MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 05 2019, 6:06 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Megan Shipley Attorney General of Indiana Marion County Public Defender Agency George P. Sherman – Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus Lloyd, July 5, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2649 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David J. Certo, Appellee-Plaintiff. Judge Trial Court Cause No. 49G12-1804-CM-13965
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019 Page 1 of 6 [1] Marcus Lloyd (“Lloyd”) was convicted in the Marion Superior Court of Class
B misdemeanor disorderly conduct.1 Lloyd now appeals arguing the evidence
was insufficient to rebut his claim of self-defense.2
[2] We affirm.
Facts and Procedural History
[3] In the early morning hours of April 15, 2018, a fight broke out at Blu Nightclub
located at the corner of Louisiana Street and Meridian Street in Indianapolis.
Marcus Lloyd (“Lloyd”) worked security at the Blu Nightclub on the night of
the incident. Lloyd had finished his shift and upon exiting the club, Lloyd saw
ten to fifteen people fighting. There was loud music playing from the club, and
the street was full of people leaving the club. Lloyd attempted to break up the
fight and as a result got involved in an altercation with Albert Germany
(“Germany”).
[4] Indianapolis Metropolitan Police Officer Matthew Plummer (“Officer
Plummer”) and other officers were about half a block away when they noticed
the fight. Officer Plummer was standing about thirty to forty feet away from the
crowd when he deployed ten to fifteen rounds of pepper balls toward the
ground in efforts to disperse the crowd. After the first round of pepper balls,
1 “Engages in fighting or in tumultuous conduct.” See Ind. Code § 35-45-1-3(a)(1). 2 In his brief, Lloyd also argued that the trial court abused its discretion at sentencing by failing to conduct an indigency hearing. The trial court has since held an indigency hearing, and the issue is now moot. Notice of Post-Judgment Change in Circumstances pp. 1–2.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019 Page 2 of 6 around “90 percent of the people dispersed.” Tr. p. 12. Officer Plummer
observed that Lloyd and Germany continued “throwing punches and [were]
still fighting.” Id.
[5] The officers gave commands to Lloyd and Germany to stop fighting, but they
did not comply. After the “pushing and shoving and throwing the punches” did
not cease, Officer Plummer fired additional pepper balls in Lloyd and
Germany’s direction. Tr. p. 13. When Officer Plummer was about five feet
away, both Lloyd and Germany stopped fighting and “basically hugged it out. .
. [and] held onto each other.” Id. The officers handcuffed both men and took
them into custody. Officer Plummer estimated the whole incident lasted one to
one-and-a-half minutes from the start of the fight until the arrest.
[6] On April 27, 2018, the State charged Lloyd with Class B misdemeanor
disorderly conduct. A bench trial was held on October 4, 2018. At trial, Lloyd
argued his actions were justified under Indiana’s self-defense laws because he
was protecting himself and others. Lloyd was found guilty as charged.3 The
same day, the trial court sentenced Lloyd to 180 days in the Marion County
jail, with 178 days suspended to probation. The court imposed court costs and
probation fees totaling $405.00.4 On April 23, 2019, the court held an indigency
3 Albert Germany was also charged with one count of disorderly conduct. Lloyd and Germany were tried together, and Germany was found not guilty. 4 Court costs of $185.00 and probation fees of $220.00.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019 Page 3 of 6 hearing, reducing Lloyd’s total fees and costs from $405 to $200. Lloyd now
appeals.
Discussion and Decision
[7] Lloyd contends only that the evidence is insufficient to rebut his claim of self-
defense. 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: a reviewing court neither reweighs the evidence nor judges
the credibility of the witnesses, and if there is sufficient evidence of probative
value to support the judgment, the judgment will not be disturbed. McCullough
v. State, 985 N.E.2d 1135, 1138–39 (Ind. Ct. App. 2013), trans. denied. The court
examines “only the evidence most favorable to the judgment along with all
reasonable inferences to be drawn therefrom.” Clark v. State, 695 N.E.2d 999,
1002 (Ind. Ct. App. 1998). “If a defendant is convicted despite his or her claim
of self-defense, [an appellate court] will reverse only if no reasonable person
could say that self-defense was negated by the State beyond a reasonable
doubt.” Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied.
