-defense
claim. Accordingly, we affirm Fitzgerald’s conviction for Class C felony
intimidation.
[21] The judgment of the trial court is affirmed.
Najam, J., and Mathias, J., concur.
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