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 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

                                                    RICHARD C. WEBSTER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana
                                                                                  FILED
                                                                              Apr 03 2012, 8:57 am

                               IN THE
                                                                                      CLERK
                     COURT OF APPEALS OF INDIANA                                    of the supreme court,
                                                                                    court of appeals and
                                                                                           tax court




BECKY SCHAFFER,                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1109-CR-826
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Richard E. Sallee, Judge
                            Cause No. 49G16-1105-CM-35989



                                          April 3, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Becky Schaffer appeals her convictions for Class A

misdemeanor Domestic Battery1 and Class A misdemeanor Battery.2 Specifically, Schaffer

contends that the evidence is insufficient to support her convictions and to negate her claim

that she acted in defense of her property. We affirm.

                           FACTS AND PROCEDURAL HISTORY

       Prior to May of 2011, Schaffer and Daniel Schaffer, Jr. (“Husband”) were married and

resided together in an Indianapolis-area home (the “marital residence”). At some point,

Schaffer and Husband began experiencing marital difficulties, and on May 18, 2011,

Husband left the marital home.

       Three days later, Husband, accompanied by his father, Daniel Schaffer, Sr. (“Daniel,

Sr.”), returned to the marital residence to collect his personal property, including a gaming

computer, a drum kit, and clothing. Upon entering the marital residence, Husband proceeded

to pick up the gaming computer. Schaffer knocked the computer out of his hands. When

Husband attempted to again pick up the gaming computer, Schaffer jumped on Husband‟s

back, struck him, and began clawing and scratching him.

       A few minutes after Husband entered the home, Daniel, Sr. entered the home. Upon

entering the home, Daniel, Sr. saw Shaffer attacking Husband. Daniel, Sr. told Shaffer to

“back off.” Tr. p. 25. When Schaffer did not comply with his request, Daniel, Sr. put his

arms around her and pulled her from Husband. Schaffer continued to struggle and scratched


       1
           Ind. Code § 35-42-4-9(A)(1) (2009).
       2
           Ind. Code § 35-42-4-9(A)(1) (2009).

                                                 2
Daniel, Sr.‟s forearm, causing it to bleed. Eventually, Shaffer calmed down, at which point

Daniel, Sr. released her. At some point, Indianapolis Metropolitan police officer Matthew

Morgan arrived. Officer Morgan observed the injury to Daniel, Sr.‟s arm and scratches,

bruising, and red marks on Husband‟s back.

       On May 21, 2011, the State charged Schaffer with one count of Class A misdemeanor

domestic battery and two courts of Class A misdemeanor battery. On August 19, 2011, the

trial court conducted a bench trial. During trial, Schaffer argued that she should be found not

guilty because she acted in defense of her property and testified to that effect. The trial court

disagreed and found her testimony relating to the events in question was incredible. After

considering what it found to be credible evidence, the trial court found Schaffer guilty as

charged. The trial court merged one of the Class A misdemeanor battery convictions into the

Class A misdemeanor domestic battery conviction and sentenced Schaffer to two concurrent

terms of 180 days with 168 days suspended to probation. This appeal follows.

                              DISCUSSION AND DECISION

 I. Whether the Evidence is Sufficient to Sustain Schaffer’s Class A Misdemeanor
        Domestic Battery and Class A Misdemeanor Battery Convictions

       Schaffer contends that the evidence is insufficient to support her convictions for Class

A misdemeanor domestic battery and Class A misdemeanor 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.… The evidence is
       sufficient if an inference may reasonably be drawn from it to support the
       verdict.
                                              3
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations

omitted). Inconsistencies in witness testimony go to the weight and credibility of the

testimony, “the resolution of which is within the province of the trier of fact.” Jordan v.

State, 656 N.E.2d 816, 818 (Ind. 1995). 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. Class A Misdemeanor Domestic Battery

       Indiana Code section 35-42-2-1.3 provides in relevant part that:

       (a) A person who knowingly or intentionally touches an individual who:
              (1) is or was a spouse of the other person;
              (2) is or was living as if a spouse of the other person as provided
              in subsection (c); or
              (3) has a child in common with the other person;
       in a rude, insolent, or angry manner that results in bodily injury to the person
       described in subdivision (1), (2), or (3) commits domestic battery, a Class A
       misdemeanor.

Indiana Code section 35-41-1-4 defines bodily injury as “any impairment of physical

condition, including physical pain.” Scratches, bruises, and red marks are sufficient to

establish bodily injury. See Hanic v. State, 406 N.E.2d 335, 337-38 (Ind. Ct. App. 1980)

(providing that evidence of red marks, bruises, and minor scratches was sufficient to support

a finding of bodily injury). Thus, in order to prove that Schaffer committed Class A

misdemeanor domestic battery, the State was required to prove that Schaffer knowingly or

intentionally touched Husband in a rude, insolent, or angry manner, and that such touches

resulted in bodily injury to him.

                                              4
       With respect to Schaffer‟s Class A misdemeanor domestic battery conviction, the

record demonstrates that Schaffer and Husband were married and that the couple resided

together until May 18, 2011, when Husband left the marital residence due to marital discord.

On May 21, 2011, Husband returned to the marital residence to collect some of his personal

belongings. As Husband attempted to remove his gaming computer, Schaffer knocked the

computer out of his hands. When Husband attempted to pick up the gaming computer,

Schaffer jumped on Husband‟s back, struck him, and began clawing and scratching him. As

a result of Schaffer‟s actions, Husband suffered scratches, bruising, and red marks on his

back. We conclude that the trial court could reasonably infer from this evidence that

Schaffer knowingly or intentionally touched Husband in a rude, insolent, or angry manner

resulting in bodily injury. See id. As such, the evidence is sufficient to sustain Schaffer‟s

conviction for Class A misdemeanor domestic battery.