[8] To convict Lloyd of Class B misdemeanor disorderly conduct, the State had to
show that Lloyd: (1) recklessly, knowingly, or intentionally; (2) engaged; (3) in
fighting or tumultuous conduct. Ind. Code § 35-45-1-3(a)(1). Lloyd does not
dispute the fact that he engaged in fighting but alleges he acted in self-defense.
We disagree.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019 Page 4 of 6 [9] Indiana’s self-defense statute provides, “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). In order to prevail on a claim of self-defense, a defendant
must show that he: “(1) was in a place where he had a right to be; (2) did not
provoke, instigate, or participate willingly in the violence; and (3) had a
reasonable fear of death or great bodily harm.” Simpson v. State, 915 N.E.2d
511, 514 (Ind. Ct. App. 2009), trans. denied. When a claim of self- defense is
raised and finds support in the evidence, the State then has the burden of
negating at least one of the elements. Cole v. State, 28 N.E.3d 1126, 1137 (Ind.
Ct. App. 2015). The State may meet this burden by rebutting the defense
directly, by affirmatively showing the defendant did not act in self-defense, or
by simply relying upon its evidence in chief. Miller v. State,
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MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 05 2019, 6:06 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Megan Shipley Attorney General of Indiana Marion County Public Defender Agency George P. Sherman – Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Marcus Lloyd, July 5, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2649 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David J. Certo, Appellee-Plaintiff. Judge Trial Court Cause No. 49G12-1804-CM-13965
Mathias, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019 Page 1 of 6 [1] Marcus Lloyd (“Lloyd”) was convicted in the Marion Superior Court of Class
B misdemeanor disorderly conduct.1 Lloyd now appeals arguing the evidence
was insufficient to rebut his claim of self-defense.2
[2] We affirm.
Facts and Procedural History
[3] In the early morning hours of April 15, 2018, a fight broke out at Blu Nightclub
located at the corner of Louisiana Street and Meridian Street in Indianapolis.
Marcus Lloyd (“Lloyd”) worked security at the Blu Nightclub on the night of
the incident. Lloyd had finished his shift and upon exiting the club, Lloyd saw
ten to fifteen people fighting. There was loud music playing from the club, and
the street was full of people leaving the club. Lloyd attempted to break up the
fight and as a result got involved in an altercation with Albert Germany
(“Germany”).
[4] Indianapolis Metropolitan Police Officer Matthew Plummer (“Officer
Plummer”) and other officers were about half a block away when they noticed
the fight. Officer Plummer was standing about thirty to forty feet away from the
crowd when he deployed ten to fifteen rounds of pepper balls toward the
ground in efforts to disperse the crowd. After the first round of pepper balls,
1 “Engages in fighting or in tumultuous conduct.” See Ind. Code § 35-45-1-3(a)(1). 2 In his brief, Lloyd also argued that the trial court abused its discretion at sentencing by failing to conduct an indigency hearing. The trial court has since held an indigency hearing, and the issue is now moot. Notice of Post-Judgment Change in Circumstances pp. 1–2.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019 Page 2 of 6 around “90 percent of the people dispersed.” Tr. p. 12. Officer Plummer
observed that Lloyd and Germany continued “throwing punches and [were]
still fighting.” Id.
[5] The officers gave commands to Lloyd and Germany to stop fighting, but they
did not comply. After the “pushing and shoving and throwing the punches” did
not cease, Officer Plummer fired additional pepper balls in Lloyd and
Germany’s direction. Tr. p. 13. When Officer Plummer was about five feet
away, both Lloyd and Germany stopped fighting and “basically hugged it out. .
. [and] held onto each other.” Id. The officers handcuffed both men and took
them into custody. Officer Plummer estimated the whole incident lasted one to
one-and-a-half minutes from the start of the fight until the arrest.
