MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any May 11 2020, 8:40 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kenneth Branham, May 11, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2042
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Mark D. Stoner,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G06-1807-MR-23319
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2042 | May 11, 2020 Page 1 of 8
Case Summary
[1] Kenneth Branham appeals his convictions for murder and level 2 felony
robbery, claiming that the evidence is insufficient to rebut his claim of self-
defense. We affirm.
Facts and Procedural History
[2] The facts most favorable to the verdict are as follows. On June 18, 2018, Scott
Forsberg hosted a cookout for a few of his neighbors. Branham came to
Forsberg’s cookout and began drinking alcohol. A while later, another
neighbor, Jeffrey Bowers, arrived. Bowers was not acquainted with Branham
but noticed that Branham appeared to be “belligerently drunk.” Tr. Vol. 2 at
142, 147. Not long after, Sheila Bennett arrived. She did not drink alcohol, but
she noticed that the three men were drinking alcohol and that Branham was
wearing black swim trunks and black and white Nike flipflops. Forsberg had
his handgun lying in front of him on the patio table, which Bennett and Bowers
characterized as normal behavior for Forsberg. During the cookout, Branham
taunted Bowers and threatened to “kick [his] a*s,” so Bowers left. Id. at 144.
After a while, Forsberg took a quick trip to a nearby liquor store to buy more
alcohol. Meanwhile, Branham continued to sit at the table and drink alcohol.
[3] A few minutes after Forsberg left, Bennett walked to her apartment to use the
restroom but returned to the cookout because she did not have her keys. At
about the same time, Forsberg returned from the liquor store. Forsberg placed
bottles of vodka and fruit juice on the table, where Branham was still seated.
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Suddenly, without either man having said a word, Branham “jumped up,
picked the gun up off the table[,] and shot [Forsberg].” Id. at 158. Forsberg fell
to the ground and said, “Dude you just shot me.” Id. Branham demanded
Forsberg’s cellphone, money, and keys. He waved the handgun around and
ordered Bennett to give him her cellphone and get into the swimming pool.
Bennett gave him her phone because she “was afraid he’d kill [her] if [she]
didn’t.” Id. at 159. Branham returned his attention to the injured Forsberg,
who had fallen from a seated position to his back, and again demanded money
and keys. Before Bennett ran from the property, she heard Branham threaten to
shoot Forsberg again if he did not stay quiet and order Forsberg, “Give me your
f**king car keys and all your f**king money.” Id. at 160. Branham kicked
Forsberg’s face, rummaged through his pockets, and kicked him again.
Surveillance camera footage recovered from Forsberg’s house captured several
of the events, beginning with the shooting and including Branham pocketing
Bennett’s phone, searching Forsberg’s clothing and vehicle, and returning to
search Forsberg’s pockets and grab an item from Forsberg’s fingers before
leaving the scene. State’s Exs. 63A, 63B, and 64.
[4] Meanwhile, Bennett ran to a nearby auto-parts store and phoned 911. Shortly
thereafter, Indianapolis Metropolitan Police Department officers arrived at the
scene and found Forsberg on the ground, bleeding from his left chest/upper
abdomen. Forsberg was transported by ambulance to a nearby hospital. Police
recovered several items, including black and white flipflops, a beer can, and a
plastic cup. Subsequent DNA and fingerprint tests linked the items to
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Branham. Forsberg underwent surgery and remained hospitalized until his
death on July 12, 2018, as a result of complications from the gunshot wound.
[5] The State charged Branham with murder, felony murder, and level 2 felony
robbery. During his jury trial, Branham raised a self-defense claim, alleging
that Forsberg pulled the handgun out of his pocket, pointed it at Branham’s
face, and said, “I’m going to blow your f**king head off, I’ll kill you.” Tr. Vol.
3 at 45. Then, according to Branham, he jumped up and turned over the table,
and a twenty- to thirty-second struggle for the handgun ensued. Branham
claims that he wrested control of the handgun and accidentally shot Forsberg.
He testified that he stole the cellphone so that he could use it to call 911. There
is no evidence of him making that call.
[6] The jury convicted Branham as charged, and the trial court entered judgment
on his murder and robbery convictions and sentenced him to an aggregate sixty-
five-year term. Branham now appeals. Additional facts will be provided as
necessary.
Discussion and Decision
[7] Branham challenges the sufficiency of the evidence to rebut his self-defense
claim. We review a challenge to the sufficiency of evidence to rebut a self-
defense claim using the same standard as for any sufficiency of evidence claim.
Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2003). We neither reweigh evidence
nor judge witness credibility. Id. If sufficient evidence of probative value
supports the verdict, it will not be disturbed. Id. A single witness’s
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uncorroborated testimony is sufficient to support a conviction. Bailey v. State,
979 N.E.2d 133, 135 (Ind. 2012). If a defendant is convicted despite his 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. Wilson, 770
N.E.2d at 800–801.
[8] Branham admits that he shot Forsberg but claims that he did so in self-defense.
“A valid claim of defense of oneself or another person is legal justification for
an otherwise criminal act.” Morell v. State, 933 N.E.2d 484, 491 (Ind. Ct. App.
2010). “A person is justified in using reasonable force against any other person
to protect the person … from what the person reasonably believes to be the
imminent use of unlawful force.” Ind. Code § 35-41-3-2(c). To prevail on a
self-defense claim, the 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.” Morell,
933 N.E.2d at 491. “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. The State satisfies this burden by presenting evidence of
probative value from which a reasonable trier of fact could have found that the
defendant did not validly act in self-defense and that he was guilty of the
offenses charged. Id. at 492.
[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
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other person nevertheless continues or threatens to continue
unlawful action.
Ind. Code § 35-41-3-2(g)(3).
[9] The record supports Branham’s assertion that as an invited guest, he had a right
to be at Forsberg’s cookout. Branham maintains that Forsberg was the
instigator/aggressor and that he acted merely out of fear of death or serious
bodily injury. Specifically, he claims that Forsberg pulled the handgun out of
his pocket and said, “I’m going to blow your f**king head off, I’ll kill you.” Tr.
Vol. 3 at 45. He maintains that he and Forsberg struggled over the handgun for
about twenty to thirty seconds before he wrested control of it and accidentally
shot Forsberg. With respect to his theft of the cellphone, Branham claims that
he needed to take it so that he could phone 911. There is no record of his ever
having made that call.
[10] Branham asserts that a close review of the video surveillance footage supports
his testimony and clearly establishes his self-defense claim. He therefore
submits that this is one of the narrow circumstances in which we are permitted
to reweigh the evidence in his favor. See Love v. State, 73 N.E.3d 693, 699 (Ind.
2017) (articulating narrow exception when reviewing court may reweigh facts
in favor of defendant’s self-defense claim, if video evidence “indisputably
contradicts the [factfinder’s interpretation] … such that no reasonable person
could view the video and conclude otherwise.”). This applies only where the
video is a clear and “complete depiction of the events at issue.” Id. “In cases
where the video evidence is somehow not clear or complete or is subject to
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different interpretations, we defer to the [factfinder’s] interpretation.” Id. at
699-700.
[11] Here, the video evidence is incomplete. It comprises footage from two
stationary home surveillance cameras and does not include sound. Due to the
stationary position of the cameras, there is no footage involving the events
taking place at the table, where the handgun had been placed, where Branham
sat drinking, and where, by all accounts, the conflict began. Thus, many of the
significant events were not within either camera’s view. The first significant
event captured on video was the shooting itself – with the entrance of Branham
and Forsberg into the left side of the frame and with Branham advancing and
Forsberg backing up just as Branham shot him. The video also captured
Branham’s initial search of Forsberg at gunpoint, his pocketing of a cellphone,
Bennett’s abrupt turn and rapid departure, and Branham’s apparent lack of
urgency to call 911, as evidenced by his protracted and repeated searches for
Forsberg’s valuables after the shooting. The video simply did not capture the
most controversial events, those immediately before the violence erupted.
Moreover, nothing in the video depicts Branham as having been in fear for his
life. In short, the video evidence neither supports Branham’s self-defense claim
nor contradicts Bennett’s eyewitness testimony.
[12] In sum, Branham had a right to be at the cookout as Forsberg’s invited guest,
but beyond that, he has failed to establish that the State did not meet its burden
of rebutting his self-defense claim. The video evidence supports the jury’s
conclusion that Branham was at least a willing participant in, if not the
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instigator of, the violence. Branham’s testimony that Forsberg initiated the
violence by pointing the gun at him and threatening to kill him and that he shot
Forsberg accidentally after a long struggle for the handgun is controverted by
Bennett’s testimony that “[t]here was no struggle,” and that neither man said a
word before Branham suddenly shot Forsberg. Tr. Vol. 2 at 158, 163. The jury
was under no obligation to credit Branham’s self-serving, uncorroborated
version of the shooting. See McCullough v State, 985 N.E.2d 1135, 1139 (Ind. Ct.
App. 2013) (even where defendant undisputedly had right to be where he was at
time of shooting, the only evidence supporting his account was his self-serving
statements, and jury was not obligated to believe him), trans. denied. We decline
Branham’s request to reweigh the evidence in his favor. Accordingly, we
affirm.
[13] Affirmed.
Bailey, J., and Altice, J., concur.
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