                            B. Class A Misdemeanor Battery

       Indiana Code section 35-42-2-1 provides in relevant part that “[a] person who

knowingly or intentionally touches another person in a rude, insolent, or angry manner

commits battery, a Class B misdemeanor.” “However, the offense is … a Class A

misdemeanor if … it results in bodily injury to any other person.” Ind. Code section 35-42-2-

1. Again, Indiana Code section 35-41-1-4 defines bodily injury as “any impairment of

physical condition, including physical pain,” and scratches, bruises, and red marks are

sufficient to establish bodily injury. See Hanic, 406 N.E.2d at 337-38. Thus, in order to

prove that Schaffer committed Class A misdemeanor battery, the State was required to prove

                                             5
that Schaffer knowingly or intentionally touched Daniel, Sr. in a rude, insolent, or angry

manner, and that such touches resulted in bodily injury to him.

       With respect to Schaffer‟s Class A misdemeanor battery conviction, the record

demonstrates that Daniel, Sr. told Shaffer to “back off” when he entered the home and saw

Schaffer attacking Husband. Tr. p. 25. When Schaffer did not comply with his request,

Daniel, Sr. put his arms around her and pulled her off of Husband. Schaffer continued to

struggle and scratched Daniel, Sr.‟s forearm, causing it to bleed. Eventually, Shaffer calmed

down, at which point Daniel, Sr. released her. We conclude that the trial court could

reasonably infer from this evidence that Schaffer knowingly or intentionally touched Daniel,

Sr. in a rude, insolent, or angry manner resulting in bodily injury. See Hanic, 406 N.E.2d at

337-38. As such, the evidence is sufficient to sustain Schaffer‟s conviction for Class A

misdemeanor battery.

                   II. Whether the Evidence is Sufficient to Negate
                        Schaffer’s Defense of Property Claim

       Concluding that the evidence was sufficient to sustain Schaffer‟s convictions for Class

A misdemeanor domestic battery and Class A misdemeanor battery, we must next consider

whether the evidence was sufficient to negate Schaffer‟s claim that she acted in defense of

her property. Indiana Code section 35-41-3-2(c) provides as follows:

       With respect to property … a person is justified in using reasonable force
       against another 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.

                                              6
A claim of defense of property is analogous to the defense of self-defense. Hanic, 406

N.E.2d at 339.

       “„A person is justified in using reasonable force against another person to protect

himself or a third person from what he reasonably believes to be the imminent use of

unlawful force.” Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003) (quoting Ind. Code § 35-

41-3-2 (2001)). A claim of self-defense requires a defendant to have acted: 1) without fault;

2) been in a place where he had a right to be; and 3) been in reasonable fear or apprehension

of bodily harm. Id. The amount of force used to protect oneself must be proportionate to the

urgency of the situation. Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct. App. 1999).

              The issue on appellate review is typically whether the State presented
       sufficient evidence to support a finding that at least one of the elements of the
       defendant‟s self-defense claim was negated. [Wallace v. State, 725 N.E.2d
       837, 840 (Ind. 2000).] The standard of review for a challenge to the
       sufficiency of the evidence to rebut a claim of self-defense is the same as the
       standard for any sufficiency of the evidence claim. Id. We neither reweigh the
       evidence nor judge the credibility of witnesses. Id. 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.

Randolph v. State, 755 N.E.2d 572, 575-76 (Ind. 2001).

       At trial, Schaffer testified about the day in question stating that Husband overpowered

her as she attempted to keep him from entering the home and began ripping various

electronic devices from the wall without unplugging them. With respect to the gaming

computer, Schaffer testified that she knocked the gaming computer out of Husband‟s hands

in an attempt to stop him from taking it because she believed that it was their “personal

property together.” Tr. p. 59. Schaffer indicated that she acted to protect her property

                                              7
because she was in fear of Husband. Thus, Schaffer claims that she established that she

acted in defense of her property because she was in a place where she had a right to be, acted

without fault, and had a reasonable fear of bodily harm. See Henson, 786 N.E.2d at 277. We

disagree.

       At the conclusion of the evidence, with respect to Schaffer‟s testimony, the trial court

stated that “[a]s a matter of credibility,” it did not believe Schaffer. Tr. p. 74. The trial court

further stated that in a bench trial, the trial court has the duty to decide who to believe, and,

here, the trial court acting as the trier of fact, “ha[d] that right and I just don‟t believe her. I

mean, I don‟t know why he had, her husband had injuries all over his back, and you know, all

she‟s trying to do is knock the computer out of his hand. It doesn‟t make sense.” Tr. pp. 74-

75. Thus, because we will not reweigh the evidence or credibility of the witnesses on appeal,

we must consider whether Schaffer established that she properly acted in defense of her

property without relying on Schaffer‟s version of events that allegedly took place on the day

in question. See Randolph, 755 N.E.2d at 576.

       The evidence most favorable to the judgment does not establish that Schaffer acted in

defense of her property. The evidence demonstrates that Schaffer‟s attack on Husband and

Daniel, Sr. was unprovoked. Schaffer knocked a computer out of Husband‟s hands before

jumping on his back and striking and scratching him. Daniel, Sr. was struck and injured

when he attempted to stop Schaffer from attacking Husband. Husband merely returned to the

marital home to collect personal belongings, including the gaming computer. Husband

testified that he believed the gaming computer was his personal property as he had paid for

                                                 8
the necessary parts and had put it together. In light of these facts, we cannot say that

Schaffer acted without fault in carrying out an unprovoked attack on Husband and Daniel, Sr.

when Husband returned to the marital home for the sole purpose of collecting his personal

property. See id. at 575-76.

       The judgment of the trial court is affirmed.

VAIDIK, J., and CRONE, J., concur.




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