MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Jun 11 2018, 6:10 am
this Memorandum Decision shall not be                                  CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                       Curtis T. Hill, Jr.
Oldenburg, Indiana                                       Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Terry Baksh,                                             June 11, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1711-CR-2591
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton A.
Appellee-Plaintiff                                       Graham, Judge
                                                         Trial Court Cause No.
                                                         49G07-1611-CM-44639



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2591 | June 11, 2018       Page 1 of 6
[1]   Following a bench trial, Terry Baksh was convicted of Class A misdemeanor

      battery. On appeal, Baksh argues that the State failed to present sufficient

      evidence to rebut his claim of self-defense.


[2]   We affirm.


                                       Facts & Procedural History


[3]   Around 3:00 a.m. on October 4, 2016, Baksh and Cindy Taylor became

      involved in a verbal argument at Taylor's home. Baksh was the nephew of

      Taylor's boyfriend, and both were living with Taylor at the time. Taylor

      accused Baksh of failing to pay rent that he had agreed to pay. The argument

      ended with no resolution as Baksh merely indicated he might consider moving

      out, rather than paying Taylor rent. The two went to bed and did not speak

      until that afternoon when Taylor returned home from work.


[4]   Upon returning home, Taylor went upstairs to Baksh's room, where she found

      him lying on his bed and playing on his cell phone. Taylor recalled their

      conversation from earlier that morning and asked Baksh whether he had

      decided to stay or leave. The conversation quickly escalated and became

      heated. Taylor accused Baksh of lying to her about the intent to pay the rent

      money, and Baksh became angry. Taylor told Baksh to leave her house, and he

      began to pack.


[5]   While Baksh gathered his belongings, Taylor continued to badger him, calling

      him a liar. Baksh began to shout and punch his bed and then he got up, moved


      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2591 | June 11, 2018   Page 2 of 6
      towards Taylor, and yelled he was "not a fucking liar" Transcript Vol. II at 42.

      Taylor flinched as Baksh approached her and Baksh hit her in the head with a

      closed fist. Taylor then attempted to defend herself and fight back but to no

      avail. Baksh picked her up, slammed her into a bookshelf, threw her against

      two dressers, and then pinned her against a glass window. As Baksh released

      his grip, Taylor fell from the window, and curled up in the fetal position. Baksh

      then placed Taylor in a chokehold.


[6]   After Baksh released Taylor from his hold, Taylor told Baksh to leave the

      house. He proceeded to run across the street to a neighbor's home, while

      Taylor took pictures of her injuries with her cell phone. She then called the

      police. Officer Noel Gudat, an officer with the Indianapolis Metropolitan

      Police Department, observed Taylor had been hit several times on her head and

      neck, was bleeding substantially, and noted that it was difficult for her to

      swallow. Taylor continued to suffer pain from her injuries for nearly a month.

      With Taylor's permission, Officer Gudat entered the house where he observed

      gashes on the walls, blood stains by the window, and pools of blood on a

      dresser.


[7]   On November 11, 2016, the State charged Baksh with Class A misdemeanor

      battery resulting in a bodily injury. Following a bench trial on October 17,

      2017, Baksh was found guilty as charged. The trial court sentenced Baksh to

      365 days in prison with 180 days suspended to probation. Baksh now appeals.

      Additional facts will be provided as necessary.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2591 | June 11, 2018   Page 3 of 6
                                          Decision & Discussion


[8]   Baksh argues that the State did not present sufficient evidence to rebut his claim

      of self-defense. "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 of any

      sufficiency of the evidence claim." Wilson v. State, 770 N.E.2d 799, 801 (Ind.

      2002). We may not reweigh the evidence or judge the credibility of witnesses.

      Bocanegra v. State, 969 N.E.2d 1026, 1028 (Ind. Ct. App. 2012). Where there is

      sufficient evidence of probative value to support the conclusion of the trier of

      fact, the trial court's verdict will be affirmed. Ferrell v. State, 746 N.E.2d 48, 51

      (Ind. 2001).


[9]   Ind. Code Section 35-41-3-2(c) provides that " [a] person is justified in using

      reasonable force against any other person to protect the person or a third party

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

      force." To succeed on a valid self-defense claim, a defendant must show (1) he

      was in a place that he 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. Wilson, 770 N.E.2d at 800-01; see also Bryant v. State, 984

      N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied; Tharpe v. State, 955 N.E.2d

      836, 844 (Ind. Ct. App. 2011). trans. denied. Once a self-defense claim is raised

      by the defendant, the burden is then placed on the State to disprove the claim

      beyond a reasonable doubt. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999).

      The State may accomplish this by rebutting one of the elements directly, by

      affirmatively showing that the defendant did not act in self-defense, or by

      Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2591 | June 11, 2018   Page 4 of 6
       relying on the sufficiency of its evidence in chief. Hood v. State, 87 N.E.2d 492,

       497 (Ind. Ct. Ap. 2007), trans. denied


[10]   A person is not justified in using force if he 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."

       I.C. Section 35-41-3-2(g)(3).


[11]   An "initial aggressor" is one who provokes a fight or who willingly participates

       in it. See Bryant v. State, 984 N.E.2d at 251 ("This evidence reasonably

       establishes that Bryant provoked the fight, or at least participated willingly in it,

       which undermines his claim of self-defense."). In Bryant, A jail inmate was

       found to be an initial aggressor after he became involved in an argument with

       another inmate, challenged him to a fight, and was convicted, despite

       conflicting evidence as to who tried to hit whom first. Id. Additionally, this

       Court found a defendant was an initial aggressor after a verbal argument

       escalated into a physical altercation that resulted in the defendant choking and

       punching the victim. See Cole v. State, 28 N.E.3d 1126, 1129-30 (Ind. Ct. App.

       2015).


[12]   Here, Baksh was the initial aggressor. The verbal dispute between Taylor and

       Baksh intensified when Baksh punched his bunk bed and aggressively moved

       towards Taylor while yelling. Given Baksh's hostile actions that occurred

       immediately before Taylor raised her hands, it is reasonable to infer that


       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2591 | June 11, 2018   Page 5 of 6
       Taylor's actions were not an overt act of aggression, but rather, a reasonable

       defensive reaction to Baksh's aggressiveness. Baksh was the initial aggressor

       because his violent and forceful actions caused what had previously been a

       verbal argument to transform into a physical altercation between Taylor and

       himself. Baksh instigated the fight with his belligerent actions and additionally,

       was the first person to make physical contact. Uncontroverted testimony from

       both Taylor and Baksh established that Baksh struck Taylor multiple times in

       between her shoulder and head with a closed fist as she attempted to defend

       herself from his initial attack. Because the State's evidence supports the

       determination that Baksh was the initial aggressor, Baksh's self-defense claim

       fails and the evidence at trial was sufficient for his conviction.


[13]   Judgement affirmed.


[14]   Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1711-CR-2591 | June 11, 2018   Page 6 of 6
