Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the                         Dec 12 2014, 9:13 am

purpose of establishing the defense of
res judicata, collateral estoppel, or the
law of the case.


ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS                               GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

                                               MONIKA PREKOPA TALBOT
                                               Deputy Attorney General
                                               Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

THOMAS BIRGE,                                  )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )    No. 49A02-1404-CR-231
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Carol Terzo, Judge
                           Cause No. 49F08-1307-CM-46305



                                    December 12, 2014

             MEMORANDUM DECISION - NOT FOR PUBLICATION


ROBB, Judge
                                  Case Summary and Issue

       Thomas Birge appeals his conviction of battery as a Class A misdemeanor. Birge

raises one issue for our review: whether sufficient evidence was presented to rebut his

defense of property claim. Concluding that sufficient evidence was presented, we affirm.

                                Facts and Procedural History

       The facts most favorable to the verdict reveal that on July 15, 2013, David Russell

accompanied Rose Osman to Birge’s home in order to remove a license plate from a

vehicle parked there. Before Russell could successfully remove the license plate, Birge

exited his home and told Russell not to touch the vehicle. In response, Russell stopped

what he was doing and stepped away from the vehicle.

       A heated argument between Birge and Russell ensued. At one point during the

argument, Birge left and returned with a broom handle. Upon returning, Birge repeatedly

struck Russell with the broom handle. In defense, Russell attempted to block the broom

handle with his arms. As the fight continued, Birge and Russell grabbed each other and

Birge hit Russell in the face with his fist “two or three times,” transcript at 8, resulting in

Russell losing consciousness. Consequently, Russell suffered bruising to his arms, a fat

lip, and a black eye.

       The State charged Birge with battery as a Class A misdemeanor. A bench trial

was held, and the trial court concluded the State proved beyond a reasonable doubt that

Birge was guilty of battery. Birge now appeals his conviction.

                                  Discussion and Decision

                                   I. Standard of Review

                                              2
        Initially, we observe that Birge does not argue that the elements of battery have

not been proved beyond a reasonable doubt. See Appellant’s Brief at 4 (discussing the

elements of battery and concluding “[t]he evidence at trial clearly establishes these

elements and [Birge] testified that he did strike [Russell].”). Rather, Birge argues that his

conviction for battery should be reversed because there was insufficient evidence to rebut

his claim of defense of property.

        A claim of “defense of property is analogous to the defense of self-defense.”

Hanic v. State, 406 N.E.2d 335, 339 (Ind. Ct. App. 1980). “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 of the evidence claim.” Sudberry v. State, 982 N.E.2d 475,

481 (Ind. Ct. App. 2013) (quotation and citation omitted). We will not reweigh the

evidence or judge the credibility of witnesses. Id. A conviction will be affirmed “[i]f

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

. . . .” Id.

                                    II. Defense of Property

        Birge argues that the State presented insufficient evidence to rebut his claim of

defense of property. A valid claim of defense of property is a legal justification for an

otherwise criminal act. Cf. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002) (discussing

self-defense and defense of another). The defense of property statute, in relevant part,

provides:

        (d) A person:
               (1) is justified in using reasonable force, including deadly force,
               against any other person; and

                                              3
              (2) does not have a duty to retreat;
       if the person reasonably believes that the force is necessary to prevent or
       terminate the other person’s unlawful entry of or attack on the person’s
       dwelling, curtilage, or occupied motor vehicle.

       (e) With respect to property other than a dwelling, curtilage, or an occupied
       motor vehicle, a person is justified in using reasonable force against any
       other person if the person reasonably believes that the force is necessary to
       immediately prevent or terminate the other person’s trespass on or criminal
       interference with property lawfully in the person’s possession, lawfully in
       possession of a member of the person’s immediate family, or belonging to a
       person whose property the person has authority to protect. . . .

Ind. Code § 35-41-3-2(d)-(e). Any force employed must be reasonable in light of “the

urgency of the situation.” Cf. Mateo v. State, 981 N.E.2d 59, 72 (Ind. Ct. App. 2012),

trans. denied. Once “a claim of [defense of property] is raised and finds support in the

evidence, the State has the burden of negating at least one of the necessary elements.”

Kimbrough v. State, 911 N.E.2d 621, 635 (Ind. Ct. App. 2009). Such a claim can be

rebutted through the State’s case-in-chief. Id.

