MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing                            FILED
the defense of res judicata, collateral
estoppel, or the law of the case.                                  Sep 05 2017, 6:22 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jane H. Conley                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Angela Kinney,                                           September 5, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1704-CR-726
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina R.
Appellee-Plaintiff.                                      Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1701-F6-2268



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017     Page 1 of 15
                                          Case Summary
[1]   Appellant-Defendant Angela Kinney and Michael Kinney were married and

      are the parents of two children, C.K. and K.K. (collectively, “the Children”).

      At some point, Kinney and Michael separated, after which Michael was

      awarded custody of the Children. In January of 2017, Michael and the

      Children resided with Michael’s mother, Carol Henderson.


[2]   On January 16, 2017, Kinney went to Henderson’s residence and, while there,

      engaged in a number of unlawful acts including punching and choking

      Henderson and choking and biting Michael. Appellee-Plaintiff the State of

      Indiana (“the State”) subsequently charged Kinney with Level 6 felony

      domestic battery, two counts of Level 6 felony strangulation, Level 6 felony

      battery against a public safety official, and two counts of Class A misdemeanor

      battery resulting in bodily injury. Following a bench trial, Kinney was found

      guilty as charged. The trial court subsequently merged one of the Class A

      misdemeanor battery charges with the Level 6 felony domestic battery charge

      and sentenced Kinney to an aggregate term of 365 days with credit for time

      served and the remainder suspended to probation.


[3]   On appeal, Kinney contends that the trial court abused its discretion by failing

      to conduct a competency hearing prior to the start of trial. Kinney also

      contends that the evidence is insufficient to sustain her conviction for Level 6

      felony domestic battery. Concluding otherwise, we affirm.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 2 of 15
                              Facts and Procedural History
[4]   Kinney and Michael were married and are the parents of the Children. At

      some point, Kinney and Michael separated, after which Michael was awarded

      custody of the Children. In January of 2017, Michael and the Children were

      living with Henderson.


[5]   On January 16, 2017, Kinney went to Henderson’s residence. When Kinney

      arrived at the residence, the Children were both in K.K.’s bedroom. After

      knocking on the front door, Kinney “barged in” the residence. Tr. Vol. II, p.

      27. Kinney then attempted to go “back to [K.K.’s] bedroom.” Tr. Vol. II, p.

      27. The situation turned violent after Michael requested that Kinney leave the

      residence.


[6]   While standing in the living room, Kinney indicated that she “wasn’t leaving

      without her children and she was going to take them home.” Tr. Vol. II, p. 10.

      Henderson positioned herself between Kinney and the Children and stated

      “You’re not taking your children home. You lost that parental rights seven (7)

      years ago” when Michael was awarded custody. Tr. Vol. II, p. 10. Kinney

      then “punched [Henderson] in the eye and ran” back toward K.K.’s bedroom. 1

      Tr. Vol. II, p. 10. Kinney ran back into K.K.’s bedroom and “slammed the

      door.” Tr. Vol. II, p. 11.




      1
        As a result of being punched in the eye, Henderson suffered bruising and a cut that ran “from the center of
      the eye all the way to the side of [her] brow.” Tr. Vol. II, p. 11.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017           Page 3 of 15
[7]   Michael and Henderson followed Kinney to the bedroom. Kinney resisted their

      attempts to enter the room. Eventually, Henderson and Michael were able to

      open the door. Michael pushed Kinney away from the door and stated “You

      don’t hit my mom.” Tr. Vol. II, p. 11. Henderson then indicated that she was

      going to call the police, after which Kinney attacked her. Kinney “grabbed

      [Henderson] by the throat with one (1) hand.” Tr. Vol. II, p. 12. Henderson

      gagged and had difficulty breathing because Kinney was squeezing her neck.

      Henderson later indicated that “it felt like [Kinney] was trying to rip my

      esophagus off of me.” Tr. Vol. II, p. 12.


[8]   Kinney next “went after” Michael. Tr. Vol. II, p. 13. Kinney “put her hands

      around [Michael’s] neck and started choking [him].” Tr. Vol. II, p. 30.

