MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                      Jul 26 2019, 7:48 am

regarded as precedent or cited before any                                      CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Marielena Duerring                                        Curtis T. Hill, Jr.
South Bend, Indiana                                       Attorney General of Indiana
                                                          Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Samantha L. Lotaki,                                       July 26, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-376
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Margot F. Reagan,
Appellee-Plaintiff.                                       Judge
                                                          The Honorable Julie P. Verheye,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          71D04-1806-CM-2339



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-376 | July 26, 2019                       Page 1 of 7
                                           Case Summary
[1]   For her actions during a bar fight, Samantha L. Lotaki (“Lotaki”) was

      convicted of Disorderly Conduct, as a Class B misdemeanor.1 On appeal, she

      presents the sole issue of whether the State presented sufficient evidence to

      rebut her claim of self-defense. We affirm.



                                Facts and Procedural History
[2]   In the early morning of June 29, 2018, South Bend Police Department Officer

      Joseph Galea (“Officer Galea”) responded to a call that there was “a large fight

      involving pool sticks” at the Peddler’s Pub. (Tr. 4.) On arrival, several men

      outside told the officer he “needed to get in there in a hurry.” (Tr. 4.) From the

      parking lot, he could see “pool sticks flying and several people involved in a

      melee[.]” (Tr. 7.) Inside he encountered a “chaotic” scene, with “tables and

      chairs kicked over, bottles broken all over the floor, some blood dripping from

      the corner.” (Tr. 6-7.) He saw approximately six or seven women had

      cornered a woman later identified as Adriana Diaz (“Diaz”) over by a pool

      table. Several women were striking at Diaz, and she was bleeding from above

      her eye. Officer Galea then saw Lotaki punch Diaz in the head. The officer

      immediately entered the fray, grabbed Lotaki, and took her outside, where he

      placed her in handcuffs until backup arrived.




      1
          Ind. Code § 35-45-1-3(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-376 | July 26, 2019   Page 2 of 7
[3]   Lotaki was charged with Battery Resulting in Bodily Injury, as a Class A

      misdemeanor (“Count 1”),2 and disorderly conduct. The State later moved to

      dismiss Count 1. Following a bench trial at which both Officer Galea and

      Lotaki testified, Lotaki was convicted of the remaining charge. She now

      appeals.



                                       Discussion and Decision
[4]   A person who recklessly, knowingly, or intentionally engages in fighting or in

      tumultuous conduct commits disorderly conduct. I.C. § 35-45-1-3(a)(1). Lotaki

      does not dispute that she engaged in disorderly conduct. Rather, she challenges

      the sufficiency of the evidence presented to rebut her claim of self-defense.


[5]   It is the policy of the State of Indiana that people have a right to defend

      themselves and third parties from physical harm and crime. I.C. § 35-41-3-2(a).

      “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.” I.C. § 35-41-3-2(c). “A valid claim of

      self-defense is legal justification for an otherwise criminal act.” Coleman v. State,

      946 N.E.2d 1160, 1165 (Ind. 2011). To prevail on a self-defense claim, a

      defendant must 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.




      2
          I.C. § 35-42-2-1(c)(1), (d)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-376 | July 26, 2019   Page 3 of 7
      Weedman v. State, 21 N.E.3d 873, 891-92 (Ind. Ct. App. 2014), trans. denied. The

      amount of force used by the defendant must be proportionate to the urgency of

      the situation. Id. at 892. Thus, when a person has used more force than

      necessary to repel an attack, the right to self-defense is extinguished, and the

      victim becomes the perpetrator. Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind.

      Ct. App. 1999).


[6]   When a defendant raises a claim of self-defense and the claim finds support in

      the evidence, the State bears the burden of negating at least one of the necessary

      elements. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). On appeal, the

      standard of review for a challenge to the sufficiency of evidence to rebut a claim

      of self-defense is the same as for any sufficiency of the evidence claim. Id. at

      801. We neither reweigh the evidence nor judge witness credibility. Id. If there

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

      fact, then the judgment will not be disturbed. Id. 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.


[7]   At trial, Lotaki testified that the fracas began when one of her friends got into a

      verbal altercation with a woman in Diaz’s group. She further testified that she

      felt “unsafe” and “threatened” at the time she struck Diaz (Tr. 20), and that she

      only used physical force after she was first “physically assaulted.” (Tr. 19.)

      Thus, Lotaki argues that she raised a valid claim of self-defense because she had

      a right to be in the bar, did not instigate the fight, and “in throwing a single

      punch reacted reasonably to the threat that she faced[.]” (Appellant’s Br. 4.)

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-376 | July 26, 2019   Page 4 of 7
      She also contends that the State failed to negate her claim of self-defense

      because there was no evidence that her actions were disproportionate to any

      assault that had been perpetrated on her.


[8]   The evidence fairly establishes that Lotaki had a right to be at the Peddler’s Pub

      and did not start the brawl. However, we do not reweigh evidence or the

      credibility of witnesses on appeal. Wilson, 770 N.E.2d at 801. Notwithstanding

      Lotaki’s testimony that she felt threatened and had been attacked, Officer Galea

      testified that at the time Lotaki struck Diaz in the head, Diaz was backed into a

      corner, several women were striking at Diaz, and Diaz was bleeding above the

      eye. Officer Galea’s testimony was sufficient evidence from which the trial

      court could have reasonably concluded that Lotaki (1) was not in reasonable

      fear or apprehension of bodily harm at the time she struck Diaz, or (2) used

      more force than necessary to repel any attack that may have previously

      occurred.


[9]   Affirmed.


      Pyle, J., concurs.
      Riley, J., concurs in result with separate opinion.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-376 | July 26, 2019   Page 5 of 7
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Samantha L. Lotaki,                                       Court of Appeals Case No.
                                                                 19A-CR-376
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge, concurring in result.


[10]   I agree that Lotaki could not successfully raise a claim of self-defense, but I

       write separately because I believe that a more persuasive rationale exists for our

       holding today. The self-defense statute provides that 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.


       Ind. Code § 35-41-3-2(g)(3) (2013). Put another way, “[a] mutual combatant,

       whether or not the initial aggressor, must declare an armistice before he or she

       may claim self-defense.” Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). Here,

       Lotaki was in a group of women, one of whom had a verbal altercation with


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-376 | July 26, 2019          Page 6 of 7
Diaz. As noted above, by the time Lotaki struck Diaz, Diaz had been backed

into a corner where she was crouching down, and several women were striking

Diaz. Diaz was not charging Lotaki or menacing her at that point. The

reasonable inference to be made from Lotaki’s continued presence after Diaz

had been subdued by others was that Lotaki was a willing participant in the

fight when she struck Diaz. Lotaki never claimed that she attempted to

withdraw prior to striking Diaz, and, therefore, she was precluded from

claiming self-defense. For these reasons, I concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-376 | July 26, 2019   Page 7 of 7
