 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                           May 31 2013, 9:35 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
TIMOTHY J. O’CONNOR                                GREGORY F. ZOELLER
O’Connor & Auersch                                 Attorney General of Indiana
Indianapolis, Indiana
                                                   RYAN D. JOHANNINGSMEIER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

DOMINICK IRBY,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )      No. 49A02-1208-CR-660
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Carol Orbison, Judge
                            Cause No. 49G22-1206-FB-37426


                                          May 31, 2013
                 MEMORANDUM DECISION – NOT FOR PUBLICATION


MATHIAS, Judge
       Dominick Irby (“Irby”) was convicted in Marion Superior Court of Class D felony

Criminal Recklessness. Irby appeals and argues that the State did not present sufficient

evidence to rebut his claim of self-defense.

       We affirm.

                              Facts and Procedural History

       The facts most favorable to the trial court’s judgment reveal that on the evening of

June 3, 2012, Irby provoked an altercation with his girlfriend, Jody Spate (“Spate”) and

her son Carl Kelley (“Kelley”). When Irby and Spate began dating, Irby was seventeen

years old and Spate was either thirty-one or thirty-two years old.         Their six-year

relationship was punctuated with breakups, but they resumed their relationship in

February 2012. Irby wanted to marry Spate and have children with her. In June 2012,

Irby resided with his mother, while Spate lived in her own home with her children from

previous relationships. Irby stayed at Spate’s home from June 1 through June 3 in 2012.

       On June 3, Spate and Irby had a disagreement shortly after they awakened and

remained on bad terms throughout the day. In the evening, Spate decided that Irby

needed to leave her home. Spate’s older son, Kelley, agreed to drop Irby off at his house.

Spate rode along. On the way to Irby’s house, Irby repeatedly told Spate that he wanted

to talk, but Spate refused to do so.

       When they arrived in front of Irby’s home and he remained in the car, Spate

informed Irby that he needed to leave the car or she was calling the police. Irby asked to

use her phone. Spate refused. Spate then exited the vehicle and calmly called out to the

neighbor across the street to call 911. The neighbor did not call 911. Irby climbed from

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the backseat to the front seat and exited the vehicle through the passenger side. He

grabbed Spate by the wrist and attempted to grab her phone from her other hand. Spate

resisted; trying to free her hand and get back in the car.

       Kelley exited the vehicle and tried to intervene to protect his mother. Kelley was

eighteen years of age, but Irby was sixty pounds heavier and four inches taller than

Kelley. Kelley told Irby to leave his mother alone. When Irby ignored Kelley, Kelley

went to the trunk and pulled out an aluminum baseball bat. Kelley approached Irby, but

Irby grabbed the bat from Kelley, hit him in the back of the knee, and threw the bat in the

yard. Irby simultaneously caused Spate to fall to the ground.

       Spate told Kelley to go back to the scene of a nearby car accident they had passed

along the way to ask the police for help. After Kelley left, Spate tried to walk away from

Irby. Irby grabbed Spate’s hand and bent her fingers back. Spate was concerned that

Irby might break her fingers. Spate began to cry, but managed to remove her hand from

Irby. Irby then grabbed Spate and threw her against the back of a sport utility vehicle that

was parked in front his house. When Spate hit the ground, she fractured her ankle in

three places. Irby then told Spate, “Since this relationship is over, I am going to show

you how it feels to hurt.” Tr. p. 37. Irby then grabbed Spate by the hair, and pulled her

several feet across concrete sidewalk and driveway to the corner of the garage. During

this time, he also threatened to kill Spate and her children if he had to serve any time in

jail for the attack. When they reached the corner of the garage, Irby continued to stand

over Spate screaming at her. A neighbor captured a cell phone video of Irby standing

over Spate at the corner of the driveway.

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       At this point, Irby’s Mother and Sister came out of the house. They told Irby to

come inside. Irby replied, “You know I spent six years of my life with this, with her,

trying to work on this. It’s over. What’s to stop me now from going over there and

kicking her head in?” Tr. p. 42. A couple minutes later, Kelley returned with several

police officers. The police placed Irby in handcuffs, and Spate was sent to the hospital in

an ambulance.