      Michael “couldn’t breathe” and “felt like [Kinney] was tearing [his] skin.” Tr.

      Vol. II, p. 30. Kinney “had a hold of [Michael’s] neck while [they] were

      standing for at least a minute.” Tr. Vol. II, p. 31. While squeezing Michael’s

      neck, Kinney said, “Die, b[****], die.” Tr. Vol. II, p. 31. Eventually, Michael

      was able to take Kinney to the ground. Once on the ground, Michael

      attempted to restrain Kinney until police arrived. While on the ground, Kinney

      “swung a few times” at Michael and bit his left shoulder. Tr. Vol. II, p. 31.

      Kinney continued to struggle until responding officers arrived.


[9]   When Indianapolis Metropolitan Police Officers Jason Hitchcock and Shane

      Nicholsen arrived at Henderson’s home, they were met by Henderson who was

      “seemed very upset.” Tr. Vol. II, pp. 47-48. Henderson “was crying and [ ]



      Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 4 of 15
       was screaming that she needed help and that [the officers] needed to hurry.”

       Tr. Vol. II, p. 48.


[10]   Upon entering the home, Officer Hitchcock observed


               Ms. Kinney on the ground, uhm, screaming and there was, uhm,
               blood all over her hands and then [Michael] was holding on to
               her, uhm, trying to, uhm, I guess like contain her and, uhm, he
               was saying that – he was yelling at us saying, “I need your help.
               You need to come help me.”


       Tr. Vol. II, p. 48. Kinney was “squirming, fighting, [and] screaming.” Tr. Vol.

       II, p. 48. She was “very agitated, uhm, very belligerent. Uh, she – she was

       speaking in tongues, saying that, uh, she was God and that, uhm, that we were

       – meaning us as officers and the others in the room – we were all going to hell

       and, uhm, that there was nothing that we could do, uhm, to her.” Tr. Vol. II,

       p. 49. Kinney was “acting belligerent, yelling a lot of things that didn’t really

       make sense.” Tr. Vol. II, p. 49.

[11]           [A]s Officer Nicholsen was getting information from those that
               were in the residence, uhm, Ms. Kinney was sitting down at the
               time. She immediately stood up and started to state, uhm, yell at
               [Henderson] and [Michael] that she was going to kill them and
               was saying that she is God and that everybody was going to Hell.


       Tr. Vol. II, p. 50. Officer Hitchcock then told her “Ma’am, you need to relax

       and have a seat.” Tr. Vol. II, p. 50. Kinney ignored Officer Hitchcock’s

       commands and “continued to yell and act belligerent, uhm, screaming

       profanities.” Tr. Vol. II, p. 50. Officer Hitchcock “then told her, ‘Ms. Kinney,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 5 of 15
       you need to sit down now.’” Tr. Vol. II, p. 50. At that point, Kinney

       “immediately turned to [Officer Hitchcock], yelled profanities in [his] face and

       then with her right leg kicked [Officer Hitchcock] in [his] right shin.” Tr. Vol.

       II, p. 50. The kick to the shin caused Officer Hitchcock to suffer pain. After

       Kinney kicked him, Officer Hitchcock “performed an IMPD-taught leg sweep”

       and “took Ms. Kinney to the ground.” Tr. Vol. II, p. 51. Kinney was then

       placed under arrest.


[12]   The next day, the State charged Kinney with Level 6 felony domestic battery,

       two counts of Level 6 felony strangulation, Level 6 felony battery against a

       public safety official, and two counts of Class A misdemeanor battery resulting

       in bodily injury. The matter proceeded to a bench trial on February 28, 2017.

       Before the trial commenced, the State indicated that it had “concerns as to

       competency, uh, given some of the statements that were made at the time of the

       arrest.” Tr. Vol. II, p. 4. The State further indicated that its concerns had been

       addressed with defense counsel. Defense counsel, however indicated that he

       did not “have any concerns about Ms. Kinney’s competency.” Tr. Vol. II, p. 4.

       Defense counsel further indicated that Kinney understood the nature of the

       proceedings and had been able to assist in developing a defense. The trial court

       stated that “given that [defense counsel] doesn’t seem to share [the State’s]

       concerns and he’s the one in, uhm, contact with, uhm, Ms. Kinney, I’m, uhm,

       going to proceed with trial.” Tr. Vol. II, pp. 5-6.


