MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Feb 04 2019, 10:03 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Sean C. Mullins                                         Curtis T. Hill, Jr.
Appellate Public Defender                               Attorney General of Indiana
Crown Point, Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Allen Michael Orange,                                   February 4, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1798
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        45G04-1802-MR-1



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019                 Page 1 of 12
                               Case Summary and Issues
[1]   Following a jury trial, Allen Orange was convicted of aggravated battery, a

      Level 3 felony, and battery by means of a deadly weapon and battery resulting

      in serious bodily injury, both Level 5 felonies. Orange now appeals his

      convictions, presenting two issues for our review which we restate as: (1)

      whether the State sufficiently rebutted his claim of self-defense; and (2) whether

      there was sufficient evidence to support his conviction of aggravated battery.

      Concluding the State sufficiently rebutted Orange’s claim of self-defense and

      sufficient evidence supported his conviction of aggravated battery, we affirm.



                            Facts and Procedural History
[2]   In December 2017, Bernard Breese was living at his home with his two adult

      children, Melissa and Kevin, both of whom had developmental disorders

      requiring his care. Breese allowed Orange to move into the residence in

      exchange for help caring for the children and Orange allowed his friend,

      Marchon “A.D.” Moss to stay at the home for several months as well. Joshua

      Trigg rented out the basement of the home.


[3]   On evening of December 13, Breese returned home from a hospital stay and fell

      asleep on the couch in the living room. Later that evening, Moss and Orange

      returned home, smoked synthetic marijuana, and fell asleep in the living room

      with Moss sharing the couch with Breese and Orange sleeping on the floor.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 2 of 12
[4]   Around 2:30 am in the morning of December 14, Melissa, who had been

      sleeping in her bedroom, was awoken by the sound of Moss and Orange

      arguing. Melissa walked into the living room to see Orange punch Moss in the

      face. Melissa testified that Orange then “grabbed a knife” and “stabbed [Moss]

      . . . quite a few times.” Transcript, Volume 2 at 130-31. Orange and Moss

      eventually fell back onto Breese, who until then was still asleep on the couch.

      Breese testified that he woke up and saw Orange on top of Moss “punching

      [Moss] in the head or throat.” Id. at 82. Moss was screaming and crying,

      saying, “Call an ambulance. Call 911.” Id. at 132. Breese eventually realized

      that Orange was wielding a knife and yelled at him, at which point Orange

      “throws the knife and up and takes off.” Id. at 82. Orange threw the knife

      behind the Christmas tree where it was later found by police. Although there is

      some discrepancy between Melissa’s, Breese’s, and Orange’s testimony, Breese

      confirmed that during this time, Orange stated that he was stabbing Moss

      because Moss said he was going to come back and kill everyone.


[5]   According to Orange’s version of events, he had received a telephone call from

      Joshua Justus, a mutual friend of his and Moss’s, and he woke Moss up to

      speak to Justus. Moss became angry, stating that he already spoke with Justus,

      and approached Orange with his fists clenched. Orange punched Moss in the

      face. Moss then pulled an object Orange believed to be a firearm from behind

      his back, placed it to Breese’s head, and threatened to kill everyone in the

      home. Orange retreated to the kitchen where he tripped and caught himself on

      the countertop where he felt a knife which he grabbed to “intimidate” Moss.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 3 of 12
      Id., Vol. 4 at 166. According to Orange, as he turned towards Moss the two

      collided and the knife stabbed Moss in the abdomen. “[A] tussle ensued with

      the two chest to chest, moving back towards the living room, Orange with his

      arms around Moss in an attempt to rid Moss of the perceived firearm,

      apparently stabbing Moss’ back and shoulders in the process.” Brief of the

      Appellant at 7. Orange claims he was able to free the object from Moss’s hand,

      only then realizing it was too light to be a handgun and Moss then ripped the

      knife from Orange’s hand.


