MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jun 19 2019, 10:20 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Carl Lee Brookerd, June 19, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3057 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1708-F3-51
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 1 of 7 Statement of the Case
[1] Carl Brookerd (“Brookerd”) appeals his convictions, following a jury trial, for
Level 3 felony aggravated battery1 and Level 5 felony battery by means of a
deadly weapon.2 Brookerd argues that there was insufficient evidence to rebut
his self-defense claim. Concluding that there was sufficient evidence, we affirm
his convictions.
[2] We affirm.
Issue
Whether there was sufficient evidence to rebut Brookerd’s self- defense claim.
Facts
[3] On August 2, 2017, Teejay Conley (“Conley”) was living with his mother,
Tammy Brookerd (“Tammy”), his thirteen-year-old brother (“brother”), and his
step-father, Brookerd, in South Bend. At Tammy’s request, Conley checked
several things on her vehicle that she thought did not seem right. After
checking the vehicle, Conley entered the house and asked Tammy whether she
would consider trading her vehicle in to get a new one due to the amount of
traveling she did for work. Brookerd, who was laying on the couch, interjected
1 IND. CODE § 35-42-2-1.5. 2 I.C. § 35-42-2-1.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 2 of 7 in the conversation and told Conley “that is my F’ing car. Get the F out of my
house or I am going to F’ing shoot you.” (Tr. Vol. 2 at 44). A verbal
altercation ensued, and Brookerd stood up from the couch and grabbed his
loaded .40 caliber handgun from a nearby coffee table.
[4] After seeing Brookerd grab his handgun, Conley quickly ushered his brother out
of the house. Conley then drew his mother’s attention to Brookerd, and she
searched for her phone to call 9-1-1. Conley approached Brookerd and
Brookerd either “pushed [Conley] or punched [Conley].” (Tr. Vol. 2 at 26).
Conley tackled Brookerd to the couch, and the two struggled over the handgun.
[5] During the struggle, Conley thought he heard his brother re-enter the house.
When Conley turned around to look for his brother, Brookerd hit him in the
head with the handgun, causing a cut. Conley disengaged from the fight and
began to walk away from Brookerd. Brookerd then fired a single round that
entered Conley’s left hand near his ring finger, exited near his thumb, and
lodged into the ceiling of the house.
[6] On August 9, 2017, the State charged Brookerd with Level 3 felony aggravated
battery and Level 5 felony battery by means of a deadly weapon. The case
proceeded to a jury trial on September 11, 2018. Conley, Tammy, and brother
all testified to the facts above. The jury was also presented with the testimony
of Russell Lupica (“Officer Lupica”), the responding crime scene technician
and officer with the South Bend Police Department. He testified about the
physical characteristics of the crime scene and injuries to Conley. Officer
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 3 of 7 Lupica concluded that based upon his training and experience, Conley’s wound
lacked the characteristics consistent with a very close contact wound. Officer
Lupica also testified that he did not observe any redness, swelling, bruising, or
injuries to Brookerd.
[7] Brookerd testified on his own behalf. He alleged that he shot Conley in self-
defense after Conley attacked him and stated that he was going to kill him.
Brookerd testified that when he fired the gun, Conley had “[o]ne hand on my
neck. One hand struggling with the gun.” (Tr. Vol. 3 at 103). On cross-
examination, Brookerd admitted that he did not tell the responding law
enforcement officers that Conley threatened to kill him or made any verbal
threats.
[8] The jury found Brookerd guilty as charged. At a subsequent sentencing
hearing, the trial court merged Brookerd’s battery with a deadly weapon
conviction into his aggravated battery conviction. He was sentenced to nine (9)
years in the Department of Correction, which was suspended to probation.
Brookerd was ordered to serve four years of his probation on home detention.
He now appeals.
Decision3
3 The “Statement of the Facts” section of Brookerd’s brief contains three sentences, which scantily describe the facts of this case. Instead, the “Argument” section of the brief contains a detailed recitation of relevant facts and testimony. We direct Brookerd’s counsel to Indiana Appellate Rule 46(A), which states in pertinent part that the “Facts” section “shall describe the facts relevant to the issues presented for review,” and that the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 4 of 7 [9] Brookerd contends that the State failed to provide sufficient evidence to rebut
his self-defense claim. Our standard of review for sufficiency of evidence claims
is well-settled. We do not assess the credibility of the witnesses or reweigh the
evidence in determining whether the evidence is sufficient. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). We consider only the probative evidence and
reasonable inferences supporting the verdict. Id. Reversal is appropriate only
when no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. The evidence is not required to overcome every
reasonable hypothesis of innocence and is sufficient if an inference may
reasonably be drawn from it to support the verdict. Id. at 147.