       One method for negating a claim of defense of property is to establish the

defendant used an unreasonable amount of force. Mateo, 981 N.E.2d at 72 (“[I]f an

individual uses more force than is reasonably necessary under the circumstances, his self-

defense claim will fail.”) (quotation omitted); see also Ind. Code § 35-41-3-2(d)-(e).

Here, Russell entered Birge’s property in order to remove a license plate from a vehicle

located thereon. Birge confronted Russell and told him not to touch the vehicle. Russell

immediately complied and stepped away from the vehicle. After an exchange of words,

Birge left the area where the argument took place, returned with a broom handle, and

began striking Russell with the broom handle. Thereafter, Birge punched Russell in the


                                             4
face multiple times. These attacks rendered Russell unconscious and left him with

bruised arms, a fat lip, and a black eye.                     Notably, throughout the course of this

confrontation, Russell neither attempted to strike Birge nor was in possession of a

weapon. Thus, the evidence supports a conclusion that Birge’s force was unreasonable in

light of the urgency of the situation.

         Birge also argues that his actions were justified, and therefore do not preclude his

claim of defense of property, because he asked Russell to leave and Russell refused. See

Tr. at 15 (“I asked Mr. Russell to leave, that he had a lot of nerve to even be there on my

property, that he needed to leave and he told me, ‘No.’”); Appellant’s Br. at 6 (“It would

certainly be expected that [Birge] would tell [Russell] to get off his property. Although

Russell denied that statement, it is certainly reasonable that it would happen.”).

However, Russell testified that Birge never asked him to leave Birge’s property before

the battery occurred.          Birge’s attempted reliance on his own self-serving testimony

amounts to nothing more than a request for this court to reweigh conflicting evidence and

judge witness credibility, which we will not do.                          Sudberry, 982 N.E.2d at 481.

Consequently, Birge’s assertion that he asked Russell to leave lends no support to his

appeal.

         In sum, the evidence supports a conclusion that Birge’s use of force was

unreasonable in light of the urgency of the situation.1 Additionally, the trier of fact was

         1
            We agree with the dissent’s position that a person has a right to defend his property from attack. And in
other circumstances, we also might agree that hitting a person intruding on one’s property with a broom handle and
a fist could be reasonable force. But here, Russell had stopped what he was doing at Birge’s request. There are
many things Birge could have done to terminate Russell’s continued presence on his property, starting with asking
him to leave, which Russell testified he did not do. In these circumstances we cannot say that it was a reasonable

                                                         5
free to believe that Russell’s testimony possessed more veracity than Birge’s testimony.

Therefore, the State presented sufficient evidence to rebut Birge’s claim of defense of

property.

                                                  Conclusion

        Sufficient evidence of probative value was presented to rebut Birge’s claim of

defense of property. Therefore, we affirm Birge’s conviction of battery.

        Affirmed.

KIRSCH, J., concurs.

BAKER, J., dissents with separate opinion.




display of force for Birge to repeatedly strike Russell to the point that Russell was rendered unconscious when his
property was no longer under any obvious attack.


                                                        6
                              IN THE
                   COURT OF APPEALS OF INDIANA

THOMAS BIRGE,                                   )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )      No. 49A02-1404-CR-231
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )




BAKER, Judge, dissenting.

      I respectfully dissent. In this case, Russell entered Birge’s property and began to

remove the license plate from a vehicle that Russell testified he had assumed belonged to

Birge. Tr. p. 10. Pursuant to Indiana Code section 35-41-3-2(e), Birge was entitled to

use reasonable force to defend his real and personal property.

      The majority concludes that the State negated Birge’s claim of self-defense by

establishing that Birge used unreasonable force. I cannot agree. Birge asked Russell to

stop removing the license plate, and Russell complied. Birge and Russell then engaged in


                                            7
a heated argument, however, and Russell did not leave Birge’s property. Birge obtained

a broom handle and struck Russell with the broom handle. Russell still did not leave

Birge’s property. Birge and Russell then engaged in a physical altercation, during which

Birge struck Russell with his fist. Birge was exercising his statutory right to defend his

property, which Russell repeatedly refused and/or failed to leave. I do not believe that

the use of a broom handle and a fist constitutes unreasonable force as a matter of law.

       Russell was in a place he did not have a right to be, to take an action he did not

have a right to take. Russell neglected to leave that property even after engaging in a

heated argument with and being struck with a broom handle by the property owner. I

believe that Birge’s actions were protected and countenanced by Indiana’s property

defense statute. Therefore, I would reverse Birge’s conviction for class A misdemeanor

battery.




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