[13]   Following the conclusion of trial, Kinney was found guilty as charged. The

       trial court subsequently merged one of the Class A misdemeanor battery

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 6 of 15
       charges with the Level 6 felony domestic battery charge and sentenced Kinney

       to an aggregate term of 365 days with credit for time served and the remainder

       suspended to probation. This appeal follows.



                                  Discussion and Decision
                                     I. Competency Hearing
[14]   Kinney first contends that the trial court abused its discretion by failing to

       conduct a competency hearing prior to the start of trial. “The trial court must

       hold a competency hearing when the court has reasonable grounds to believe

       that defendant lacks the ability to understand the proceedings and assist in the

       preparation of [her] defense.” Timmons v. State, 500 N.E.2d 1212, 1217 (Ind.

       1986) (citing Ind. Code § 35-36-3-1).


               However, the right to a hearing is not absolute. Goodman v. State
               (1983), Ind., 453 N.E.2d 984, 985. A hearing is required by
               statute and due process only when there is evidence before the
               court that creates a reasonable doubt as to the defendant’s
               competency. Pate v. Robinson (1966), 383 U.S. 375, 385, 86 S. Ct.
               836, 842, 15 L. Ed. 2d 815; Perry v. State (1984), Ind., 471 N.E.2d
               270, 273. Evidence sufficient to require a hearing must be
               determined on the facts of each case, and the decision lies within
               the province of the trial judge. Absent an abuse of discretion, the
               trial court’s decision will not be disturbed. Perry, 471 N.E.2d at
               273.


       Fine v. State, 490 N.E.2d 305, 308 (Ind. 1986). “The tests for competence to

       stand trial are whether the defendant has sufficient present ability to consult

       with defense counsel with a reasonable degree of rational understanding and
       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 7 of 15
       whether defendant has a rational as well as a factual understanding of the

       proceedings against him.” Brown v. State, 485 N.E.2d 108, 110 (Ind. 1985)

       (citing Dusky v. U.S., 362 U.S. 402 (1960); Johnson v. State, 262 Ind. 516, 520,

       319 N.E.2d 126, 128 (1974)). In determining whether a competency hearing is

       necessary, the trial court may “observe a defendant’s demeanor, including any

       uncooperative behavior[.]” Timmons, 500 N.E.2d at 1217 (citing Brown, 485

       N.E.2d at 110.


[15]   On the morning of Kinney’s trial, the State indicated that it had concerns

       regarding Kinney’s competency in light of her behavior in the days leading up

       to and the time of the January 16, 2017 incident. In discussing the State’s

       concern, the parties and the trial court engaged in the following exchange:

               [The State]:         Uh, yes, your Honor. I – the State would like
               to put on the record that, uhm, that we have concerns as to
               competency, uh, given some of the statements that were made at
               the time of the arrest. Uhm, it has been addressed this with
               Defense counsel.
               [Trial Court]:       Okay. [Defense Counsel]?
                                                ****
               [Defense Counsel]: I – I don’t have any concerns about Ms.
               Kinney’s competency. I know my colleague, Ms. Frick, went
               and spoke with Ms. Kinney at the jail and there were some things
               said but she did understand the – my job, the prosecutor’s job,
               your job, everything that is – she understands the nature of
               what’s going on, I guess, and she’s been able to assist me in – in
               developing a defense.
               [Trial Court]:       Is the only basis for your concern the events
               of the day in question?
               [The State]:         Uhm, our concern started two (2) weeks
               before. Uh, she’s alleged to have, uh, told the family numerous

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 8 of 15
               times that she was God and Collin Kinney was Jesus. Uhm,
               when the cops arrived, she’s alleged to have said the cops could
               not do anything to her because she, uhm, will be going on an
               island. Uh, this gives the State–
                                               ****
               [Trial Court]:      Okay. Uhm, well given that [Defense
               Counsel] doesn’t seem to share those concerns and he’s the one
               in, uhm, contact with, uhm, Ms. Kinney, I’m, uhm, going to
               proceed with trial.


