Pursuant to Ind.Appellate Rule 65(D), 

this Memorandum Decision shall not 

be regarded as precedent or cited 

before any court except for the purpose 

of establishing the defense of res 

judicata, collateral estoppel, or the law 

of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

ELLEN M. O’CONNOR GREGORY F. ZOELLER

Marion County Public Defender Agency Attorney General of Indiana

Indianapolis, Indiana

RICHARD C. WEBSTER

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

LARRY PETERSON, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1401-CR-39

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Kurt M. Eisgruber, Judge

Cause No. 49G01-1112-FB-86618

October 10, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
2

Case Summary

Larry Peterson appeals his conviction for Class B felony aggravated battery. We 

affirm.

Issues

Peterson raises two issues, which we restate as:

I. whether the trial court properly instructed the jury 

regarding self-defense; and

II. whether the State rebutted his claim of self-defense.

Facts

Peterson was working as a security guard at a liquor store in Indianapolis. 

Michael Goldsby had recently been banned from entering the store. However, Goldsby 

returned to the store on December 11, 2011, and became very disruptive when the cashier 

would not sell alcohol to him. During the evening, Goldsby kept returning to the store. 

When Peterson came to work shortly before 7:00 p.m., he also told Goldsby to leave the 

store, but Goldsby kept returning. Eventually, Peterson and Goldsby got in a fight, and 

Peterson used a taser on Goldsby. Peterson got Goldsby out of the store, but Goldsby 

kept trying to get back in the store. Peterson was eventually able to lock the door, and

another employee called 911. While Goldsby was outside, he picked up a cinder block 

and acted like he was going to throw it through the store’s window. Instead, he turned 

and threw the block at Peterson’s truck. Goldsby then turned and started walking away. 

Peterson walked out of the store to “confront” Goldsby and had his gun in his hand. Tr. 

p. 341. Peterson fired three shots at Goldsby. One of the bullets entered the left side of 
3

Goldsby’s neck and came out of the right side of his neck. Peterson told police officers at 

the scene, “yeah, I shot him - - he threw a brick at my truck.” Id. at 151. During an 

interview, Peterson told officers that he shot at Goldsby as Goldsby was running away 

from him. 

The State charged Peterson with Class B felony aggravated battery and Class A 

felony attempted murder. Peterson argued at his jury trial that he shot Goldsby in selfdefense. The jury found him guilty of aggravated battery and not guilty of attempted 

murder. The trial court sentenced Peterson to ten years with six years executed on home 

detention and four years suspended to probation. Peterson now appeals.

Analysis

I. Jury Instruction

Peterson argues that the trial court erred by rejecting his proposed jury instruction 

regarding self-defense. Instructing a jury is left to the sound discretion of the trial court, 

and we review its decision only for an abuse of discretion. Washington v. State, 997 

N.E.2d 342, 345 (Ind. 2013). We undertake a three-part analysis in determining whether 

a trial court has abused its discretion. Id. First, we determine whether the tendered 

instruction is a correct statement of the law. Id. Second, we examine the record to 

determine whether there was evidence to support the tendered instruction. Id. at 345-46. 

Finally, we determine whether the substance of the tendered instruction was covered by 

another instruction or instructions. Id. at 346.

At the jury trial, Peterson proposed the following instruction regarding selfdefense:
4

It is an issue whether the defendant acted in selfdefense.

Self-defense is recognized as a valid justification for 

an otherwise criminal act. A person may use reasonable force 

against another person to protect himself or someone else 

from what the defendant reasonably believes to be the 

imminent use of unlawful force.

The question of the existence of danger at the time, the 

necessity or apparent necessity for the use of force employed 

by the defendant, as well as the amount of force necessary to 

resist an attack, can only be determined from the perspective 

of the defendant at the time and under all existing 

circumstances. It is immaterial whether or not the danger 

existed or whether or not the injury was intended by the 

aggressor.

