MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                          Feb 28 2020, 10:41 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David W. Stone IV                                        Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Otis Charles Mitchell,                                   February 28, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1973
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Mark K. Dudley,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         48C06-1703-F6-627



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1973 | February 28, 2020                  Page 1 of 8
                                       Statement of the Case
[1]   Otis Charles Mitchell appeals the trial court’s revocation of his probation.

      Mitchell raises a single issue for our review, namely, whether the trial court

      erroneously rejected his claim of self-defense against a correctional officer on

      the ground that an inmate could not claim self-defense. As Mitchell is mistaken

      in his understanding of why the trial court rejected his claim of self-defense, we

      affirm.


                                 Facts and Procedural History
[2]   On April 7, 2019, James Biby was working as a correctional officer at a work-

      release facility in Pendleton. That facility consisted in relevant part of a day

      room, where inmates were permitted, and a control room, where officers could

      monitor the inmates. The day room and the control room were separated by a

      locked door with a buzzer that the prisoners could use to communicate with the

      officers. An orange line was marked on the ground a few feet in front of the

      door.


[3]   That day, Mitchell crossed the orange line, approached the buzzer, and pushed

      the buzzer for approximately ten minutes. Several of the correctional officers

      directed Mitchell “to get off the buzzer and stand behind the orange line,” but

      Mitchell refused. Tr. at 10. Officer Biby then repeated those commands, and

      Mitchell responded by saying “he’s not f***ing moving.” Id. Mitchell then

      began hitting the doors. Pushing the buzzer repeatedly is a facility rule




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1973 | February 28, 2020   Page 2 of 8
      violation. It is also a facility rule violation “to stand in front of the orange line

      after being told to go behind the orange line.” Id. at 11.


[4]   In light of Mitchell’s recalcitrance, Officer Biby opened the door and “repeated

      [the] command for [Mitchell] to step back.” Id. at 12. Instead, Mitchell

      “squared up” to Officer Biby, “attempted to place his face on [Officer Biby’s]

      face,” and took an “aggressive stance.” Id. Mitchell also “continued to yell” at

      Officer Biby. Id. Pursuant to his training, Officer Biby “attempted to grab

      [Mitchell’s] wrist and place him in cuffs.” Id. Mitchell “then . . . struck [Officer

      Biby] in the face.” Id. After a short struggle, officers restrained Mitchell.


[5]   The State filed its petition to revoke Mitchell’s placement on work release. At

      an ensuing fact-finding hearing to the trial court, Officer Biby testified about the

      April 7 incident, and the State played a security video that corroborated Officer

      Biby’s testimony. Mitchell asserted that “[t]he only thing that led to [the fight]

      is the officers provoked [Mitchell] into combat” and, as such, he merely acted

      in self-defense when he struck Officer Biby. Id. at 34-35.


[6]   The trial court responded to the State’s evidence and Mitchell’s claim of self-

      defense as follows:


              I find the State has met its burden of proof as to [the fight
              allegation]. Why do I do that Mr. Mitchell? . . . [B]ased on the
              testimony and in the video . . . it clearly was not a preplanned
              [“]let’s get Mr. Mitchell[”] from the [officers]. It was a response
              to your conduct that day. . . . [I]t’s very clear to me from the
              video that . . . you buzzed, you go away, you come back. You
              buzzed repeatedly. You’re . . . agitated, your hand gestures. . . .

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1973 | February 28, 2020   Page 3 of 8
              [C]learly your hand gestures indicate that you were upset about
              something . . . . [T]hey responded . . . and the video clearly
              shows that [Officer Biby] came through the door before anything
              other than you turning towards him. You get shoved in the
              chest. He goes for your arm. You strike back. That’s the problem
              is where you are you don’t have that option. That’s not available to you.
              And so . . . that’s why this Court has ruled the way it has.


      Id. at 36-37 (emphasis added). The court then revoked Mitchell’s placement on

      work release. This appeal ensued.


                                     Discussion and Decision
[7]   Mitchell appeals the trial court’s revocation of his placement on work release.

      As our Supreme Court has explained:


              For purposes of appellate review, we treat a hearing on a petition
              to revoke a placement in a community corrections program the
              same as we do a hearing on a petition to revoke probation.
              Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998). The
              similarities between the two dictate this approach. Both
              probation and community corrections programs serve as
              alternatives to commitment to the Department of Correction and
              both are made at the sole discretion of the trial court. Million v.
              State, 646 N.E.2d 998, 1001 (Ind. Ct. App. 1995). A defendant is
              not entitled to serve a sentence in either probation or a
              community corrections program. Rather, placement in either is a
              “matter of grace” and a “conditional liberty that is a favor, not a
              right.” Id. at 1002 (quoting Gilfillen v. State, 582 N.E.2d 821, 824
              (Ind. 1991)).


                                                  ***




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1973 | February 28, 2020   Page 4 of 8
              Our standard of review of an appeal from the revocation of a
              community corrections placement mirrors that for revocation of
              probation. Brooks, 692 N.E.2d at 953. A probation hearing is
              civil in nature and the State need only prove the alleged
              violations by a preponderance of the evidence. Braxton v. State,
              651 N.E.2d 268, 270 (Ind. 1995). We will consider all the
              evidence most favorable to supporting the judgment of the trial
              court without reweighing that evidence or judging the credibility
              of witnesses. Id. If there is substantial evidence of probative
              value to support the trial court’s conclusion that a defendant has
              violated any terms of probation, we will affirm its decision to
              revoke probation. Id. (citing Menifee v. State, 600 N.E.2d 967, 970
              (Ind. Ct. App. 1992)).


