MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Mar 12 2019, 10:14 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
Michael C. Borschel                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         George P. Sherman
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Onorio Caballero-Ramirez,                                March 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2358
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Mark D. Stoner,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         49G06-1605-F5-19111



Altice, Judge.


                                         Case Summary


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019                  Page 1 of 6
[1]   Onorio Caballero-Ramirez appeals his conviction, following a bench trial, of

      Level 6 felony battery. His sole contention on appeal is the that the State failed

      to present sufficient evidence to rebut his claim of self-defense.


[2]   We affirm.


                                       Facts & Procedural History


[3]   The facts favorable to the conviction follow. On the evening of April 2, 2016,

      Caballero-Ramirez went to the apartment of his former girlfriend, M.G., and

      their seven-year-old son, B.G. They had previously lived together as a family

      for several years. Although Caballero-Ramirez no longer lived there, he would

      visit from time to time. M.G. also had a five-year-old son, J.G., living with her

      and B.G.


[4]   Caballero-Ramirez was at the apartment when M.G. arrived home from work.

      He appeared upset with her and indicated that he wanted to go out to eat. She

      declined, and Caballero-Ramirez accused her of “going out with somebody

      else.” Transcript at 10. After the two began to argue, Caballero-Ramirez hit

      M.G.’s arm and squeezed it. M.G. responded by pushing Caballero-Ramirez

      away. She then fell to the floor. M.G. had a pre-existing back injury from

      work and warned Caballero-Ramirez not to hurt her because she “could end up

      handicapped.” Id. at 12. Caballero-Ramirez said he did not care what

      happened to M.G. and proceeded to angrily place his hands around the front of

      her throat. Caballero-Ramirez was on top of M.G., with his body weight on

      her. She pleaded with him to release her.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019   Page 2 of 6
[5]   During the altercation, B.G. came out of his bedroom to see what the yelling

      was about. Caballero-Ramirez was still on M.G., and B.G. asked his mother if

      he should go to the neighbor. When M.G. indicated yes, B.G. ran to the

      neighbor’s door and knocked for help. B.G. was nervous and scared, and J.G.

      was next to him crying. When Carol Menjivar answered the door, B.G.

      exclaimed, “call the police because my father is hitting my mother.” Id. at 46.

      Menjivar brought the children inside her apartment.


[6]   In the meantime, Caballero-Ramirez got up off M.G., shoving her once more,

      and then left. M.G. eventually called Menjivar, who came to M.G.’s apartment

      to help. M.G. was crying on the couch. Menjivar assisted M.G. and suggested

      they call the police, but M.G. refused because she was scared. M.G. made a

      police report on the morning of April 4, after her employer would not let her

      work due to her appearance. M.G. had significant bruising to her face/chin

      and right arm, as well as other scratches and contusions on her face and body.

      She was treated at the hospital for these injuries after speaking with the police.


[7]   Caballero-Ramirez was subsequently charged with a number of counts related

      to this event, some of which were later dismissed. On August 20, 2018, a bench

      trial was held on the three remaining counts – Level 5 felony strangulation

      (Count III), Level 6 felony battery in the presence of a child (Count V), and

      Class A misdemeanor battery resulting in bodily injury (Count VI). M.G. and

      Menjivar testified for the State, and Caballero-Ramirez testified in his own

      defense. The trial court found Caballero-Ramirez guilty of Counts V and VI

      but not guilty of Count III. At the sentencing hearing on September 4, 2018,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019   Page 3 of 6
      the trial court entered a conviction and sentence only on Count V, the Level 6

      felony. The court sentenced Caballero-Ramirez to two and one-half years with

      all but his time served suspended to probation. Caballero-Ramirez now

      appeals, arguing that the State failed to rebut his claim of self-defense.


                                          Discussion & Decision


[8]   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 claim.

      Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We consider only the

      probative evidence and reasonable inferences supporting the trial court’s

      decision. Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans.

      denied. We neither reweigh the evidence nor judge the credibility of witnesses.

      Wilson, 770 N.E.2d at 801. The trier of fact is entitled to determine which

      version of the incident to credit and is the sole judge of the effect that any

      discrepancies or contradictions might have on the outcome of the case. Scott v.

      State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied. If there is

      sufficient evidence of probative value to support the conclusion of the trier of

      fact, then the verdict will not be disturbed. Wilson, 770 N.E.2d at 801.


[9]   Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,

      984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “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). The person, however, is not justified in using force if,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019   Page 4 of 6
       among other things, “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).


[10]   To prevail on his self-defense claim, Caballero-Ramirez was required to show

       that he: “(1) was in a place where he had a right to be; (2) acted without fault;

       and (3) was in reasonable fear of apprehension of bodily harm.” Richardson v.

       State, 79 N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied. When a claim of

       self-defense finds support in the evidence, the State bears the burden of negating

       at least one of the necessary elements. Id. 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 beyond a reasonable doubt. Id.


[11]   On appeal, Caballero-Ramirez directs us to his own testimony, which stood in

       stark contrast to M.G.’s testimony. He testified that M.G. kicked him out of

       the apartment that night. As he gathered his things, according to Caballero-

       Ramirez, M.G. blocked his exit, demanded money, and attacked him,

       scratching and biting him. Caballero-Ramirez claimed that he grabbed her

       hands only to stop her from injuring him further.


[12]   We reject this blatant invitation to reweigh the evidence. M.G.’s testimony

       establishes that Caballero-Ramirez instigated the physical confrontation when

       she denied his request to have dinner with him. After Caballero-Ramirez hit


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019   Page 5 of 6
       and squeezed her arm, M.G. pushed him away and then she fell to the ground.

       Caballero-Ramirez then escalated the violence and climbed on top of her to

       continue the assault. Regardless of whether M.G. fought back, the evidence

       establishes that Caballero-Ramirez was the instigator of the violence, as well as

       a willing participant. Further, M.G.’s account of the attack is supported, at

       least in part, by the photographs of her various injuries, B.G.’s actions, and

       Menjivar’s testimony.


[13]   In light of the evidence favorable to the conviction, a “reasonable person could

       say that self-defense was negated beyond a reasonable doubt.” Richardson, 79

       N.E.3d 964. Accordingly, we must affirm Caballero-Ramirez’s battery

       conviction.


[14]   Judgment affirmed.


       Najam, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019   Page 6 of 6
