Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 1 of 14

MEMORANDUM DECISION

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

Paul J. Podlejski

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Grover McPhaul,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

August 30, 2019

Court of Appeals Case No.

19A-CR-34

Appeal from the Madison Circuit 

Court

The Honorable Angela Warner 

Sims, Judge

Trial Court Cause No.

48C01-1809-F5-2461

Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 2 of 14

Case Summary and Issues

[1] Following a jury trial, Grover McPhaul was convicted of two counts of battery 

resulting in bodily injury to a public safety official, both Level 5 felonies, and 

one count of criminal mischief, a Class B misdemeanor. The trial court 

sentenced McPhaul to an aggregate term of six years, with three years executed 

in the Indiana Department of Correction (“DOC”) and three years suspended. 

McPhaul appeals and raises two issues which we restate as: (1) whether the trial 

court erred in denying his motion to dismiss due to the State’s alleged failure to 

preserve certain evidence; and (2) whether the trial court abused its discretion 

by refusing to give the jury an instruction on self-defense. Concluding the trial 

court did not err in either respect, we affirm.

Facts and Procedural History 

[2] The Madison County Correctional Complex (“MCCC”) is a jail overflow 

facility in Anderson, Indiana, and contains three dormitories where inmates are 

housed. Each dormitory is comprised of thirty to fifty-one bunks, several long 

tables with benches, sinks, and a bathroom with an open doorway and 

walkway. The inmates’ meals are served on reusable “big hard plastic” trays, 

which are placed on a cart and then wheeled into the dormitory area where the 

inmates line up to receive their meal. Transcript of Evidence, Volume II at 44. 

Inmates are permitted to eat anywhere in the dormitory. However, once 

finished, the inmates are required to stack the trays in a specific location. In 

dormitory two, inmates stack their trays next to the door, which is right next to 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 3 of 14

the dorm’s control room. The control room has a one-way mirror window, 

control panel, and five monitors displaying live footage of the dorm from

several different angles, excluding the interior of the bathroom. 

[3] On August 20, 2018, McPhaul was an inmate housed in dormitory two at 

MCCC. Around 4:58 p.m., Correctional Officer Jared Henderson was inside 

the dorm’s control room when he heard a “thud against the window.” Id. at 27. 

To determine the cause of the noise, Officer Henderson rewound the security 

footage a “short time” and observed McPhaul throw his dinner tray against the 

window of the control room, behavior that violates MCCC rules. Id. at 28. 

The footage showed McPhaul walked to a sink, proceeded to his bunk, grabbed 

a roll of toilet paper, and went into the bathroom. After viewing the footage, 

Officer Henderson requested via radio that McPhaul be removed from the floor.

Correctional Officers Nick Robinson and Austin Bentley indicated they would 

respond. 

[4] Upon entering the dorm, the officers were unaware of McPhaul’s location. 

Officer Bentley proceeded toward the bunks while Officer Robinson went 

straight into the bathroom area. When Officer Robinson entered, he observed 

“McPhaul getting ready to use the bathroom,” so he walked up to McPhaul and 

asked “if he could cuff up[.]” Id. at 47. McPhaul “just blew it off and walked 

past” Officer Robinson and proceeded to exit the bathroom. Id. at 48. To 

prevent McPhaul from leaving, Officer Robinson grabbed McPhaul’s right arm

“to secure him in handcuffs[,]” but McPhaul physically pulled away. Id. at 49. 

Officer Robinson attempted to pull McPhaul back toward him. Officer Bentley, 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 4 of 14

who had been unable to locate McPhaul in the bunk area, went to the bathroom 

area where he initially observed McPhaul walk ahead of Officer Robinson out 

of the bathroom and pull away as Officer Robinson tried to get him in 

handcuffs.

[5] Therefore, Officer Bentley immediately assisted by making contact with 

McPhaul, and all three fell to the ground in the walkway of the bathroom. A 

physical struggle to restrain McPhaul ensued. Officer Bentley secured 

McPhaul’s upper body and Officer Robinson attempted to secure his legs; 

however, McPhaul was “kicking frantic[ally]” and, at some point, drew his arm 

back as if he intended to punch Officer Bentley. Id. at 50. Officer Robinson 

grabbed McPhaul’s arm before McPhaul was able to take a swing. McPhaul 

took Officer Bentley’s glasses from his face and bent them. At some point, 

McPhaul “started going for [Officer Bentley’s] right eye[.]” Id. at 78. Officer 

Bentley testified that he “could feel [McPhaul’s] finger . . . applying pressure to

. . . [his] right eye.” Id.