       Tr. Vol. II, pp. 4-6.


[16]   “Mental illness itself is not a unitary concept. It varies in degree. It can vary

       over time. It interferes with an individual’s functioning at different times in

       different ways.” Ind. v. Edwards, 554 U.S. 164, 175 (2008). As such, one who

       suffers from mental illness may be competent to stand trial at times and

       incompetent to stand trial at others. Again, the standard for deciding whether

       one is competent to stand trial is whether the defendant, at the time of trial,

       possesses the ability to consult rationally with counsel and factually

       comprehend the proceedings against him or her. Brewer v. State, 646 N.E.2d

       1382, 1384 (Ind. 1995) (citing Mato v. State, 429 N.E.2d 945, 946 (Ind. 1982)).


[17]   The trial court noted the State’s concern about Kinney’s prior mental state but

       found that, as of the morning of trial, Kinney was competent to stand trial.

       However, Kinney’s counsel, who was in direct contact and discussions with

       Kinney, explicitly stated that he did not share the State’s concerns. Specifically,

       defense counsel noted that Kinney understood the proceedings against her and

       was able to competently assist in her defense. Kinney, herself, seems to

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 9 of 15
       acknowledge that she was competent at the time of trial, noting that she was

       capable of and in fact did testify “coherently” during trial. Appellant’s Br. p. 8.

       The trial court was in the best position to judge Kinney’s then-mental state as it

       could observe Kinney’s demeanor, statements, and behavior. Given the record

       before us, we agree with the trial court’s assessment of Kinney’s mental state on

       the morning of trial. We therefore conclude that the trial court did not abuse its

       discretion by failing to conduct a competency hearing prior to the start of trial.


                               II. Sufficiency of the Evidence
[18]   Kinney also contends that the evidence is insufficient to sustain her conviction

       for Level 6 felony domestic battery.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


       Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence
       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 10 of 15
       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original). Upon review, appellate courts do not reweigh the evidence or assess

       the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

       2002).


       A. Whether the Evidence is Sufficient to Prove Kinney Acted
                             Knowingly
[19]   “[A] person who knowingly or intentionally: (1) touches a family or household

       member in a rude, insolent, or angry manner; or (2) in a rude, insolent, or angry

       manner places any bodily fluid or waste on a family or household member;

       commits domestic battery, a Class A misdemeanor.” Ind. Code § 35-42-2-

       1.3(a). However, the offense is a Level 6 felony if “[t]he person who committed

       the offense is at least eighteen (18) years of age and committed the offense

       against a family or household member in the physical presence of a child less

       than sixteen (16) years of age, knowing that the child was present and might be

       able to see or hear the offense.” Ind. Code § 35-42-2-1.3(b)(2). “A person

       engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware

       of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A person

       engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his

       conscious objective to do so.” Ind. Code § 35-41-2-2(a).


[20]   With respect to this charge, the charging information alleges that


                On or about January 17, 2017 [Kinney], being at least eighteen
                (18) years of age, did knowingly touch Michael Kinney, a family
                or household member, in a rude, insolent, or angry manner by

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 11 of 15
               biting him, and [Kinney] committed said offense in the presence
               of [C.K.], a child less than 16 years of age; and/or [K.K.], a child
               less than 16 years of age; knowing that the child was present and
               might be able to see or hear the offense.


       Appellant’s App. Vol. II – Confidential, pp. 20-21. Thus, in order to prove that

       Kinney committed the charged Level 6 felony domestic battery, the State was

       required to prove that she knowingly touched Michael in a rude, insolent, or

       angry manner in the presence of the Children, both of whom were under the

       age of sixteen.


[21]   The evidence most favorable to the trial court’s judgment court indicates that

       on January 16, 2017, Kinney “barged” into Henderson’s residence, where

       Michael and the Children were staying. Tr. Vol. II, p. 27. Kinney subsequently

       punched and choked Henderson. She also choked Michael. In order to stop

       Kinney from choking anyone in the residence, Michael pushed Kinney to the

       ground and restrained her until police arrived. While on the ground, Kinney

       “swung a few times” at Michael and bit his left shoulder. Tr. Vol. II, p. 31.