[6] On April 27, 2018, the State charged Lloyd with Class B misdemeanor
disorderly conduct. A bench trial was held on October 4, 2018. At trial, Lloyd
argued his actions were justified under Indiana’s self-defense laws because he
was protecting himself and others. Lloyd was found guilty as charged.3 The
same day, the trial court sentenced Lloyd to 180 days in the Marion County
jail, with 178 days suspended to probation. The court imposed court costs and
probation fees totaling $405.00.4 On April 23, 2019, the court held an indigency
3 Albert Germany was also charged with one count of disorderly conduct. Lloyd and Germany were tried together, and Germany was found not guilty. 4 Court costs of $185.00 and probation fees of $220.00.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019 Page 3 of 6 hearing, reducing Lloyd’s total fees and costs from $405 to $200. Lloyd now
appeals.
Discussion and Decision
[7] Lloyd contends only that the evidence is insufficient to rebut his claim of self-
defense. 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: a reviewing court neither reweighs the evidence nor judges
the credibility of the witnesses, and if there is sufficient evidence of probative
value to support the judgment, the judgment will not be disturbed. McCullough
v. State, 985 N.E.2d 1135, 1138–39 (Ind. Ct. App. 2013), trans. denied. The court
examines “only the evidence most favorable to the judgment along with all
reasonable inferences to be drawn therefrom.” Clark v. State, 695 N.E.2d 999,
1002 (Ind. Ct. App. 1998). “If a defendant is convicted despite his or her claim
of self-defense, [an appellate court] will reverse only if no reasonable person
could say that self-defense was negated by the State beyond a reasonable
doubt.” Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied.
[8] To convict Lloyd of Class B misdemeanor disorderly conduct, the State had to
show that Lloyd: (1) recklessly, knowingly, or intentionally; (2) engaged; (3) in
fighting or tumultuous conduct. Ind. Code § 35-45-1-3(a)(1). Lloyd does not
dispute the fact that he engaged in fighting but alleges he acted in self-defense.
We disagree.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019 Page 4 of 6 [9] Indiana’s self-defense statute provides, “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). In order to prevail on a claim of self-defense, a defendant
must show that he: “(1) was in a place where he had a right to be; (2) did not
provoke, instigate, or participate willingly in the violence; and (3) had a
reasonable fear of death or great bodily harm.” Simpson v. State, 915 N.E.2d
511, 514 (Ind. Ct. App. 2009), trans. denied. When a claim of self- defense is
raised and finds support in the evidence, the State then has the burden of
negating at least one of the elements. Cole v. State, 28 N.E.3d 1126, 1137 (Ind.
Ct. App. 2015). The State may meet this burden by rebutting the defense
directly, by affirmatively showing the defendant did not act in self-defense, or
by simply relying upon its evidence in chief. Miller v. State, 720 N.E.2d 696, 700
(Ind. 1999). We conclude that there was sufficient evidence to rebut Lloyd’s
claim of self-defense since Lloyd participated willingly in the violence.
[10] Here, Lloyd testified that he “got in between a couple people, grabbed them,
pulled them away.” Tr. p. 20. Lloyd continued to throw punches at Germany
even after law enforcement officers arrived at the scene.
[11] Our Indiana Supreme Court has held that “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.” Wilson v.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019 Page 5 of 6 State, 770 N.E.2d 799 (Ind. 2002) (quoting Ind. Code § 35-41-3-2(e)(3) (2002).
Here, once the officers arrived on the scene, dispersed the crowd, and issued
commands to stop fighting, Lloyd had the responsibility to disengage and
withdraw from the fight. Lloyd was required to withdraw as a precondition for
a claim for self-defense. Lloyd ignored the officers’ requests multiple times and
continued fighting. Additionally, a reasonable person would not fear death or
great bodily harm in the presence of uniformed officers that were stopping the
fight. Lloyd was a willing participant in the fight, and his force was
unwarranted under the circumstances. Therefore, this evidence is sufficient to
rebut Lloyd’s claim of self-defense.
Conclusion [12] Based on the facts and circumstances before us, the evidence presented was
sufficient to rebut Lloyd’s claim of self-defense. Accordingly, we affirm Lloyd’s
conviction for disorderly conduct.
May, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2649 | July 5, 2019 Page 6 of 6