MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    Feb 22 2016, 5:31 am
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
Sean P. Hilgendorf                                       Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

David Cobb,                                              February 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1506-CR-627
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff                                       Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1407-FC-130



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-627 | February 22, 2016          Page 1 of 5
                                          Case Summary
[1]   David Cobb (“Cobb”) appeals his conviction for Battery, as a Class C felony. 1

      We affirm.



                                                    Issue
[2]   Cobb presents a sole issue for review: whether the evidence supporting the

      conviction is insufficient because the State failed to negate Cobb’s claim of self-

      defense.



                                   Facts and Procedural History
[3]   In June of 2014, Percy and Valarie Doggett were living with Cobb in a South

      Bend residence. The Doggetts purchased a window air conditioning unit.

      During the installation process, Percy retrieved a power strip from Cobb’s

      room. When Cobb returned and found the power strip missing, he began

      pounding on the Doggetts’ bedroom door and cursing. Eventually, Cobb

      stormed out of the house.


[4]   Valarie became concerned that Cobb might take their DVD player and she told

      Percy to retrieve it from the living room. While Percy was kneeling in front of

      the television unhooking the DVD player, Cobb came back into the house.




      1
          Ind. Code § 35-42-2-1.


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      Cobb punched Percy in the face. Percy fell and Cobb began kicking him.

      Valarie, who had observed Cobb strike Percy, ran into the bedroom and called

      9-1-1.


[5]   When police arrived, Percy initially rejected medical attention. However, by

      the next day he was in severe pain and he went to a hospital. There, it was

      discovered that Percy had a cracked rib, a collapsed lung, two broken facial

      bones, and a broken nose. After surgery, Percy spent a few days in the hospital

      recuperating and missed nearly one month of work.


[6]   On July 8, 2014, Cobb was charged with Battery. On April 21, 2015, a jury

      found Cobb guilty as charged. He was sentenced to six years imprisonment.

      This appeal ensued.



                                 Discussion and Decision
[7]   Cobb contends that the State’s evidence fell short of disproving his claim of self-

      defense. To support his argument, he points to his own testimony that Percy

      swung at him first in the living room, that Percy had twice struck him during

      the dispute over the power strip, and that Percy had struck him a week earlier –

      claims contradicted by the Doggetts’ testimony.


[8]   To convict Cobb of Battery, as a Class C felony, as charged, the State was

      required to show that he knowingly touched Percy in a rude, insolent, or angry

      manner, resulting in serious bodily injury to Percy. I.C. § 35-42-2-1; App. at 21.

      When reviewing a claim of insufficiency of the evidence, we do not reweigh the

      Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-627 | February 22, 2016   Page 3 of 5
       evidence or judge the credibility of the witnesses, but will consider only the

       probative evidence and reasonable inferences supporting the verdict. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm the conviction unless no

       reasonable trier of fact could find the elements of the crime proven beyond a

       reasonable doubt. Id.


[9]    A valid claim of self-defense is legal justification for an otherwise criminal act.

       Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997). “A person is justified in using

       reasonable force against another person to protect the person or a third person

       from what the person reasonably believes to be the imminent use of unlawful

       force.” Ind. Code § 35-41-3-2(c).


[10]   When a defendant raises a claim of self-defense, he is required to show three

       facts: (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. Wallace v.

       State, 725 N.E.2d 837, 840 (Ind. 2000). The defendant’s belief must be

       reasonable and in good faith and his “reaction to that belief must be reasonable

       based upon the surrounding circumstances under which the events have

       occurred.” Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995).


[11]   Once a defendant claims self-defense, the State bears the burden of disproving

       at least one of these elements beyond a reasonable doubt for the defendant’s

       claim to fail. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). 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


       Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-627 | February 22, 2016   Page 4 of 5
       of its evidence in chief. Id. Whether the State has met its burden is a question

       of fact for the jury. Id. Self-defense is generally unavailable to a defendant who

       is the initial aggressor. Id.


[12]   The evidence negating Cobb’s claim of self-defense is as follows. Valarie and

       Percy testified that a verbal disagreement ensued when Cobb discovered the

       power strip was missing, but they each denied that Percy struck Cobb. Percy

       testified that he was kneeling when Cobb came up from behind him and struck

       him. When Percy fell to the ground, he could feel Cobb kicking him. He

       “blacked out” at some point. (Tr. at 73.) The State presented evidence that

       Cobb was the initial aggressor and continued to attack Percy even as he lay on

       the floor. Accordingly, the State presented sufficient evidence from which the

       jury could conclude that Cobb did not act in self-defense.


[13]   Affirmed.


       Vaidik, C.J. and Crone, J., concur.




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