MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Jul 17 2019, 10:53 am

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
Mark D. Altenhof                                          Curtis T. Hill, Jr.
Elkhart County Public Defender’s Office                   Attorney General of Indiana
Elkhart, Indiana
                                                          Samantha M. Sumcad
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                           IN THE
    COURT OF APPEALS OF INDIANA

Todd S. Fruth,                                            July 17, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-347
        v.                                                Appeal from the
                                                          Elkhart Superior Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       Kristine A. Osterday, Judge
                                                          Trial Court Cause No.
                                                          20D01-1707-F6-967



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019                       Page 1 of 8
[1]   Todd S. Fruth (“Fruth”) was convicted after a bench trial of domestic battery

      committed in the presence of a child less than sixteen years of age.1 On appeal,

      Fruth raises the following issues:


                 I.       Whether the State presented sufficient evidence to support
                          the conviction; and


                 II.      Whether the State disproved Fruth’s claim of self-defense.


[2]   We affirm.


                                         Facts and Procedural History
[3]   On July 2017, Fruth and his wife of eleven years, Amanda Fruth (“Amanda”),

      were preparing dinner for their seven children. Tr. at 72. Fruth was exhausted

      by the long day of yard work, and Amanda was recovering from a recent

      miscarriage. Id. at 75. Amanda and Fruth had argued throughout the day. Id.

      at 72.


[4]   As they were preparing dinner, their argument escalated. Id. at 73. All seven

      children were in the living room down the hall from the kitchen. Id. at 93.

      Amanda and Fruth’s oldest daughter, M.F., and another child came into the

      kitchen and asked their parents to stop arguing, but they did not. Id. at 74. The

      argument became heated, and Fruth was no longer making eye contact with

      Amanda. Id. at 77-78. Amanda took Fruth’s phone from him in an attempt to




      1
          See Ind. Code § 35-42-2-1.3.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019     Page 2 of 8
      get his attention. Id. at 78. The couple continued to argue, and this angered

      Fruth even more. Id. at 73. After a few minutes, Fruth shoved Amanda, who

      then fell on the kitchen counter. Id. at 73, 85. Id. at 85. M.F. later testified that

      she heard her parents arguing and saw her mom fall. Id. at 95.


[5]   After the altercation, police were notified and arrived at the Fruth home. Id. at

      15. Officer Brandon Stevens of the Elkhart City Police Department noticed red

      marks on Amanda’s shoulder blade, knees, and upper arms. Id. at 17-18, 27-28.

      Officer Stevens did not notice any marks on Fruth. Appellant’s App. Vol. II at 39.

      Fruth was arrested and charged with domestic battery committed in the

      presence of a child less than sixteen years of age. Id. at 29-30.


[6]   On October 19, 2018, a bench trial was held. Appellant’s App. Vol. II at 34. At

      the conclusion of the trial, Fruth was found guilty as charged. Id. at 17. On

      January 11, 2019, the trial judge sentenced Fruth to 361 days on probation. Id.

      Fruth now appeals his conviction.


                                     Discussion and Decision

                                    I.       Sufficiency of Evidence
[7]   When we review the sufficiency of the evidence, we do not determine the

      credibility of witnesses or reweigh the evidence. Boggs v. State, 928 N.E.2d 855,

      864 (Ind. Ct. App. 2010), trans. denied. We consider only the evidence most

      favorable to the verdict and the reasonable inferences that can be drawn from

      this evidence. Fuentes v. State, 10 N.E. 3d 68, 75 (Ind. Ct. App. 2014), trans.

      denied. We will not disturb the jury’s verdict if there is substantial evidence of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019   Page 3 of 8
      probative value to support it. Id. Circumstantial evidence can sustain a

      conviction. Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans.

      denied. Circumstantial evidence does not need to exclude every reasonable

      hypothesis of innocence and can sustain a conviction if an inference may

      reasonably be drawn from the evidence to support the judgment. Id. We will

      affirm unless no reasonable fact-finder could find the elements of the crime

      proven beyond a reasonable doubt. Delagrange v. State, 5 N.E.3d 354, 356 (Ind.

      2014).


[8]   To support a conviction for Level 6 felony domestic battery committed in the

      presence of a child less than 16 years of age, the State must prove that Fruth

      knowingly or intentionally touched a family member in a rude, insolent, or

      angry manner and that Fruth knew the child was present and “might be able to

      see or hear the offense.” Ind. Code § 35-42-2-1.3(a)(1). “It is sufficient that the

      child might see or hear the battery.” Manuel v. State, 971 N.E.2d 1262, 1270

      (Ind. Ct. App. 2012) (emphasis in original). Presence has been defined as

      “knowingly being within either the possible sight or hearing of a child.” True v.