[6] The officers repeatedly ordered McPhaul to roll over on his stomach and place

his hands on his back, but McPhaul did not comply and continued to forcibly 

resist their attempts to restrain him. Officer Garret arrived and delivered a

defensive tactic to McPhaul enabling the officers to move McPhaul onto his 

stomach. Eventually, through the joint effort of the officers, McPhaul was 

restrained and escorted to an isolation cell. As a result of the altercation, 

Officer Robinson sustained an abrasion to his face and suffered from a 

headache, and Officer Bentley had some redness to his right eye.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 5 of 14

[7] MCCC Supervisor Mason Brizendine, who had finished his shift at 4:00 p.m. 

that day, received a phone call notifying him of the incident with McPhaul. 

The following morning, Brizendine reviewed the incident reports from the 

officers involved in the altercation, as well as the video footage involving 

McPhaul. Brizendine recorded the footage of the incident, downloaded the 

footage from 4:57 p.m. to 5:00 p.m. to a disc, and provided it to the Madison 

County Sheriff’s Office. McPhaul filed a grievance alleging that, at 4:15 p.m. 

on August 20, 2018, he had informed an officer that he wished to speak to a 

supervisor to which the officer responded, “get away from my window before 

[I] throw you in isolation and my name is irrelevant[.]” Exhibits at 11. 

McPhaul also alleged that he was assaulted during the charged incident and 

suffered injuries. On September 12, 2018, McPhaul submitted a request to 

Brizendine for “all documents[,] recordings related to the incident – assault that 

occurred on 8-20-18[.]” Id. at 13.

[8] The State subsequently charged McPhaul with two counts of battery resulting in 

bodily injury to a public safety official, Level 5 felonies, and criminal mischief, 

a Class B misdemeanor. Notably, before trial, McPhaul filed a Notice of 

Meritorious Self Defense, a Motion for Specific Discovery requesting the full 

video footage from the date of the incident, and a Motion to Preserve Video 

Evidence. The day before trial, the trial court held a status hearing during 

which defense counsel alleged that the MCCC failed to preserve full video 

evidence from August 20. Following voir dire, the trial court held a hearing to 

address McPhaul’s pending issues during which Brizendine testified that he 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 6 of 14

preserved video evidence from 4:57 p.m. to 5:00 p.m. on August 20, which was 

consistent with the incident reports he had received from the officers involved 

in the altercation. However, footage automatically deletes after roughly twentynine to thirty-two days unless otherwise downloaded or preserved. Thus, any 

other video footage from August 20, including the interaction that McPhaul 

alleged had occurred forty-five minutes prior to the charged incident did not 

exist. McPhaul verbally moved to dismiss and for a mistrial due to Brady

violations, namely failure to preserve all video evidence from that day. The 

trial court took the matter under advisement but ultimately denied McPhaul’s 

Motion to Dismiss and/or for Mistrial, reasoning:

The Court again continues to see this as an issue that is – could 

be attack of the investigation, what was done, what wasn’t done, 

which certainly can go to the strength and credibility of the 

State’s case. . . . [A] lot of the arguments that [defense counsel] 

make[s] . . . are appropriate in the sense in how you wish to cross 

examine this case and how you intend on behalf of your client to 

possibly question the cred[ibility] of this case. The Court sees 

these being pertinent to those issues rather than this being viewed 

through a Brady examination.

Tr., Vol. I at 240. The matter proceeded to jury trial and at the conclusion 

thereof McPhaul tendered an instruction on self-defense, which the trial court 

refused to give. McPhaul was found guilty as charged and sentenced to an 

aggregate sentence of six years, with three years executed in the DOC and three 

years suspended. McPhaul now appeals. Additional facts will be provided as 

necessary.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 7 of 14

Discussion and Decision 

I. Motion to Dismiss

[9] McPhaul argues that the “trial court abused its discretion in denying [his] 

motion to dismiss and motion for mistrial.” Appellant’s Brief at 8 (emphasis 

added). The State, on the other hand, argues that the trial court ruled on a 

motion for mistrial, not a motion to dismiss, because, when asked by the trial 

court, defense counsel clarified that it was a motion for a mistrial. We disagree 

with the State and conclude that McPhaul moved to dismiss his case.

[10] After voir dire and outside the presence of the jury, the trial court held a hearing 

to address McPhaul’s pending issues before beginning the presentation of 

evidence. When asked whether McPhaul filed a formal motion to dismiss, 

defense counsel clarified, “No, actually Judge [it is] a Motion for Mistrial 

caused by Brady Issues.” Tr., Vol. I at 156.1 However, throughout the 

remainder of the hearing, McPhaul essentially argued for dismissal of his case 

due to the alleged failure to preserve evidence, evidence that no longer exists

and that he claims would have demonstrated that he acted in self-defense. 