[6]   Trigg, who had been asleep in the basement, woke up to Moss entering the

      basement “covered in blood.” Tr., Vol. 2 at 147. Moss stated, “[t]his bit**-a**

      motherf***** just stabbed me.” Id. at 148. Trigg assumed Moss was referring

      to Orange and grabbed his BB gun that looked like a rifle and went upstairs to

      enter the house. As Trigg was running to the front door, the door opened, and

      Orange ran out yelling, “[Moss] said he was going to kill you guys. He said he

      was going to kill you guys. He said he was going to kill you guys.” Id. at 151.

      Trigg followed Orange for “maybe ten steps[,]” before turning back to the house

      to call an ambulance. Id.


[7]   Moss was transported to the emergency room where he was treated by Dr.

      Reuben Rutland. Dr. Rutland observed that Moss had sustained multiple stab

      wounds and was in “critical condition[.]” Tr., Vol. 3 at 61. Moss had been

      stabbed in the neck, chest, and abdomen. The stab wound to Moss’s abdomen

      punctured through his liver and into his lung. Dr. Rutland characterized these

      wounds as “life threatening” and testified that “[w]ithout treatment, [Moss]

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 4 of 12
       would have died.” Id. at 86. After an emergency surgery to inflate Moss’s

       collapsed lung and repair Moss’s liver, Moss was placed in the hospital’s

       intensive care unit (“ICU”).


[8]    After a day in the ICU, Moss was moved to the telemetry floor. Moss’s

       condition had improved to the point where his chest tube could be removed but

       a post-removal x-ray indicated that his lung had re-collapsed “about 10

       percent.” Id. at 63. Moss was treated with oxygen, which normally corrects the

       condition, but Moss’s lung continued to collapse “down to 30 percent.” Id. Dr.

       Rutland informed Moss that the chest tube should be reinserted, but Moss

       refused. Moss died from his injuries before consulting with a thoracic surgeon.


[9]    Dr. Zhuo Wang performed Moss’s autopsy. The autopsy revealed that Moss

       suffered three stab wounds. The first was to the back of Moss’s right arm, 6.5

       inches deep, causing injuries to the skin, soft tissue, and muscle. The second

       was to the back of Moss’s neck and shoulder, 2 inches deep, originating from

       the rear and penetrating forward. The third wound was to Moss’s abdomen,

       7.5 inches deep, injuring his abdominal wall, right lower lung, and creating a

       “through-and-through injury of the liver.” Id. at 99. Dr. Wang testified that the

       cause of death was “multiple stab wounds” and emphasized that the wound to

       Moss’s abdomen was “vital.” Id. at 115.


[10]   On December 19, 2017, the State charged Orange with attempted murder, a

       Level 1 felony; aggravated battery, a Level 3 felony; and battery by means of a

       deadly weapon and battery resulting in serious bodily injury, both Level 5


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 5 of 12
       felonies. On February 1, 2018, the State amended the information to add a

       single count of murder.


[11]   A jury trial was conducted between April 30 and May 2, 2018, where Orange

       presented a claim of self-defense. Specifically, Orange argued that he believed

       Moss was armed with a handgun and intended to kill the occupants of the

       house. Orange described a series of events in which the initial stab wound to

       Moss’s abdomen was the result of an accidental collision, and the stab wounds

       to Moss’s back were the result of his efforts to rid Moss of the perceived

       handgun. The jury ultimately rejected Orange’s claim of self-defense, finding

       Orange guilty of aggravated battery, battery by means of a deadly weapon, and

       battery resulting in serious bodily injury, while finding Orange not guilty of

       murder and attempted murder. The trial court merged the convictions of

       battery by means of a deadly weapon and battery resulting in serious bodily

       injury with the conviction of aggravated battery and entered judgment of

       conviction only on the aggravated battery count.


[12]   On June 21, 2018, the trial court sentenced Orange to thirteen years: nine years

       to be served in the Indiana Department of Correction, two years to be served in

       community corrections, and two years to be served on probation. Orange now

       appeals. Additional facts will be provided as necessary.



