MEMORANDUM DECISION
                                                                    Mar 31 2015, 9:20 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                                   ATTORNEY FOR APPELLEE
Darren Bedwell                                           Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Cynthia L. Ploughe
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Monica McCall,                                           March 31, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1408-CR-366
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable Stanley Kroh,
State of Indiana,                                        Magistrate.
Appellee-Plaintiff.                                      Cause No. 49G16-1404-FD-21490




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015       Page 1 of 10
                                            Statement of the Case
[1]   Monica McCall appeals from her conviction after a bench trial of one count of
                                                 1
      Class D felony domestic battery. McCall contends that the trial court

      committed reversible error by prohibiting her from testifying about prior crimes,

      wrongs, or other acts allegedly committed by the victim in order to support her

      defenses. We affirm.


                                   Facts and Procedural History
[2]   McCall and the victim, B.D., have two children together: six-year-old J.M. and

      eleven-month-old T.M. McCall and B.D. had ended their relationship in

      March 2014, approximately two weeks prior to the incident that is the subject of

      this appeal. After the relationship ended, B.D. resided with his mother at her

      home on Rinehart Street.


[3]   On April 23, 2014, McCall drove J.M. and T.M. to the Rinehart Street address

      to leave the children in B.D.’s care so that she could go to the emergency room

      to seek treatment for an outbreak of hives. After arriving at the house, J.M.

      went into the house while T.M. remained in her car seat.


[4]   B.D., who had seen McCall pull up in her car in the driveway, came out of the

      house and informed McCall that he could not care for the children at that time

      because he had a job interview that day. Upon hearing this, McCall punched




      1
          Ind. Code § 35-42-2-1.3 (2012).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015   Page 2 of 10
      B.D. in the face with a closed fist, causing him pain. The two began to argue

      loudly and McCall began throwing the children’s belongings near the sidewalk.

      McCall also placed her daughter, T.M., who remained in her car seat, near the

      sidewalk. As. B.D. began returning the items, placing them into McCall’s car,

      McCall again struck B.D. on the face with a closed fist, causing what he

      described as a stinging pain.


[5]   The two continued to struggle with McCall removing items and B.D. returning

      items to the car. Stephanie Gyetko, a neighbor, heard the commotion and saw

      McCall pointing and yelling at B.D. She also observed McCall strike B.D.

      Gyetko came out of her house in an attempt to halt the confrontation, but

      before she could say anything to the two, she saw McCall strike B.D. again. At

      that point she yelled that she was calling the police. A few minutes later, after

      McCall had shouted at Gyetko and called her names, McCall drove away.


[6]   The State charged McCall with Class D felony domestic battery for striking

      B.D., causing him pain, and for engaging in that behavior in the presence of

      their child. During McCall’s testimony at trial she admitted striking B.D.

      repeatedly on the face, but claimed that she did so because B.D. was removing

      Xanax, for which she had a prescription, from her purse. The trial court found
                                                                       2
      McCall guilty of Class D felony domestic battery. McCall was sentenced to




      2
        The State additionally charged McCall with Class D felony battery, Class A misdemeanor domestic battery,
      and Class A misdemeanor battery. The convictions on these additional offenses were merged with the count
      alleging Class D felony domestic battery due to double jeopardy concerns.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015          Page 3 of 10
      545 days with 533 days suspended, placed on probation for 365 days, and

      ordered to attend twenty-six weeks of domestic violence counseling. McCall

      now appeals.


                                   Discussion and Decision
[7]   In order to prove domestic battery, the State was required to establish beyond a

      reasonable doubt that McCall knowingly or intentionally touched B.D., who

      has a child in common with McCall, in a rude, insolent, or angry manner that

      resulted in bodily injury to B.D. in the physical presence of T.M., who was less

      than sixteen years of age. Ind. Code § 35-42-2-1.3. McCall admitted at trial

      that she struck B.D., the father of her two children, in the face with a closed fist

      three times in the presence of their eleven-month-old daughter. B.D.’s and

      Gyetko’s trial testimony corroborated McCall’s admission. However, McCall

      asserts that she did so in defense of herself, because she feared B.D., and in

      defense of her property, the prescription Xanax pills. McCall argues that the

      trial court committed reversible error by prohibiting her from presenting

      evidence she claims was crucial to her defense theories of defense of self and

      defense of property.


[8]   “The trial court has broad discretion to rule on the admissibility of evidence.”

      Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). “We review its rulings ‘for

      abuse of that discretion and reverse only when admission is clearly against the

      logic and effect of the facts and circumstances and the error affects a party’s




      Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015   Page 4 of 10
       substantial rights.’” Id. (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind.

       2013)).


[9]    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) (quoting Wilson v.

       State, 770 N.E.2d 799, 801 (Ind. 2002). 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.


[10]   Indiana Code section 35-41-3-2 (2013) provides in pertinent part as follows:


               (c) 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. However, a person:
               (1) is justified in using deadly force; and
               (2) does not have a duty to retreat;
               if the person reasonably believes that that force is necessary to
               prevent serious bodily injury to the person or a third person or
               the commission of a forcible felony. No person in this state shall
               be placed in legal jeopardy of any kind whatsoever for protecting
               the person or a third person by reasonable means necessary.