      State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011). A child does not

      necessarily have to see the battery, there needs to only be the “possibility that

      they might see or hear it.” Id.


[9]   In challenging the sufficiency of evidence, Fruth does not contend there is

      insufficient evidence that he shoved Amanda but only that he did not shove

      Amanda within the presence of M.F. Specifically, Fruth argues that the State



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019   Page 4 of 8
       failed to prove that M.F was able to see or hear the battery because the State did

       not prove M.F.’s location at the specific moment the battery occurred


[10]   Here, a rational fact-finder could find beyond a reasonable doubt that Fruth

       committed battery in the presence of a child less than sixteen years of age. The

       evidence most favorable to the verdict established that M.F. was aware that her

       parents were arguing and noted that the argument had become “abusive.” Tr.

       at 94. Fruth does not argue that he did not shove Amanda, he only argues that

       M.F.’s location was not proven by the State. However, M.F. testified that she

       saw her mom fall on the counter despite not seeing the actual battery itself. Id.

       at 95. Further, Fruth knew the children were present because M.F. and another

       child had asked Fruth and Amanda to stop arguing. Id. at 74. M.F. could have

       heard the battery and Fruth knew the children were present, and this is

       sufficient to support the conviction.


                       II.     Rebutting Fruth’s Claim of Self-Defense
[11]   The standard for reviewing a challenge to the sufficiency of evidence to rebut a

       self-defense claim is the same standard for a claim of insufficient evidence.

       Ervin v. State, 114 N.E. 888, 895 (Ind. Ct. App. 2018), trans. denied. We neither

       reweigh the evidence nor judge the credibility of the witnesses. Id. We consider

       only the probative evidence and reasonable inferences supporting the trial

       court’s decision. Id. We will affirm a conviction if there is substantial evidence

       of probative value such that a reasonable trier of fact could have concluded the

       defendant was guilty beyond a reasonable doubt. Id.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019   Page 5 of 8
[12]   Indiana’s self-defense statute provides:


               A person: (1) is justified in using reasonable force, including
               deadly force, against any other person; and (2) does not have a
               duty to retreat; if the person reasonably believes that the force is
               necessary to prevent serious bodily injury to the person or a third
               person on 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).


               To prevail on such claims, a defendant must show he: (1) was in
               a place where 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. When a claim of self-defense
               is raised and finds support in the evidence, the State bears the
               burden of negating at least one of the necessary elements.


       Ervin, 114 N.E.3d at 896 (internal citations omitted). To disprove a claim of

       self-defense, the State must negate at least one of the required elements. King v.

       State, 61 N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied.


[13]   Fruth contends that the State failed to disprove his self-defense claim. He

       claims that Amanda was the aggressor and points to Amanda’s act of grabbing

       his phone as the initial act of violence. Appellant’s Br. at 12. Fruth further

       argues that, because Amanda was the initial aggressor, he instinctively shoved

       her as a defensive measure. Id. at 13.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019   Page 6 of 8
[14]   Here, the State rebutted Fruth’s claim of self-defense by showing that Fruth did

       provoke, instigate, or participated willingly in the violence and did not have a

       reasonable fear of death or great bodily harm. The State introduced testimony

       that Fruth shoved Amanda during a heated argument. Tr. at 85. The act of

       shoving his wife could lead a reasonable fact-finder to conclude that Fruth

       provoked or instigated the violence. Although Amanda was the first to act,

       grabbing a phone does not constitute provocation. Fruth did not shove Amanda

       until minutes after Amanda grabbed his phone. Fruth responded to Amanda

       with more force than necessary. Second, the State introduced evidence that

       Fruth did not have a reasonable fear of death or great bodily harm. Id. at 110.

       Fruth claims that he shoved Amanda because she hit his blood glucose monitor;

       however, Fruth did not shove his wife until many moments after Amanda

       possibly hit his monitor. Even if Amanda did accidently hit Fruth’s glucose

       monitor, her actions are still not considered to cause a reasonable fear of great

       bodily harm or death. The act of taking Fruth’s phone was not a violent act.

       Thus, Fruth did not have a reasonable fear of death or great bodily harm.

       Therefore, the State rebutted Fruth’s claim of self-defense.


[15]   M.F.’s testimony established sufficient evidence to support the conviction of

       domestic battery in the presence of a child less than sixteen years of age. M.F.

       saw the effect of the battery and was able to hear the exchange. Furthermore,

       Fruth’s claim of self-defense must fail as the State proved that Fruth was not in

       fear of death or great bodily harm and that Fruth provoked or willingly

       participated in the violence.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019   Page 7 of 8
[16]   Affirmed.


       Vaidik, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019   Page 8 of 8
