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                            Feb 10 2014, 9:03 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

NEIL L. WEISMAN                                 GREGORY F. ZOELLER
South Bend, Indiana                             Attorney General of Indiana

                                                RICHARD C. WEBSTER
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

AGUILA BINION,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 71A05-1306-CR-292
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                        The Honorable Jane Woodward Miller, Judge
                             Cause No. 71D01-1302-FD-118



                                     February 10, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BROWN, Judge
       Aguila Binion appeals his conviction for strangulation as a class D felony. Binion

raises one issue, which we revise and restate as whether the evidence is sufficient to

sustain his conviction. We affirm.

                         FACTS AND PROCEDURAL HISTORY

       On February 8, 2013, Binion was at home in South Bend with his wife Hayah

Binion, his children, Hayah’s children, and Hayah’s cousin. Binion is an amateur mixed

martial arts fighter. One of the children, S., who was eight years old, was upstairs in the

home and saw a Jello fruit cup fall out of her sister J.’s pocket. S. picked up the fruit cup

and gave it to one of her sisters, A., who opened the package and began to eat the Jello.

A. took the fruit cup downstairs with her, and Binion, who was in the living room, stated

that A. knew that she was not supposed to eat upstairs. A. said that S. already had the

food upstairs.

       S. came downstairs, and Binion slapped S. in the face. S. started to cry, went

outside, and told Hayah what had happened. Hayah entered the home and told Binion

that J. had the Jello upstairs because she had been packing. Binion was standing “far”

away from Hayah. Transcript at 41. Binion then said: “Well bitch, you already know

that they are not supposed to eat upstairs.” Id. at 22. Hayah told Binion to “keep his f----

-- hands out of her daughter’s face.” Id. at 54. Binion asked “what did [you] say,” and

Hayah replied “I meant what I said.” Id. Binion then “got in [Hayah’s] face, and . . . a

whole bunch of words [were] going back towards each other. . . . F’ers and B’s and stuff

like that.” Id. at 23.



                                             2
         Binion, who was near the television in the living room, walked over to where

Hayah was standing by the living room door, grabbed her by the neck, placed his hands

around her throat, and began to choke her. Hayah attempted unsuccessfully to move

Binion’s hands. She had no air supply, her “legs got numb,” and she “start[ed] to fade”

or pass out. Id. at 55. Hayah’s face turned red and then began to turn purple. S. said

“call the police,” and Binion let go of Hayah. Id. at 26. Hayah gasped for air several

times, could barely speak, and her voice was raspy or hoarse. J. called the police and

gave the phone to Hayah, and Hayah went outside and spoke with the police on the

phone.

         South Bend Police Officer Joshua Morgan arrived at the home and attempted to

pat down Binion. Officer Morgan ordered Binion to place his hands on his head and

interlock his fingers. As Officer Morgan began to place his hands on Binion’s hands,

Binion dipped down, spun around, and grabbed Officer Morgan.              Officer Morgan

attempted to use his foot to sweep Binion off of his feet, but Binion was able to step back

and avoid Officer Morgan’s sweep. Binion pushed Officer Morgan up against the wall,

the two men fell to the floor, and Binion struggled with Officer Morgan for

approximately two minutes until another officer arrived at the scene and assisted with

securing handcuffs on Binion. A few days later, marks appeared on Hayah’s neck.

         On February 11, 2013, the State charged Binion with Count I, battery to a child as

a class D felony; Count II, strangulation as a class D felony; Count III, battery to a law

enforcement officer as a class D felony; Count IV, resisting law enforcement as a class A

misdemeanor; and Count V, possession of cocaine as a class D felony. On April 25,

                                             3
2013, the State orally moved to dismiss Counts III and V, and the court granted the

motion and re-numbered the charge for resisting law enforcement as a class A

misdemeanor from Count IV to Count III. On April 26, 2013, a jury trial was held at

which Binion represented himself. During the trial, Binion asked Hayah if she had hit

him previously, and Hayah responded affirmatively. Binion also elicited testimony from

Hayah that she was angry at the time of the incident and that she used profanity. Hayah

testified on cross-examination that she did not hit Binion on the day of the incident. In

his closing argument, Binion argued that he acted only to protect himself. The jury found

Binion guilty on Counts II and III and not guilty on Count I. The court sentenced Binion

to two years with one year suspended to probation for his conviction under Count II and

to a concurrent one year for his conviction under Count III.

                                             DISCUSSION

       The issue is whether the evidence is sufficient to sustain Binion’s conviction for

strangulation as a class D felony.1 When reviewing the sufficiency of the evidence

needed to support a criminal conviction, we neither reweigh evidence nor judge witness

credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the

evidence supporting the judgment and any reasonable inferences that can be drawn from

such evidence.” Id. We will affirm 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. The uncorroborated testimony of one witness, even if it is the




       1
           Binion does not challenge his conviction for resisting law enforcement.
                                                     4
victim, is sufficient to sustain a conviction. Ferrell v. State, 565 N.E.2d 1070, 1072-1073

(Ind. 1991).