                                 Discussion and Decision


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 6 of 12
                                             I. Self-Defense
                                       A. Standard of Review
[13]   When challenging the sufficiency of evidence regarding the State’s rebuttal to a

       claim of self-defense, the standard is identical to that of any other claim of

       insufficiency. Richardson v. State, 79 N.E.3d 958, 964 (Ind. Ct. App. 2017),

       trans. denied. We consider only the probative evidence and reasonable

       inferences supporting the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007). We do not assess the credibility of witnesses or reweigh the evidence.

       Id.


             B. The State Sufficiently Rebutted Orange’s Claim of Self-
                                       Defense
[14]   Indiana Code section 35-41-3-2(c) provides:


               A person is justified in using reasonable force against any other
               person to protect the person or a third person from what the
               person reasonably believes to be the imminent use of unlawful
               force.


[15]   In order to prevail on a claim of self-defense, Orange was required to show that

       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. Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). Once

       Orange established these three necessary elements, the State bore the burden of

       refuting at least one of the three elements beyond a reasonable doubt. Id. “The

       State may meet this burden by rebutting the defense directly, by affirmatively
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 7 of 12
       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). “A claim of self-defense will also fail if the person uses more force than

       is reasonably necessary under the circumstances.” Sudberry v. State, 982 N.E.2d

       475, 481 (Ind. Ct. App. 2013) (quotations and citations omitted). Whether the

       State has met its burden is a question of fact for the jury. Miller, 720 N.E.2d at

       700.


[16]   On appeal, the parties primarily diverge regarding whether Orange had a

       reasonable fear for his life. A reasonable belief, as used in the Indiana self-

       defense statute, requires a defendant to have a subjective belief that force was

       necessary to prevent death or serious bodily injury and that subjective belief

       must be objectively reasonable under the circumstances. Littler v. State, 871

       N.E.2d 276, 279 (Ind. 2007).


[17]   Orange argues his reasonable belief was based upon the fact that after his initial

       punch, Moss pulled an object from behind his back, put it to Bernard Breese’s

       head, and threatened to kill everyone in the room. According to Orange, given

       the dim lighting, Moss’s gestures, demeanor, and alleged history with firearms,

       it was reasonable for him to believe the object was a handgun and Orange

       therefore retreated to the kitchen and armed himself with a knife. Orange’s

       argument then describes a series of events in which he makes every effort to

       diffuse the situation, the initial stab wound to Moss’s abdomen was the result of

       an accidental collision in the kitchen, and the stab wounds to Moss’s back were

       the result of his efforts to rid Moss of the perceived handgun.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 8 of 12
[18]   The evidence most favorable to the verdict, however, shows that Orange was

       the only combatant to brandish a weapon—Moss did not have a handgun. And

       the series of events that Orange describes is largely based upon his own

       testimony, which the jury was at liberty to disregard. See Harris v. State, 269

       Ind. 672, 674-75, 382 N.E.2d 913, 915 (1978) (noting that although “a jury is to

       look to the defendant’s viewpoint considering facts relevant to self-defense,” the

       jury “is not required to believe the defendant’s evidence.”). No blood was

       found in the kitchen where the “accidental” stabbing was alleged to have taken

       place and Orange was unable to identify the object which he had perceived to

       be a handgun.


[19]   Moreover, even if Orange’s version of events is to be believed, the fight ended

       with Orange standing over Moss repeatedly attempting to stab him. This

       evidence supports a conclusion that Orange was a mutual combatant and did

       not withdraw from the fight even after, by his own admission, he had disarmed

       Moss of a perceived handgun. Alternatively, the evidence supports a

       conclusion that Orange escalated the fight and used more force than was

       reasonably necessary. See Sudberry, 982 N.E.2d at 481-82. In either event, we

       view Orange’s argument as nothing more than an invitation to reweigh the

       evidence and infringe upon the province of the jury, which we will not do. We

       therefore conclude the State presented sufficient evidence to rebut Orange’s

       claim of self-defense.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 9 of 12
                               II. Sufficiency of the Evidence
                                         A. Standard of Review
[20]   Next, Orange claims there was insufficient evidence to support his conviction of

       aggravated battery, a Level 3 felony. When reviewing the sufficiency of the

       evidence, we neither reweigh the evidence nor judge the credibility of the

       witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). Rather, a

       conviction will be affirmed if any reasonable juror could find a defendant guilty

       beyond a reasonable doubt when taking all the facts and inferences in favor of

       the conviction. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).


