MEMORANDUM DECISION
                                                                         Mar 31 2015, 9:27 am
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
                                                          Karl M. Scharnberg
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Sylvester Dunn,                                           March 31, 2015

Appellant-Petitioner,                                     Court of Appeals Case No.
                                                          49A05-1407-CR-327
        v.                                                Appeal from the Marion Superior
                                                          Court.
                                                          The Honorable Helen Marchal,
State of Indiana,                                         Judge.
Appellee-Respondent                                       The Honorable Stanley E. Kroh,
                                                          Magistrate.
                                                          Cause No. 49G16-1404-CM-17558




Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision [Case number] | March 31, 2015                Page 1 of 5
[1]   Sylvester Dunn appeals his conviction for Battery, a Class B misdemeanor. 1

      Dunn argues that the State provided insufficient evidence to disprove his self-

      defense argument. Finding that a reasonable fact-finder could find Dunn guilty

      of battery based on the evidence presented, we affirm.


                                                     Facts
[2]   On March 17, 2014, at or around 4.30 a.m., Dunn drove to his home after

      getting off work. On arriving home, he found Lisa Day parked outside his

      house, waiting inside her vehicle. At the time, Day and Dunn were

      romantically involved. Dunn had agreed to rendezvous with Day earlier, but

      he had failed to show. Knowing she would be angry with him, Dunn did not

      stop at his house. Instead, he drove to a gas station a few blocks away. Day

      followed him in her vehicle.


[3]   On arriving at the station, Dunn and Day pulled up to different pumps. Dunn

      opened his driver side door, and Day stood in front of the door, refusing to

      move. An argument ensued, and Day shoved an open hand into Dunn’s face.

      In response, Dunn pushed Day to the pavement. Dunn then entered his vehicle

      and closed the door. At that moment, Day kicked the rear of Dunn’s vehicle.

      In response to the kick, Dunn exited the vehicle and Day retreated to her own

      vehicle. Dunn chased after Day and grabbed by her shirt, holding her against

      the side of her vehicle. He told Day: “[g]et [your] ass home, leave me the fuck




      1
          Indiana Code § 35-42-2-1(b).


      Court of Appeals of Indiana | Memorandum Decision [Case number] | March 31, 2015   Page 2 of 5
      alone.” Tr. p. 21. Dunn then released his grip on Day’s shirt, returned to his

      vehicle, and drove away. Day called the police.


[4]   On April 10, 2014, Dunn was charged with Battery, a Class A misdemeanor.2

      On June 24, 2014, after a bench trial, Dunn was convicted of the lessor

      included offense of battery, a class B misdemeanor. The trial court found that

      Dunn was acting in self-defense when he pushed Day to the pavement, but it

      concluded that Dunn did not act in self-defense when he chased Day down and

      held her against her vehicle. Dunn was sentenced to eight days in jail with time

      served. Dunn now appeals his conviction.



                                      Discussion and Decision
[5]   When reviewing a challenge to the sufficiency of the evidence supporting a

      conviction, this Court neither reweighs the evidence nor judges the credibility of

      the witnesses. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App.

      2008). Instead, “we must consider only the probative evidence and reasonable

      inferences supporting the verdict.” McHenry v. State, 820 N.E. 2d 124, 126 (Ind.

      2005). “If there is sufficient evidence of probative value to support the

      conclusion of the trier-of-fact, then the verdict will not be disturbed.” Pinkston v.

      State, 821 N.E.2d 830, 841-42 (Ind. Ct. App. 2004).




      2
          Ind. Code § 35-42-2-1(c).



      Court of Appeals of Indiana | Memorandum Decision [Case number] | March 31, 2015   Page 3 of 5
[6]   During trial, Dunn raised a claim of self-defense. Indiana Code section 35-41-

      3-2(d) provides:

               A person:
               (1) is justified in using reasonable force, including deadly force, against
               any other person; and
               (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.
      Thus, a defendant claiming self-defense must show that he was using force that

      he reasonably believed to be necessary to prevent or terminate an attack on his

      dwelling, curtilage, or occupied motor vehicle.3 Id.; See also Dixson v. State, 22

      N.E.3d 836, 839 (Ind. Ct. App. 2014), trans. pending (when a defendant is

      claiming self-defense in a case that does not involve deadly force, the defendant

      must only show that which is required by statute in order to prove self-defense).

      Once self-defense is raised as a claim, the State has the burden of negating at

      least one of the necessary elements of self-defense. Wilson v. State, 770 N.E.2d

      799, 800 (Ind. 2002). Dunn claims that the State failed to negate the reasonable

      belief factor for his claim of self-defense.


[7]   In Wilson, our Supreme Court held that an attack was unlikely made in self-

      defense when the attack occurred after the aggressor was “attempting to leave




      3
        This standard differs from the standard applied to self-defense when deadly force is used. When deadly
      force is used, the defendant must also show that he: “(1) was in a place where he had a right to be; (2) did not
      provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or great
      bodily harm.” Wilson, 770 N.E.2d at 800.

      Court of Appeals of Indiana | Memorandum Decision [Case number] | March 31, 2015                     Page 4 of 5
      the area.” Id. at 801. Instead, such an attack gave rise to an inference that the

      defendant “was retaliating for the initial assault.” Id. Here, the trial court

      found that Dunn did not act in self-defense because Day “was retreating”

      when he grabbed her and held her against her vehicle. Tr. p. 29. Specifically,

      because Day was retreating, the trial court found that Dunn could not

      reasonably have believed that the force he used was necessary to prevent or

      terminate Day’s harm to the motor vehicle. Id. Additionally, Day had already

      ceased her attack on the vehicle before being chased down by Dunn. The

      inferences and conclusions drawn by the trial court negated the reasonable

      belief element necessary for a claim of self-defense.


[8]   We cannot conclude that the trial court erred in drawing its conclusion. Thus,

      we find that the evidence was sufficient to support Dunn’s conviction.


[9]   Accordingly, the judgment of the trial court is affirmed.


      Vaidik, C.J., and Riley, J., concur.




      Court of Appeals of Indiana | Memorandum Decision [Case number] | March 31, 2015   Page 5 of 5