[10] 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 person is justified in using
reasonable force against any other person to protect the person or a third person
from what the person reasonably believes to be the imminent use of unlawful
force.” IND. CODE § 35-41-3-2(c). However, a person is not justified in using
force if 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.” I.C. § 35-41-3-2(g)(3).
“Argument” section “shall contain the appellant’s contentions why the trial court … committed reversible error[,]” and instruct him to comply with this rule in future briefs.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 5 of 7 [11] In order to prevail on a claim of self-defense, a defendant must show: (1) he
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jun 19 2019, 10:20 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Carl Lee Brookerd, June 19, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-3057 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1708-F3-51
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 1 of 7 Statement of the Case
[1] Carl Brookerd (“Brookerd”) appeals his convictions, following a jury trial, for
Level 3 felony aggravated battery1 and Level 5 felony battery by means of a
deadly weapon.2 Brookerd argues that there was insufficient evidence to rebut
his self-defense claim. Concluding that there was sufficient evidence, we affirm
his convictions.
[2] We affirm.
Issue
Whether there was sufficient evidence to rebut Brookerd’s self- defense claim.
Facts
[3] On August 2, 2017, Teejay Conley (“Conley”) was living with his mother,
Tammy Brookerd (“Tammy”), his thirteen-year-old brother (“brother”), and his
step-father, Brookerd, in South Bend. At Tammy’s request, Conley checked
several things on her vehicle that she thought did not seem right. After
checking the vehicle, Conley entered the house and asked Tammy whether she
would consider trading her vehicle in to get a new one due to the amount of
traveling she did for work. Brookerd, who was laying on the couch, interjected
1 IND. CODE § 35-42-2-1.5. 2 I.C. § 35-42-2-1.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 2 of 7 in the conversation and told Conley “that is my F’ing car. Get the F out of my
house or I am going to F’ing shoot you.” (Tr. Vol. 2 at 44). A verbal
altercation ensued, and Brookerd stood up from the couch and grabbed his
loaded .40 caliber handgun from a nearby coffee table.
[4] After seeing Brookerd grab his handgun, Conley quickly ushered his brother out
of the house. Conley then drew his mother’s attention to Brookerd, and she
searched for her phone to call 9-1-1. Conley approached Brookerd and
Brookerd either “pushed [Conley] or punched [Conley].” (Tr. Vol. 2 at 26).
Conley tackled Brookerd to the couch, and the two struggled over the handgun.
[5] During the struggle, Conley thought he heard his brother re-enter the house.
When Conley turned around to look for his brother, Brookerd hit him in the
head with the handgun, causing a cut. Conley disengaged from the fight and
began to walk away from Brookerd. Brookerd then fired a single round that
entered Conley’s left hand near his ring finger, exited near his thumb, and
lodged into the ceiling of the house.
[6] On August 9, 2017, the State charged Brookerd with Level 3 felony aggravated
battery and Level 5 felony battery by means of a deadly weapon. The case
proceeded to a jury trial on September 11, 2018. Conley, Tammy, and brother
all testified to the facts above. The jury was also presented with the testimony
of Russell Lupica (“Officer Lupica”), the responding crime scene technician
and officer with the South Bend Police Department. He testified about the
physical characteristics of the crime scene and injuries to Conley. Officer
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 3 of 7 Lupica concluded that based upon his training and experience, Conley’s wound
lacked the characteristics consistent with a very close contact wound. Officer
Lupica also testified that he did not observe any redness, swelling, bruising, or
injuries to Brookerd.
[7] Brookerd testified on his own behalf. He alleged that he shot Conley in self-
defense after Conley attacked him and stated that he was going to kill him.
Brookerd testified that when he fired the gun, Conley had “[o]ne hand on my
neck. One hand struggling with the gun.” (Tr. Vol. 3 at 103). On cross-
examination, Brookerd admitted that he did not tell the responding law
enforcement officers that Conley threatened to kill him or made any verbal
threats.
