MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Dec 06 2019, 9:07 am
court except for the purpose of establishing
                                                                             CLERK
the defense of res judicata, collateral                                  Indiana Supreme Court
                                                                            Court of Appeals
estoppel, or the law of the case.                                             and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Joel M. Schumm                                          Curtis T. Hill, Jr.
Indiana University                                      Attorney General of Indiana
Robert H. McKinney School of Law
                                                        Tiffany A. McCoy
Appellate Clinic                                        Deputy Attorney General
Austin Lensing                                          Indianapolis, Indiana
Certified Legal Intern
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Demanda Smith,                                          December 6, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-1395
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Angela D. Davis,
Appellee-Plaintiff                                      Judge
                                                        The Honorable Hugh Patrick
                                                        Murphy, Magistrate
                                                        Trial Court Cause No.
                                                        49G16-1811-F6-40043



Baker, Judge.



Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019                 Page 1 of 6
[1]   Demanda Smith appeals her conviction for Class A Misdemeanor Domestic

      Battery,1 arguing that the trial court erred by refusing to give a jury instruction

      on self-defense. Finding no error, we affirm.


                                                    Facts
[2]   On November 9, 2018, Omar Barrios was at his home with some friends. At

      some point, Smith, who was Barrios’s ex-girlfriend, came to Barrios’s home

      uninvited. Barrios’s roommate asked him to let her come in, and he complied.

      Sometime later, Barrios felt Smith grab him from behind and bite him on the

      left side of his face near his cheek. She also bit his chin, the right side of his

      face, and multiple places on his back. At some point, someone pulled Smith off

      Barrios. Barrios later went to the emergency room, where he reported intense

      pain and received a tetanus booster, antibiotics, and pain medication. Medical

      personnel also had to close a laceration on the right side of his face. By the time

      of Smith’s jury trial approximately five months later, some of Barrios’s wounds

      were still healing and some of them had scarred.


[3]   Someone called 911 and reported that Smith was “mutilating [Barrios] with her

      teeth . . . [and] biting pieces of his body.” Tr. Ex. 12. The officers who

      responded found Smith in a bedroom; they noticed that she was intoxicated.




      1
          Ind. Code § 35-42-2-1.3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019   Page 2 of 6
      Smith had blood around her mouth and on her shirt but had no visible injuries

      other than a small scratch on her face.


[4]   On November 6, 2018, the State charged Smith with Level 6 felony battery

      resulting in moderate bodily injury, Class A misdemeanor domestic battery,

      Class A misdemeanor battery resulting in bodily injury,2 and Class A

      misdemeanor criminal trespass.3


[5]   Smith’s jury trial took place on April 24, 2019. At trial, Smith testified to a

      different version of events. She claimed that at some point during the party, she

      went to Barrios’s bedroom and found him with another woman. According to

      Smith, when Smith asked Barrios what he was doing, the other woman grabbed

      Smith by her head and hair and scratched her face. Smith then felt someone’s

      hands around her neck and lost consciousness; the next thing she remembered

      was sitting outside on the ground in handcuffs. One of the jurors asked Smith

      whether she remembered biting Barrios; she responded that she “didn’t touch

      [him].” Tr. Vol. II p. 129.


[6]   Following the presentation of evidence, Smith tendered a self-defense jury

      instruction. The trial court refused to give the instruction because Smith had

      denied touching Barrios at all; therefore, the trial court found that it was not




      2
          The State later dismissed this charge.
      3
       During the jury trial, the trial court granted Smith’s motion for a directed verdict on the criminal trespass
      charge.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019                      Page 3 of 6
       “appropriate to give [a self-defense i]nstruction; I think it would be misleading.”

       Id. at 132.


[7]    The jury found Smith guilty of Class A misdemeanor domestic battery but was

       unable to reach a verdict on Level 6 felony battery resulting in moderate bodily

       injury. On May 20, 2019, the trial court sentenced Smith to 365 days in jail,

       with 363 days suspended to probation. Smith now appeals.