       The offense of strangulation is governed by Ind. Code § 35-42-2-9(b), which

provides:

       A person who, in a rude, angry, or insolent manner, knowingly or
       intentionally:

                 (1)     applies pressure to the throat or neck of another
                         person; or

                 (2)     obstructs the nose or mouth of the another person;[2]

       in a manner that impedes the normal breathing or the blood circulation of
       the other person commits strangulation, a Class D felony.

The State alleged in its charging information that Binion “knowingly and in a rude,

angry, or insolent manner, applied pressure to the throat or neck of Hayah Binion, in a

manner that impeded the normal breathing or the blood circulation of Hayah Binion.”

Appellant’s Appendix at 4-5. Thus, in order to obtain a conviction, the State needed to

prove that Binion knowingly, in a rude, insolent or angry manner, applied pressure to the

throat or neck of Hayah, in a manner that impeded her normal breathing or blood

circulation.

       Binion contends that the State failed to negate his claim of self-defense beyond a

reasonable doubt. He argues that “[i]t can be inferred from the evidence that because [he]

had just slapped Hayah’s daughter over food, jello, being taken upstairs in the house, that

Hayah was angry when she came in the house cussing at him and telling him to keep his


       2
           This is the exact wording of the statute.

                                                       5
f’ing hands out of her daughter’s face” and that “[s]ince [he] was aware that she had hit

him before, it was reasonable, during the confrontation, for him to use his hands in self-

defense, to prevent himself from being hit or from what he could reasonably believe[] to

be the imminent threat of being hit.” Appellant’s Brief at 7. The State maintains that the

evidence shows that Binion, without any provocation, put his hands around Hayah’s

throat and began choking her, that he squeezed her neck and throat until it was difficult

for her to breathe and she began to pass out, that she turned red and began to turn purple,

that after Binion stopped she had to gasp for air, and that several days later marks

appeared on her neck. The State further argues that the evidence is sufficient to rebut

Binion’s claim of self-defense.

       Self-defense is governed by Ind. Code § 35-41-3-2. A valid claim of self-defense

is legal justification for an otherwise criminal act. Wilson v. State, 770 N.E.2d 799, 800

(Ind. 2002). In order to prevail on a self-defense claim, a defendant must demonstrate he

was in a place he had a right to be, did not provoke, instigate, or participate willingly in

the violence, and had a reasonable fear of death or great bodily harm. Id. The amount of

force a person may use to protect himself depends on the urgency of the situation.

Harmon v. State, 849 N.E.2d 726, 730-731 (Ind. Ct. App. 2006). However, if a person

uses “more force than is reasonably necessary under the circumstances,” his self-defense

claim will fail. Id. at 731; see also Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct.

App. 1999) (“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.”).

                                             6
       When a defendant claims self-defense, the State has the burden of disproving at

least one of the elements beyond a reasonable doubt. Wilson, 770 N.E.2d at 800. If a

defendant is convicted despite his claim of self-defense, we will reverse only if no

reasonable person could say that self-defense was negated by the State beyond a

reasonable doubt.    Id. at 800-801.     A mutual combatant, whether or not the initial

aggressor, must declare an armistice before he or she may claim self-defense. Id. at 801.

The standard of review for a challenge to the sufficiency of the evidence to rebut a claim

of self-defense is the same as the standard for any sufficiency of the evidence claim. Id.

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.

       The evidence favorable to the conviction reveals that Hayah entered the living

room after S. told her that Binion had slapped her in the face. S. testified that, when

Hayah entered the living room, Binion was standing “far” away from Hayah. Transcript

at 41. After Hayah stated that J. had the Jello upstairs, Binion stated “[w]ell bitch, you

already know that they are not supposed to eat upstairs,” and Hayah told Binion to “keep

his f------ hands out of her daughter’s face.”     Id. at 22, 54.    Hayah testified that,

immediately prior to the time Binion walked over to her, she was standing in the living

room by the door and Binion was over towards the television in the living room. When

asked whether she walked up to Binion or Binion walked over to her, Hayah testified

“[h]e came to me.” Id. at 58. Binion then grabbed Hayah by the neck, placed his hands

around her throat, and began to choke her, and Hayah attempted to move his hands. She

                                             7
had no air supply, her “legs got numb,” she “start[ed] to fade” or pass out, and her face

turned red and began to turn purple. Id. at 55. Binion released her after S. mentioned

calling the police, and Hayah gasped for air several times and could barely speak.

       Based upon the testimony of Hayah and the children present, Binion was the initial

and only aggressor. The jury could infer from the testimony that Binion participated

willingly in the violence, that he did not have a reasonable fear of death or great bodily

harm, or that the amount of force he used was unreasonable under the circumstances. We

conclude based upon the record that the State presented evidence of a probative nature

from which a reasonable trier of fact could have determined beyond a reasonable doubt

that Binion did not validly act in self-defense and that he was guilty of strangulation as a

class D felony. See Rodriguez v. State, 714 N.E.2d 667, 670-671 (Ind. Ct. App. 1999)

(holding that sufficient evidence existed to rebut the defendant’s claim of self-defense),

trans. denied.

       For the foregoing reasons, we affirm Binion’s conviction for strangulation as a

class D felony.

       Affirmed.

ROBB, J., and BARNES, J., concur.




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