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

• Court: Indiana Court of Appeals
• Decided: April 26, 2018
• Docket: 71A03-1711-CR-2752
• Status: Published

Opinion

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

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018 Page 1 of 6 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).

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018 Page 2 of 6 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.

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018 Page 3 of 6 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018 Page 4 of 6 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018 Page 5 of 6 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.

Court of Appeals of Indiana | Memorandum Decision 71A03-1711-CR-2752 | April 26, 2018 Page 6 of 6