                                    Discussion and Decision
[8]    Smith’s sole argument on appeal is that the trial court erred when it refused to

       give her proffered jury instruction on self-defense. On review of a trial court’s

       refusal to give a proposed jury instruction, we consider whether the instruction

       correctly states the law, is supported by the evidence, and is covered in

       substance by the other jury instructions. McCowan v. State, 27 N.E.3d 760, 763-

       64 (Ind. 2015). At issue here is whether the self-defense instruction was

       supported by the evidence.


[9]    Generally, a defendant is entitled to have the jury instructed on any defense

       theory that has some foundation in the evidence. Burton v. State, 978 N.E.2d

       520, 525 (Ind. Ct. App. 2012). This rule applies even if the evidence is weak

       and/or inconsistent, so long as the evidence has some probative value. Id.


[10]   A valid claim of self-defense is a legal justification for an otherwise criminal act.

       McCullough v. State, 985 N.E.2d 1135, 1138 (Ind. Ct. App. 2013). Put another

       way, a person may be justified in using reasonable force against another person


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019   Page 4 of 6
       to protect the person or a third party from what the person reasonably believes

       to be an imminent use of unlawful force. Ind. Code § 35-41-3-2(c).


[11]   Here, even if we were to credit Smith’s version of events, her testimony can be

       summarized as follows: (1) she found Barrios and another woman in a

       bedroom; (2) when Smith asked what they were doing, the other woman

       attacked Smith, who tried to defend herself; (3) Smith then felt hands around

       her neck and lost consciousness.4 Smith explicitly denied touching Barrios and

       is not charged with anything related to force used against the other woman.

       Even if all of this were true, therefore, Smith does not allege that she committed

       an act—i.e., battering Barrios—that would otherwise be criminal had she not

       been acting in self-defense. At no point did she state that she had touched

       Barrios—instead, she specifically denied it. Consequently, her theory of

       defense does not warrant a self-defense jury instruction because there is no

       evidence in the record supporting it.


[12]   Smith directs our attention to Young v. State in support of her argument, but we

       find that case inapposite. 699 N.E.2d 252 (Ind. 1998). In Young, our Supreme

       Court found that Young, who had been convicted of murder, was entitled to a

       new trial when the trial court refused to give an instruction on the lesser-

       included offense of reckless homicide. The trial court based its refusal on




       4
        Likewise, the State’s version of events does not support a self-defense instruction because its evidence
       showed that Smith, without provocation, attacked Barrios from behind, biting him multiple times on his face
       and back.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019                Page 5 of 6
       Young’s alibi defense, reasoning that if he denied committing the act altogether,

       he was not entitled to an instruction on a lesser-included offense. The State’s

       evidence, including eyewitness accounts, showed that Young shot the victim.

       Based on that evidence, our Supreme Court found that the record contained

       “conflicting and obscure” evidence as to Young’s mental state, leading to a

       “genuinely disputed matter” for the jury to resolve. Id. at 256-57.5 Therefore,

       the Young Court reversed, holding that the trial court should have given the

       proffered jury instruction.


[13]   Here, in contrast, there is no evidentiary dispute. Either (1) Smith attacked

       Barrios without provocation; or (2) Smith was attacked by the other woman but

       did not ever touch Barrios. In either case, self-defense is not implicated, and

       Young does not lead to a different result. The trial court in this case did not err

       by refusing to give the tendered jury instruction.


[14]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       5
         We also note that there is a specific test for jury instructions on lesser-included offenses that applied in
       Young and does not apply here. First, the trial court must decide whether the lesser-included offense is
       inherently or factually included within the charged crime. Young, 699 N.E.2d at 255. Next, if the first prong
       is satisfied, the trial court must consider whether the evidence provided by the parties creates a serious
       evidentiary dispute about the element or elements that distinguish the greater from the lesser offense. Id. This
       test, which is not relevant to this appeal, is yet another reason that Young is not applicable to the case before
       us.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019                     Page 6 of 6