Ultimately, the trial court denied what it characterized as McPhaul’s “Motion 

to Dismiss and/or for a Mistrial.” Id. at 231. Although the trial court 

 

1

In Brady v. Maryland, the United States Supreme Court held that “the suppression by the prosecution of 

evidence favorable to an accused upon request violates due process where the evidence is material either to 

guilty or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. 83, 87

(1963).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 8 of 14

characterized it as such, a motion to dismiss for failure to preserve evidence and 

a motion for a mistrial are analyzed differently. On appeal, McPhaul argues 

the State’s “failure to preserve the requested [video] evidence which was 

potentially useful to [him] was in bad faith and a clear violation of his due 

process rights that warranted a dismissal of this cause.” Appellant’s Br. at 11. 

Ultimately, the substance of McPhaul’s argument and the authority he cites 

leads this court to believe the relief McPhaul sought was available only through 

a motion to dismiss. As such, we now evaluate whether the trial court erred in 

denying his motion. 

[11] We review a trial court’s denial of a motion to dismiss for an abuse of 

discretion. Ceaser v. State, 964 N.E.2d 911, 918 (Ind. Ct. App. 2012), trans. 

denied. We therefore reverse only where the trial court’s decision is clearly 

against the logic and effects of the facts and circumstances before it. Id.

[12] Again, the crux of McPhaul’s argument is that he was denied due process

requiring dismissal of the case because MCCC acted in bad faith by failing to 

preserve all requested video evidence from August 20, including video of an 

alleged encounter forty-five minutes prior to the charged incident. In Arizona v. 

Youngblood, the United States Supreme Court held that “unless a criminal 

defendant can show bad faith on the part of the police, failure to preserve 

potentially useful evidence does not constitute a denial of due process of law.” 

488 U.S. 51, 58 (1988). “Evidence is merely potentially useful if ‘no more can 

be said than that it could have been subjected to tests, the results of which might 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 9 of 14

have exonerated the defendant.’” State v. Durrett, 923 N.E.2d 449, 453 (Ind. Ct. 

App. 2010) (quoting Youngblood, 488 U.S. at 57).

[13] McPhaul claims the prior encounter “ultimately led to him being assaulted by 

corrections officers” in the charged incident and this evidence would have been 

potentially useful to him at trial. Appellant’s Br. at 10. However, we fail to see 

how evidence of an alleged encounter that occurred forty-five minutes prior to 

the charged incident provides any evidence that McPhaul was innocent or 

supports his theory that he acted in self-defense in the later altercation that was 

instigated when he repeatedly failed to comply with commands and physically 

resisted, causing injury to the officers. See Durrett, 923 N.E.2d at 453. 

Nonetheless, McPhaul attempts to demonstrate the State’s2 bad faith by 

characterizing the timing of the charges as suspicious because they were filed 

thirty-five days after the incident and just a few days after video evidence not 

saved to a disc would be automatically deleted. Additionally, McPhaul asserts 

that Brizendine decided to preserve only the three-minute portion of the footage 

he determined to be relevant and for the sole purpose of prosecuting McPhaul.

[14] Based on our review of the record, we are unpersuaded that MCCC or the State 

acted in bad faith with respect to the video evidence. At the hearing, 

Brizendine testified that he determined what portions of the footage to record 

and save. He explained, in doing so, “My responsibility and what my priority 

 

2 McPhaul argued to the trial court that the evidence was manipulated by a state actor, namely Brizendine, 

because he is paid by the State of Indiana. See Tr., Vol. I at 184, 201.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 10 of 14

was to clip the footage consistent with the incident that occurred. What caused 

the Officers to enter the dormitory and what ensued there after [sic].” Tr., Vol. 

I at 172. Brizendine chose to record and save the footage from 4:57 to 5:00 

p.m. because it was “consistent with the reports” he had received from the 

officers involved in the altercation. Id. at 182. He also explained that unless 

recorded, all footage captured on MCCC’s surveillance is automatically deleted 

by the system after twenty-nine to thirty-two days, depending on the camera. 

Brizendine provided the incident reports and downloaded footage to the sheriff, 

who testified that he prepared a probable cause affidavit requesting criminal 

charges based on the information Brizendine provided. With respect to the 

timing, the sheriff testified at trial that because McPhaul was already detained, 

“there was nothing . . . so pressing that [the affidavit] needed to be completed 

right away” and he decided “to prepare the paperwork on a later date[.]” Tr.,

Vol. II at 193. Moreover, the sheriff was unaware that video footage 

automatically deletes until these proceedings began and had no reason to ask 

Brizendine to preserve additional evidence. With the evidence he had already 

received, “there was nothing else that [he] would be looking for.” Id. at 197. 