       Kinney continued to struggle until after she was subdued by responding

       officers. The Children were present in the home when Kinney attacked

       Michael.


[22]   One may reasonably infer from the above-discussed evidence that Kinney acted

       knowingly when she attacked Michael. As such, we conclude that the evidence

       is sufficient to sustain Kinney’s conviction for Level 6 felony domestic battery.

       Kinney’s claim to the contrary amounts to nothing more than an invitation for


       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 12 of 15
       this court to reweigh the evidence, which we will not do. See Stewart, 768

       N.E.2d at 435.


         B. Whether the Evidence was Sufficient to Rebut Kinney’s
                         Claim of Self-Defense
[23]   Furthermore, to the extent that Kinney argues that the evidence is insufficient

       to rebut her claim of self-defense, we conclude otherwise. “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.”

       Kimbrough v. State, 911 N.E.2d 621, 635 (Ind. Ct. App. 2009) (citing Wilson v.

       State, 770 N.E.2d 799, 801 (Ind. 2002)). “We neither reweigh the evidence nor

       judge the credibility of witnesses. Wallace v. State, 725 N.E.2d 837, 840 (Ind.

       2000). “If there is sufficient evidence of probative value to support the

       conclusion of the trier of fact, then the verdict will not be disturbed.” Id. “If a

       defendant is convicted despite his claim of self-defense, this Court will reverse

       only if no reasonable person could say that self-defense was negated by the

       State beyond a reasonable doubt.” Kimbrough, 911 N.E.2d at 635 (citing Wilson

       at 800-01).

[24]           A valid claim of self-defense is a legal justification for an
               otherwise criminal act. Henson v. State, 786 N.E.2d 274, 277
               (Ind. 2003). A person is justified in using reasonable force
               against another person to protect the person or a third person
               from what the person reasonably believes to be the imminent use
               of unlawful force. Ind. Code § 35-41-3-2. In order to prevail on
               such a claim, the defendant must show that [s]he: (1) was in a
               place where [s]he had a right to be; (2) did not provoke, instigate,
               or participate willingly in the violence; and (3) had a reasonable
       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 13 of 15
                fear of death or great bodily harm. Wilson, 770 N.E.2d at 800.
                An initial aggressor or a mutual combatant, whether or not the
                initial aggressor, must withdraw from the encounter and
                communicate the intent to do so to the other person, before [s]he
                may claim self-defense. 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
                can rebut the defendant’s claim of self-defense by relying on the
                evidence of its case-in-chief. Carroll v. State, 744 N.E.2d 432, 433
                (Ind. 2001).


       Id.


[25]   The evidence presented during trial demonstrates that at the time of Kinney’s

       attack on Michael, Kinney was not in a place where she had a right to be. Both

       Henderson and Michael testified that Kinney “barged in” to Henderson’s

       residence. Tr. Vol. II, pp. 9, 27. Neither Henderson nor Michael had invited

       Kinney into the residence. Moreover, Kinney refused to leave the residence

       after being instructed to do so. These facts negate Kinney’s self-defense claim.2

       See generally, Dixson v. State, 22 N.E.3d 836, 840 (Ind. Ct. App. 2014) (providing

       that the fact that the defendant did not have a right to be in the cafeteria in

       question when the incident occurred negated defendant’s self-defense claim).

       As was the case above, Kinney’s assertion that the State failed to rebut her




       2
         Kinney’s self-defense claim is also rebutted by the evidence demonstrating that Kinney was the initial
       aggressor as she punched and choked Henderson before Michael used any force to attempt to restrain
       Kinney.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017         Page 14 of 15
       claim of self-defense amounts to nothing more than an invitation for this court

       to reweigh the evidence, which we will not do. See Wallace, 725 N.E.2d at 840.



                                               Conclusion
[26]   In sum, we conclude that (1) the trial court did not abuse its discretion by

       failing to order a competency hearing prior to the start of trial, and (2) the

       evidence is sufficient to sustain Kinney’s conviction for Level 6 felony domestic

       battery.


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


       May, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1704-CR-726 | September 5, 2017   Page 15 of 15