However, a person may not use force if:

 He is committing a crime that is directly and 

immediately connected to the confrontation.

 He is escaping after the commission of a crime 

that is directly and immediately connected to 

the confrontation.

 He provokes a fight with another person with 

intent to cause bodily injury to that person.

 He has willingly entered into a fight with 

another person or started the fight, unless he 

withdraws from the fight and communicates to 

the other person his intent to withdraw and the 

other person nevertheless continues or threatens 

to continue the fight.

The State has the burden of proving beyond a 

reasonable doubt that the defendant did not act in selfdefense.

App. p. 199. Peterson filed a brief in support of his requested self-defense jury 

instruction. The brief focused on concerns over the subjective and objective beliefs of 
5

the defendant in a self-defense case. The trial court rejected the instruction and instead 

gave the following pattern jury instruction regarding self-defense:

It is an issue whether the Defendant acted in selfdefense.

A person is justified in using reasonable force against 

another person to protect himself or a third person from what 

the person reasonably believes to be the imminent use of

unlawful force.

However, a person is justified in using deadly force 

and does not have a duty to retreat, if he reasonably believes 

that deadly force is necessary to prevent serious bodily injury 

to himself or a third person or to prevent the commission of a 

felony.

A person may not use force if:

 He is committing a crime that is directly and 

immediately related to the confrontation;

 He is escaping after the commission of a crime 

that is directly and immediately connected to 

the confrontation;

 He provokes unlawful action by another person, 

with intent to cause bodily injury to the other 

person; or

 He enters into combat with another person or is 

the initial aggressor unless he 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.

The State has the burden of proving beyond a reasonable 

doubt that the Defendant did not act in self-defense.

App. p. 157. The trial court noted that Peterson’s concerns were appropriately addressed 

by the pattern instruction. Peterson’s only comment was, “we just stand on our brief.” 

Tr. p. 293. 
6

On appeal, Peterson argues that the jury instruction given by the trial court is 

erroneous because “[t]he trial court’s Jury Instruction of Self Defense omitted the 

statutory justification for deadly force [b]y omitting ‘forcible’ from felony.” Appellant’s 

Br. p. 19. According to Peterson, the failure to include “forcible” down played “the 

imminent threat” that Peterson faced. Id.

At the time of the offense, Indiana Code Section 35-41-3-2(a) provided:

A person is justified in using reasonable force against another 

person to protect the person or a third person from what the 

person reasonably believes to be the imminent use of 

unlawful force. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary 

to prevent serious bodily injury to the person or a third person 

or the commission of a forcible felony. No person in this 

state shall be placed in legal jeopardy of any kind whatsoever 

for protecting the person or a third person by reasonable 

means necessary.

(emphasis added).1 

Neither Peterson’s proposed jury instruction nor the pattern instruction given by 

the trial court included the term “forcible felony.” However, Peterson did not object to 

the pattern instruction on this basis, and his own proposed instruction did not cure this 

alleged defect. “A defendant may not argue one ground for objection at trial and then 

raise new grounds on appeal.” Patton v. State, 837 N.E.2d 576, 579 (Ind. Ct. App. 2005) 

 

1

Indiana Code Section 35-41-3-2 was subsequently amended by Pub. L. No. 161-2012, Section 1, 

effective March 20, 2012, and Pub. L. No. 13-2013, Section 139, effective April 1, 2013.
7

(citing Gill v. State, 730 N.E.2d 709, 711 (Ind. 2000)). “Nor may a defendant appeal the 

giving of an instruction on grounds not distinctly presented at trial.” Id. (citing Ind. Trial 

Rule 51(C)). “Appellate review of a claim of error in the giving of a jury instruction 

requires a timely trial objection clearly identifying both the claimed objectionable matter 

and the grounds for the objection.” Id. “A defendant must identify specific grounds in 

support of an objection to an incorrect jury instruction, particularly where the trial court 

focuses its attention on the language of a misleading or incomplete proposed instruction.” 

