MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Jun 20 2017, 9:15 am

regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Deborah Markisohn                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ashley Nicole Nelson,                                    June 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1609-CR-2183
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow
Appellee-Plaintiff.                                      Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1604-F6-12643



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2183 | June 20, 2017         Page 1 of 7
                                               Case Summary

[1]   Ashley Nelson appeals her conviction for Class B misdemeanor battery. We

      affirm.


                                                      Issue

[2]   Nelson raises one issue, which we restate as whether there was sufficient

      evidence to find that the State rebutted Nelson’s self-defense claim.


                                                      Facts

[3]   On April 5, 2016, Nelson was charged with Level 6 felony domestic battery and

      Class A misdemeanor battery resulting in bodily injury, pursuant to a physical

      altercation between Nelson and her husband, T.M. On August 19, 2016,

      Nelson filed a motion to exclude the testimony of T.M. because he had failed

      twice to appear for a recorded statement. The trial court granted that motion

      on August 22, 2016. On August 26, 2016, the State filed a motion to amend the

      charging information stating that, it did not have enough evidence to proceed

      with counts I and II, and instead wished to amend the charge to Class B

      misdemeanor battery. The trial court granted this motion on August 29, 2016.


[4]   A jury trial began on August 31, 2016. During the trial, Officer Samuel

      Willford testified that on the night of March 31, 2016, he responded to a

      domestic disturbance call on North Olney Street in Indianapolis. Nelson later

      testified that this was the address of the house where she and T.M. had been

      living at the time. Officer Willford testified that he arrived about two or three

      minutes after the call and that, when he arrived at the house, he saw T.M.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2183 | June 20, 2017   Page 2 of 7
      running out of the house and a vacuum cleaner thrown after him. Officer

      Willford then testified that he saw Nelson come out the front door and kick

      T.M. in his back. Officer Willford also stated that neither Nelson nor T.M.

      noticed that he was on the scene when he first arrived, but once T.M. noticed

      Officer Willford’s presence, T.M. called out to him, stating that he was in pain.

      Officer Willford testified that both T.M. and Nelson were yelling and screaming

      as he approached the house. Officer Willford also testified that he did not see

      any injuries on T.M. and did not take any pictures of injuries. Officer Willford

      testified that he had spoken to Nelson the night of the incident and that she did

      not inform him that T.M. physically touched her in any way.


[5]   Nelson testified that the night of March 31, 2016 was “very bad.” Tr. p. 68.

      Nelson stated, “[T.M.] got very rude and mad at how his life was going.” Id.

      Nelson claimed they “had a physical conflict, like fussin’.” Id. at 69. She stated

      that he tried to choke her and that he grabbed her head. Nelson alleged that her

      eyes rolled in the back of her head when T.M. choked her and that T.M. had

      pulled some of her braids out. Nelson testified that she asked T.M. to leave but

      that “he turned back around and [they] was tusslin’. By the time he was

      walkin’ out the door I done already threw the vacuum cleaner.” Id. at 70.

      Nelson denied kicking or punching T.M. Nelson claimed that she told Officer

      Willford that T.M. physically assaulted her. Nelson also testified that she




      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2183 | June 20, 2017   Page 3 of 7
      believed T.M. was on “piff” because “his eyes were dilated and he was

      sweating real bad.”1 Id. at 100.


[6]   The jury found Nelson guilty of Class B misdemeanor battery. She now

      appeals.

                                                    Analysis

[7]   Nelson argues that the State failed to disprove her claim of self-defense beyond

      a reasonable doubt. When reviewing a challenge to sufficiency of evidence to

      rebut a claim of self-defense, the standard is the same for any sufficiency of

      evidence claim. Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). 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. This court considers only the

      evidence most favorable to the verdict and all reasonable inferences therefrom.

      Id.