               (d) A person:


       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015   Page 5 of 10
               (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.


               (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. However, a person:
               (1) is justified in using deadly force; and
               (2) does not have a duty to retreat;
               only if that force is justified under subsection (c).


[11]   During McCall’s testimony at trial on direct examination, the following

       exchange took place:


               Q:               So you bring [T.M.] over and [B.D.] comes out in
                                the driveway?
               A:               Yes.
               Q:               And what happens when he comes out?
               A:               We started arguing. He . . .
               Q:               What were you arguing about?

       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015   Page 6 of 10
               A:               The children and our situation.
               Q:               What is the situation?
               A:               He domesticated me about two weeks before that . .
               STATE:           Objection Your Honor.
               COURT:           All right.
               A:               He was arrested.
               COURT:           Yeah, sustained.
       Tr. pp. 42-43.


[12]   The trial court granted the State’s request that the testimony be stricken from

       the record. McCall then testified that she and B.D. were arguing about the

       division of child care responsibilities.


[13]   Later, in McCall’s testimony on direct examination, the following exchange

       took place:


               Q:               Did you have anything in your front passenger seat?
               A:               My purse.
               Q:               What . . .what happened next?
               A:               As I was getting the stuff out . . . I am putting it into
                                the diaper bag [B.D.] goes into the front passenger
                                seat and proceeds to grab my Xanax’s [sic] out of
                                my purse, which I have a prescription for.
               Q:               You saw him do that?
               A:               Yes I did.
               Q:               What was he doing with them?
               A:               He was trying to get them out of the bottle to put in
                                his pocket.
               Q:               So what did you do?

       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015   Page 7 of 10
               A:               I punched him in the face.
               Q:               Well did you think he was stealing your Xanax’s
                                [sic] ?
               A:               Yes.
               Q:               Why did you think that?
               A:               Because he has before.
               STATE:           Objection Your Honor. I don’t think that is
                                relevant and I would ask for that to be stricken.
               COURT:           Yeah, sustained.


       Id. pp. 45-46. McCall then testified that she saw B.D. take the lid off of the

       bottle and saw the pills scatter after she punched him the second time. She

       claimed that she did not punch him because of the babysitting dispute, but

       because she was protecting her property.


[14]   The trial court correctly excluded the testimony here. Indiana Evidence Rule

       404(b) prohibits the introduction of evidence of “a crime, wrong, or other act”

       “to prove a person’s character in order to show that on a particular occasion the

       person acted in accordance with the character.” McCall claims on appeal that

       it was improper to exclude her testimony about B.D.’s recent arrest for

       domestic battery because it supported the reasonableness of her actions—

       punching B.D.—because she feared he would harm her again. Appellant’s Br.

       pp. 8-9. However, McCall did not present this argument to the trial court. A

       defendant “is limited to the specific grounds argued to the trial court and cannot

       assert new bases for admissibility for the first time on appeal.” Taylor v. State,



       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015   Page 8 of 10
       710 N.E.2d 921, 923 (Ind. 1999). After the trial court sustained the objection,

       McCall moved on with her testimony. This argument has been waived.


[15]   Waiver notwithstanding, the testimony could only serve the purpose of proving

       the “forbidden inference” of B.D.’s bad character. McCall could have

       supported her self-defense argument with other evidence that she was afraid of

       B.D. and felt it necessary to punch him. In terms of self-defense, “[f]orce is not

       justified if the defendant enters into combat with another person or is the initial

       aggressor, unless the defendant communicates an intent to withdraw and the

       other person nevertheless continues or threatens to continue unlawful action.”

       Brand v. State, 766 N.E.2d 772, 777 (Ind. Ct. App. 2002), trans. denied. The

       evidence presented by the State overwhelmingly established that McCall was

       the aggressor and was not in fear of B.D. The trial court did not err.


[16]   Furthermore, the testimony that B.D. had previously stolen Xanax from

       McCall was properly excluded. McCall testified that she saw him remove the

       bottle from her purse, open the bottle, and attempt to put the pills in the pocket

       of his pants on the date of the offense. Thus, she was allowed to present

       evidence to support her claim of defense of property. McCall did not present

       any argument in support of the admissibility of the testimony about the prior

       incident at trial. Instead, McCall was directed by counsel to focus her

       testimony on what happened on the date in question. Therefore, the only

       purpose that could be served by the testimony would have been to establish

       B.D.’s bad character.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015   Page 9 of 10
[17]   The case against McCall turned on the credibility of the witnesses. McCall

       presented her arguments, but the trial court explicitly found B.D.’s and

       Gyetko’s testimony to be more credible. We will not reweigh the evidence or

       reassess the credibility of witnesses. Heaton v. State, 483 N.E.2d 58, 59 (Ind.

       1985).


                                                Conclusion
[18]   In light of the above, we affirm the trial court’s decision.


[19]   Affirmed.


       Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015   Page 10 of 10