       Irby was arrested and charged with Class B felony Aggravated Battery (Count I)

and Class C felony Aggravated Battery (Count II). Irby’s two-day jury trial began on

July 23, 2012. Irby’s attorney requested that the court instruct the jury on Class D felony

Criminal Recklessness as a lesser-included offense of Class B felony Aggravated Battery.

The court granted this request. The jury found Irby guilty of Class D felony Criminal

Recklessness, but not guilty of Class B felony Aggravated Battery (Count I) and Class C

felony Aggravated Battery (Count II). On August 8, 2012, the court sentenced Irby to

two and one-half years: one and one-half years to be served in community correction and

one year suspended to supervised probation. Irby now appeals.

                              I. Sufficiency of the Evidence

       Irby argues that the state presented insufficient evidence to rebut his claim of self-

defense. Upon a challenge to the sufficiency of evidence to support a conviction, we

neither reweigh the evidence nor judge the credibility of the witnesses; instead, we

respect the exclusive province of the trier of fact to weigh any conflicting evidence.

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the probative

evidence and reasonable inferences supporting the verdict, and we will affirm if the

                                             4
probative evidence and reasonable inferences drawn from the evidence could have

allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

Id.

       “Self-defense is recognized as a valid justification for an otherwise criminal act.”

Miller v. State, 720 N.E.2d 696, 699 (Ind.1999). The elements of self-defense are defined

by statute: “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.”

Ind. Code § 35–41–3–2(c). “Notwithstanding subsections (c) through (e), a person is not

justified in using force if: (1) the person is committing or is escaping after the

commission of a crime; (2) the person provokes unlawful action by another person with

intent to cause bodily injury to the other person; or (3) the person has entered into combat

with another person or is the initial aggressor unless the person withdraws from the

encounter and communicates to the other person the intent to do so and the other person

nevertheless continues or threatens to continue unlawful action.”

Ind. Code § 35–41–3–2(g).



                                              5
         Essentially, self-defense is established if a defendant: (1) was in a place
         where the defendant 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. The State carries the burden of disproving
         self-defense. Thus, once a defendant claims self-defense, the State bears
         the burden of disproving at least one of the elements beyond a reasonable
         doubt. The State may meet its burden of proof by rebutting the defense
         directly, by affirmatively showing that the defendant did not act in self-
         defense, or by simply relying upon the sufficiency of its evidence in chief.
         “The amount of force used to protect oneself must be proportionate to the
         urgency of the situation. Where a person has used more force than
         necessary to repel an attack the right to self-defense is extinguished, and
         the ultimate result is that the victim then becomes the perpetrator.

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

citations omitted).

       On the evening of June 3, 2012, Irby did have the right to be in front of his own

home on Neptune Court. However, the evidence is indisputable that Irby instigated the

violence that resulted in injuries to Spate. Irby testified that after he exited Spate’s car,

he grabbed her wrist in an attempt to take her phone. Kelley then exited the vehicle to

assist his mother. Kelley courageously confronted a man four inches taller and sixty

pounds heavier to protect his mother. Although Spate was thrown to the ground during

the confrontation between Irby and Kelley, that fall did not cause her to break her ankle.

After the confrontation, Kelley left to go get the police from the scene of the nearby auto

accident.

       Spate testified that she then walked away from Irby toward a sports utility vehicle

parked on the street in an attempt to avoid further conflict. Tr. p. 34. Irby’s neighbor

testified that Irby threw Spate against the back of the nearby sports utility vehicle and

then dropped her to the concrete. Tr. p. 98. Only then did Spate’s ankle break in three
                                             6
different places. When Irby committed this act, there was no threat to Irby. There is

more than enough probative evidence and reasonable inferences to be drawn from that

evidence to allow a trier of fact to find that the State met its burden of disproving Irby’s

claim of self-defense.

       Affirmed.

BAKER, J., and MAY, J., concur.




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