[8] The jury found Brookerd guilty as charged. At a subsequent sentencing
hearing, the trial court merged Brookerd’s battery with a deadly weapon
conviction into his aggravated battery conviction. He was sentenced to nine (9)
years in the Department of Correction, which was suspended to probation.
Brookerd was ordered to serve four years of his probation on home detention.
He now appeals.
Decision3
3 The “Statement of the Facts” section of Brookerd’s brief contains three sentences, which scantily describe the facts of this case. Instead, the “Argument” section of the brief contains a detailed recitation of relevant facts and testimony. We direct Brookerd’s counsel to Indiana Appellate Rule 46(A), which states in pertinent part that the “Facts” section “shall describe the facts relevant to the issues presented for review,” and that the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 4 of 7 [9] Brookerd contends that the State failed to provide sufficient evidence to rebut
his self-defense claim. Our standard of review for sufficiency of evidence claims
is well-settled. We do not assess the credibility of the witnesses or reweigh the
evidence in determining whether the evidence is sufficient. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). We consider only the probative evidence and
reasonable inferences supporting the verdict. Id. Reversal is appropriate only
when no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. The evidence is not required to overcome every
reasonable hypothesis of innocence and is sufficient if an inference may
reasonably be drawn from it to support the verdict. Id. at 147.
[10] 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 person is justified in using
reasonable force against any other person to protect the person or a third person
from what the person reasonably believes to be the imminent use of unlawful
force.” IND. CODE § 35-41-3-2(c). However, a person is not justified in using
force if 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.” I.C. § 35-41-3-2(g)(3).
“Argument” section “shall contain the appellant’s contentions why the trial court … committed reversible error[,]” and instruct him to comply with this rule in future briefs.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 5 of 7 [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 acted without fault; and (3) he
had a reasonable fear of death or great bodily harm. Coleman v. State, 946
N.E.2d 1160, 1165 (Ind. 2011). To sustain a defendant’s conviction, the State
must negate at least one of the elements of the self-defense claim. Wallace, 725
N.E.2d at 840. The State may meet its burden by rebutting the defense directly,
by affirmatively showing that the defendant did not act in self-defense, or by
simply relying upon the sufficiency of the State’s evidence in chief. Hood v.
State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007), trans. denied. Whether the
State has met its burden is a question of fact for the factfinder. Id. This Court
will affirm if there is sufficient evidence of probative value to support the
conclusion of the trier of fact. Wallace, 725 N.E.2d at 840. If the defendant is
convicted despite his claim of self-defense, this Court will reverse only if no
reasonable person could say that self-defense was negated by the State beyond a
reasonable doubt. Wilson v. State, 770 N.E.2d 799, 800-01 (Ind. 2002). 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
claim. Id. at 801. We neither reweigh the evidence nor judge the credibility of
witnesses. Id. If there is sufficient evidence of probative value to support the
conclusion of the trier of fact, then the verdict will not be disturbed. Id.
[12] Brookerd argues that the evidence at trial supports his contention that he acted
in self-defense. We disagree. Our review of the record reveals that Brookerd
interrupted a conversation Conley was having with his mother. Unprovoked,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 6 of 7 Brookerd then threatened to shoot Conley if he did not leave the house. A
verbal altercation ensued and Brookerd grabbed his handgun. After Brookerd
either “pushed [Conley] or punched [Conley][,]” a brief physical altercation
took place on the couch, during which Brookerd struck Conley in the head with
the handgun. (Tr. Vol. 2 at 26). Both Tammy and Conley testified that Conley
disengaged from the altercation and was walking away when Brookerd shot
Conley in the hand. Furthermore, Officer Lupica testified that the Conley’s
wound lacked the characteristics consistent with a very close wound, which is
at odds with Brookerd’s testimony that Conley had “[o]ne hand on [his] neck.
One hand struggling with the gun[]” when he shot Conley. (Tr. Vol. 3 at 103).
Thus, the State met its burden of rebutting Brookerd’s claim of self-defense by
showing that he did not act without fault.
[13] Brookerd’s argument that the evidence at trial shows that he justifiably acted in
self-defense when he shot Conley is nothing more than an invitation to reweigh
the evidence and judge the credibility of the witnesses, which we will not do.
See Drane, 867 N.E.2d at 146. Because there was probative evidence from
which the trier of fact could have found that the State rebutted Brookerd’s self-
defense claim beyond a reasonable doubt, we affirm his convictions.
[14] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-3057 | June 19, 2019 Page 7 of 7