               B. Sufficient Evidence Supported Orange’s Conviction
[21]   Indiana Code section 35-42-2-1.5 provides, “A person who knowingly or

       intentionally inflicts injury on a person that creates a substantial risk of death . .

       . commits aggravated battery, a Level 3 felony.” Orange argues that “none of

       the injuries inflicted by Orange created a substantial risk of death to Moss, and

       the State failed to prove [that] element beyond a reasonable doubt.” Br. of the

       Appellant at 17. When considering whether a victim’s injuries created a

       substantial risk of death, we “look to the observable facts, including the nature

       and location of the injury, and the treatment provided.” Oeth v. State, 775

       N.E.2d 696, 702 (Ind. Ct. App. 2002), trans. denied. Medical expert testimony is

       not required to prove that a victim’s injuries created a substantial risk of death.

       Wilcher v. State, 771 N.E.2d 113, 117 (Ind. Ct. App. 2002), trans. denied. And a




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 10 of 12
       conviction may be based entirely on circumstantial evidence. Franklin v. State,

       715 N.E.2d 1237, 1241 (Ind. 1999).


[22]   Here, the State presented evidence that Orange stabbed Moss three times: two

       wounds penetrated the skin, soft tissue, and underlying muscle, while the third

       penetrated 7.5 inches deep, injuring his abdominal wall, liver, and right lower

       lung. Moss arrived at the hospital in “critical condition.” Tr., Vol. 3 at 61.

       Moss’s injuries required emergency surgery to inflate his collapsed lung and

       repair his liver before necessitating a stay in the hospital’s ICU. On this

       evidence a jury could conclude, even without expert medical testimony, that

       Moss’s injuries posed a substantial risk of death. See Wilcher, 771 N.E.2d at

       117; Young v. State, 725 N.E.2d 78, 82 (Ind. 2000) (holding whether a bodily

       injury is “serious” is a “a matter of degree and therefore a question reserved for

       the factfinder”).


[23]   Despite this, Orange argues Moss was not at risk of death once he obtained

       medical care and that it was Moss’s refusal to have the chest tube replaced

       which ultimately caused his death. Although we acknowledge Dr. Rutland

       opined Moss was at no risk of death once he received medical treatment, he

       testified that prior to such treatment, Moss’s wounds were “life threatening”

       and “[w]ithout treatment, [Moss] would have died.” Tr., Vol. 3 at 86. Dr.

       Wang further testified that Moss’s cause of death was “multiple stab wounds”

       and emphasized that the wound to Moss’s abdomen was “vital.” Id. at 115.

       This too was sufficient evidence for the jury to conclude Moss’s injuries posed a

       substantial risk of death.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 11 of 12
[24]   Orange next argues the State was required to “prove beyond a reasonable doubt

       that Orange acted either knowingly or intentionally when inflicting the injury to

       Moss’[s] torso.” Br. of the Appellant at 18. Specifically, Orange alleges that

       although Melissa and Breese witnessed Orange intentionally striking Moss,

       neither witnessed the potentially fatal strike to Moss’s torso. Therefore, the

       only explanation of the injury was Orange’s testimony that the strike was

       accidental. As we explained above however, the jury was at liberty to disregard

       Orange’s testimony, see Harris, 269 Ind. at 674-75, 382 N.E.2d at 915, and a

       conviction may be based entirely on circumstantial evidence, Franklin, 715

       N.E.2d at 1241. Here, we conclude the multiple, deep stab wounds combined

       with Breese and Melissa’s testimony regarding their infliction was sufficient

       evidence to support Orange’s conviction of aggravated battery.



                                              Conclusion
[25]   For the reasons set forth above, we conclude the State sufficiently rebutted

       Orange’s claim of self-defense and sufficient evidence supported his conviction

       of aggravated battery. Accordingly, we affirm.


[26]   Affirmed.


       Riley, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1798 | February 4, 2019   Page 12 of 12