[8]   “A valid claim of self-defense is a legal justification for an otherwise criminal

      act.” Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011). Indiana Code

      Section 35-41-3-2 (c) provides in part, “A person is justified in using reasonable

      force against any other person to protect the person or third person from what

      the person reasonably believes to be the imminent use of unlawful force.” In

      order to prevail on a claim of self-defense, a defendant must show: (1) he was in




      1
          T.M. did not testify.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2183 | June 20, 2017   Page 4 of 7
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. Cole v. State, 28 N.E.3d 1126,

1137 (Ind. Ct. App. 2015). “When a case does not involve deadly force, a

defendant must only show that he was protecting himself from what he

reasonably believed to be the imminent use of unlawful force.” Dixson v. State,

22 N.E.3d 836, 839 (Ind. Ct. App. 2014) trans. denied. An initial aggressor or a

mutual combatant must withdraw from the encounter and communicate the

intent to do so to the other person before she may claim self-defense. Wilson,

770 N.E.2d at 801. Indiana Code Section 35-41-3-2(g) provides in part that “a

person is not justified in using force, if: … (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.” A self-defense claim fails if a defendant continues to use

force against a retreating victim. See Wilson, 770 N.E.2d at 801. “When a

claim of self-defense is raised and finds support in the evidence, the State has

the burden of negating at least one of the necessary elements.” Id. at 800. “The

State may meet this burden by rebutting the defense directly, by affirmatively

showing the defendant did not act in self-defense, or by simply relying upon the

sufficiency of its evidence in chief.” Miller v. State, 720 N.E.2d 696, 700 (Ind.

1999). Whether the State has met its burden is a question of fact for the fact-

finder. Id. The force used in self-defense must be proportionate to the

requirements of the situation. Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct.

App. 2014) trans. denied. A claim of self-defense will fail if the person uses more
Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2183 | June 20, 2017   Page 5 of 7
       force than is reasonably necessary under the circumstances. Id. Where a

       person has used more force than necessary, the right to self-defense is

       extinguished. Id. Even if Nelson was not the initial aggressor, self-defense

       generally does not shield an accused from liability if he or she participated

       willingly in the violence. Wilson, 770 N.E.2d at 800.


[9]    Nelson contends that she did not provoke the altercation that occurred between

       her and T.M. Nelson argues that Officer Willford only observed “a small

       portion of the altercation between Nelson and [T.M.], including [T.M.] being

       injured by either the vacuum cleaner or a kick.” Appellant’s Br. p. 11. Nelson

       contends that because T.M. had choked her and pulled her hair, she “had a

       reasonable fear of great bodily harm when she attempted to get [T.M.] to leave

       the house more quickly by pushing the vacuum after him.” Appellant’s Br. p.

       10. Although Nelson admits that Officer Willford’s observation was sufficient

       to establish that a battery occurred, she argues, “The State did not refute [her]

       claim of self-defense.” Id. The evidence presented by the State shows

       otherwise.


[10]   The State presented testimony from Officer Willford disputing Nelson’s

       testimony. Officer Willford stated that Nelson did not tell him about the events

       that occurred prior to his arrival and he only testified to what he observed.

       Even if the jury accepted Nelson’s reasoning for using the vacuum to make

       T.M. leave more quickly, both she and Officer Willford testified that T.M. was

       leaving the house when the vacuum was used. Additionally, Officer Willford

       testified that he observed Nelson kick T.M. in the back.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2183 | June 20, 2017   Page 6 of 7
[11]   Based on the evidence presented, a reasonable fact-finder could conclude that

       by throwing or pushing the vacuum after T.M., and kicking him with his back

       turned after he left the house, Nelson’s privilege of self-defense had already

       expired, not only because the perceived threat was no longer imminent, but

       because she used more force than was reasonably necessary. The jury was not

       obligated to believe Nelson’s claim of self-defense in light of evidence to the

       contrary. See McCullough v. State, 985 N.E.2d 1135, 1139 (Ind. Ct. App. 2013)

       trans. denied.


                                                   Conclusion

[12]   There is sufficient evidence to support the jury’s finding that the State rebutted

       Nelson’s self-defense claim beyond a reasonable doubt and to support Nelson’s

       conviction for battery as a Class B misdemeanor. We affirm.


[13]   Affirmed.


       Baker, J., and Crone, J., concur.




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