Id. Because Peterson objected at trial on a different basis, he has waived this argument. 

Waiver notwithstanding, Peterson has failed to demonstrate that he was prejudiced 

by the alleged error. “Before a defendant is entitled to a reversal, he must affirmatively 

show that the erroneous instruction prejudiced his substantial rights.” Rhone v. State, 

825 N.E.2d 1277, 1286 (Ind. Ct. App. 2005), trans. denied. As the State points out, the 

omission of the term “forcible felony” and the use of the term “felony” is favorable to 

Peterson because it would expand the justification for the use of deadly force to prevent 

any felony, not just a forcible felony. Peterson has failed to demonstrate that he was 

prejudiced by the omission of the term “forcible” from the jury instruction.

II. Self-Defense

Peterson argues that the State failed to rebut his claim of self-defense. A valid 

claim of defense of oneself or another person is legal justification for an otherwise 

criminal act. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). At the time of Peterson’s 

offense, Indiana Code Section 35-41-3-2(a) provided: “A person is justified in using 

reasonable force against another person to protect himself or a third person from what he 
8

reasonably believes to be the imminent use of unlawful force.” 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. Henson v. State, 

786 N.E.2d 274, 277 (Ind. 2003). Further, a mutual combatant, whether or not the initial 

aggressor, must declare an armistice before he or she may claim self-defense. Id. at 801; 

see Ind. Code § 35-41-3-2(e)(3) (“[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.”).2

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. Wilson, 770 N.E.2d at 800. 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. When a 

claim of self-defense is raised and finds support in the evidence, the State has the burden 

of negating at least one of the necessary elements. Id. If a defendant is convicted despite 

his or her claim of self-defense, we will reverse only if no reasonable person could say 

that self-defense was negated by the State beyond a reasonable doubt. Id. at 800-01. 

 

2 Subsequently amended by Pub. L. No. 161-2012, Section 1, effective March 20, 2012, and Pub. L. No. 

13-2013, Section 139, effective April 1, 2013.
9

According to Peterson, the State failed to rebut his self-defense claim beyond a 

reasonable doubt. Peterson contends that Goldsby was the initial aggressor and that 

Goldsby retained the ability to throw a block at the window. Peterson argues that he 

lawfully used reasonable force to “protect himself from what he reasonably believed to 

be the imminent use of unlawful force.” Appellant’s Br. p. 12. 

The State demonstrated that, after the fight in the liquor store, Peterson was able to 

get Goldsby outside and lock the door. Goldsby picked up a cinder block and acted as if 

he was going to throw it through the store window. Instead, Goldsby threw it at 

Peterson’s truck. At that point, Goldsby started walking away, but Peterson walked out 

of the store to “confront” Goldsby and had his gun in his hand. Tr. p. 341. Peterson fired 

three shots at Goldsby. One of the bullets entered the left side of Goldsby’s neck and 

came out of the right side of his neck. Peterson told police officers at the scene, “yeah, I 

shot him - - he threw a brick at my truck.” Id. at 151. During an interview, Peterson told 

officers that he shot at Goldsby as Goldsby was running away from him. Because 

Goldsby was retreating and leaving the scene, Peterson could not have had a reasonable 

fear of the imminent use of unlawful force or reasonable fear or apprehension of bodily 

harm. Although Peterson argues that Goldsby lunged at him in the parking lot, the 

argument is merely a request that we reweigh the evidence, which we cannot do. We 

conclude that the evidence was sufficient to rebut Peterson’s self-defense claim. See, 

e.g., Wilson, 770 N.E.2d at 801 (holding that the evidence was sufficient to rebut the 

defendant’s self-defense claim where he continued shooting after the victim had ceased 

firing and was attempting to leave the area). 
10

Conclusion

Peterson was not prejudiced by the self-defense jury instruction, and the State 

presented sufficient evidence to rebut his self-defense claim. We affirm.

Affirmed.

BRADFORD, J., and BROWN, J., concur.