The sheriff provided the affidavit and evidence to the prosecutor’s office on 

September 7, 2018. 

[15] We acknowledge that McPhaul referenced the 4:15 p.m. incident in his 

grievance filed on August 22 and subsequently filed several requests for footage 

to be preserved before the twenty-nine to thirty-two days had passed. However, 

McPhaul’s requests specifically referenced “the incident - assault that occurred 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 11 of 14

on 8-20-18 by your hired help[.]” Exhibits at 12, 13.3 Therefore, MCCC staff 

had no reason to believe they needed to preserve any footage before that 

incident that occurred. McPhaul has failed to establish any bad faith by MCCC 

or the State. 

[16] As previously indicated, defense counsel argued his position to the trial court. 

However, following evidence and argument at the hearing on the motion, the 

trial court ultimately denied McPhaul’s motion, explaining it disagreed that the 

alleged evidentiary issues require a Brady analysis. Instead, the trial court stated 

that it viewed the argument as an attack of the investigation, namely “what was 

done, what wasn’t done, which certainly can go to the strength and credibility 

of the State’s case.” Tr., Vol. I at 240. This is a reasonable interpretation of 

McPhaul’s motion and the applicable law. Therefore, we cannot conclude the 

trial court abused its discretion in denying McPhaul’s motion to dismiss.

II. Jury Instruction

[17] Next, McPhaul contends that the trial court erred when it refused to provide the 

jury with an instruction on self-defense. Specifically, McPhaul argues his 

proposed jury instruction was a correct statement of the law and the evidence 

presented at trial “clearly established that an instruction on self-defense was 

warranted.” Appellant’s Br. at 15. We disagree. 

 

3 We also note that McPhaul filed these requests on September 7 and 12, weeks after the incident occurred 

and after Brizendine already submitted the relevant information to the sheriff. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 12 of 14

[18] The giving of jury instructions is a matter within the sound discretion of the 

trial court, and we review the trial court’s refusal to give a tendered instruction 

for an abuse of that discretion. Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct. 

App. 2001). An abuse of discretion occurs if the instructions, considered as a 

whole and in reference to each other, mislead the jury as to the applicable law. 

Smith v. State, 777 N.E.2d 32, 34 (Ind. Ct. App. 2002), trans. denied. 

Generally, we will reverse a trial court for failure to give a 

tendered instruction if: (1) the instruction is a correct statement of 

the law; (2) it is supported by the evidence; (3) it does not repeat 

material adequately covered by other instructions; and (4) the 

substantial rights of the tendering party would be prejudiced by 

failure to give it. 

Howard, 755 N.E.2d at 247. 

[19] “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) (2013)

(emphasis added). A person is also justified in using reasonable force against a 

public servant in some circumstances outlined by statute. Ind. Code § 35-41-3-

2(i) (2013). A correctional police officer is considered a public servant. Ind. 

Code § 35-41-3-2(b) (2013); Ind. Code § 35-31.5-2-185(a)(1). However, a person 

is not justified in using force against a public servant if the person reasonably

believes the public servant is acting lawfully or engaged in the lawful execution 

of the public servant’s official duties. Ind. Code § 35-41-3-2(j)(4) (2013).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 13 of 14

[20] MCCC correctional officers “provide safety and security for all three . . . 

dorms[, and m]ake sure that everybody is safe[.]” Tr., Vol. II at 41. The State 

maintains that even if McPhaul provided a correct instruction, there was still 

“no evidence to support a conclusion that the correctional officers were not 

engaged in the lawful execution of their duties.” Brief of Appellee at 21. The 

evidence demonstrates that McPhaul’s behavior in throwing his tray against the 

control room window violated MCCC rules and officers were instructed to 

remove McPhaul from the dormitory floor. When Officer Robinson asked 

McPhaul to “cuff up,” he ignored the instruction, walked past Officer 

Robinson, repeatedly ignored commands, and forcibly resisted while three 

officers attempted to restrain him. Tr., Vol. II at 47. There is no doubt that the

correctional officers were engaged in the lawful execution of their duties, as 

instructed, and the record reveals no evidence of self-defense. As such, the trial 

court did not abuse its discretion by refusing to give the jury an instruction on 

self-defense.4

Conclusion

[21] For the reasons set forth above, we conclude the trial court did not err in 

denying McPhaul’s motion to dismiss or in refusing to give a jury instruction on 

self-defense. Accordingly, the judgment of the trial court is affirmed. 

 

4 Because this issue is dispositive, we need not address whether the instruction McPhaul tendered was a 

correct statement of law.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-34 | August 30, 2019 Page 14 of 14

[22] Affirmed.

Mathias, J., and Pyle, J., concur.