      Cox v. State, 706 N.E.2d 547, 549, 551 (Ind. 1999) (footnotes omitted).


[8]   According to Mitchell, the trial court here erred as a matter of law when it

      rejected his claim of self-defense. “A valid claim of self-defense is legal

      justification for an otherwise criminal act.” Coleman v. State, 946 N.E.2d 1160,

      1165 (Ind. 2011). A claim of self-defense generally requires the defendant to

      show “(1) he was in a place where he had a right to be; (2) he acted without

      fault; and (3) he had a reasonable fear of death or great bodily harm.” Id.


[9]   Specifically, Mitchell asserts that the only reason the trial court rejected his

      claim of self-defense was the court’s mistaken belief that that defense was not

      available to an inmate. Despite his argument that, as a matter of law, an

      inmate is entitled to claim self-defense against an officer, Mitchell makes no

      mention of Indiana Code Section 35-41-3-2, which expressly provides for claims

      of self-defense against correctional officers, who are public servants, in relevant

      part as follows:
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1973 | February 28, 2020   Page 5 of 8
        (i) A person is justified in using reasonable force against a public
        servant if the person reasonably believes the force is necessary to:


                 (1) protect the person or a third person from what the
                 person reasonably believes to be the imminent use of
                 unlawful force . . . .


        (j) Notwithstanding subsection (i), a person is not justified in
        using force against a public servant if:


                 (1) the person is committing or is escaping after the
                 commission of a crime;


                 (2) the person provokes action by the public servant with
                 intent to cause bodily injury to the public servant;


                 (3) the person has entered into combat with the public
                 servant or is the initial aggressor, unless the person
                 withdraws from the encounter and communicates to the
                 public servant the intent to do so and the public servant
                 nevertheless continues or threatens to continue unlawful
                 action; or


                 (4) the person reasonably believes the public servant is:


                         (A) acting lawfully; or


                         (B) engaged in the lawful execution of the public
                         servant’s official duties.


Ind. Code § 35-41-3-2 (2019); see also I.C. § 35-31.5-2-185(a)(1).




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1973 | February 28, 2020   Page 6 of 8
[10]   We think Mitchell’s failure to so much as mention an obviously relevant and

       potentially controlling statute is a waiver of his appellate argument. As he fails

       to not even mention Indiana Code Section 35-41-3-2, he certainly does not

       apply the facts to that statute or otherwise present any cogent argument as to

       how those statutory provisions may or may not apply here. Accordingly,

       Mitchell’s appellate argument is waived for not being supported by citation to

       relevant authority or cogent reasoning. Ind. Appellate Rule 46(A)(8)(a).


[11]   Waiver notwithstanding, Mitchell’s argument hinges on the trial court’s

       statement at the close of the fact-finding hearing that “the problem is where you

       are you don’t have that option. That’s not available to you.” Tr. at 37.

       Mitchell interprets that statement to mean that the court concluded that he was

       unable to claim self-defense as a matter of law. We cannot agree with

       Mitchell’s interpretation of the trial court’s statement.


[12]   The trial court’s comment was within the court’s assessment of the totality of

       the evidence. Again, the court stated as follows:


               I find the State has met its burden of proof as to [the fight
               allegation]. Why do I do that Mr. Mitchell? . . . [B]ased on the
               testimony and in the video . . . it clearly was not a preplanned
               [“]let’s get Mr. Mitchell[”] from the [officers]. It was a response
               to your conduct that day. . . . [I]t’s very clear to me from the
               video that . . . you buzzed, you go away, you come back. You
               buzzed repeatedly. You’re . . . agitated, your hand gestures. . . .
               [C]learly your hand gestures indicate that you were upset about
               something . . . . [T]hey responded . . . and the video clearly
               shows that [Officer Biby] came through the door before anything
               other than you turning towards him. You get shoved in the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1973 | February 28, 2020   Page 7 of 8
               chest. He goes for your arm. You strike back. That’s the problem
               is where you are you don’t have that option. That’s not available to you.
               And so . . . that’s why this Court has ruled the way it has.


       Id. at 36-37 (emphasis added).


[13]   Although the italicized language above could have been more clear, we

       conclude that the totality of the court’s commentary reflects its position that the

       evidence did not support Mitchell’s claim of self-defense as a matter of fact, not

       that Mitchell could not raise such a defense as a matter of law. But Mitchell

       makes no argument on appeal as to whether the court erred in its assessment of

       the evidence against him. Thus, Mitchell has not met his burden on appeal to

       demonstrate reversible error. App. R. 46(A)(8)(a).


[14]   That said, Officer Biby’s testimony, which was corroborated by the security

       video, supports the trial court’s conclusion that the facts were not with Mitchell

       on his self-defense claim. The evidence shows Mitchell was over the orange

       line—a place he was not permitted to be after the officers told him to step back;

       Mitchell provoked the action or was the initial aggressor; and Officer Biby’s

       actions were lawful and in the execution of his official duties. Accordingly, we

       affirm the trial court’s revocation of Mitchell’s placement on work release.


[15]   Affirmed.


       Vaidik, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1973 | February 28, 2020   Page 8 of 8
