MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               May 30 2017, 8:58 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
Barbara J. Simmons                                      Curtis T. Hill, Jr.
Oldenburg, Indiana                                      Attorney General of Indiana

                                                        Henry A. Flores, Jr.
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Derrick Townes,                                         May 30, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1611-CR-2651
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Peggy Hart,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G10-1606-CM-21024



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2651 | May 30, 2017              Page 1 of 8
[1]   Derrick Townes appeals his conviction for battery as a class B misdemeanor.

      He raises one issue which we revise and restate as whether the evidence is

      sufficient to sustain his conviction and negate his claim of self-defense. We

      affirm.


                                      Facts and Procedural History

[2]   Townes rented a house in Indianapolis from Martin Tomey, who lived across

      the street. On May 31, 2016, Tomey was at Townes’s residence addressing

      issues including ants in the mailbox and mowing the grass. Townes arrived

      home, pulled into his driveway, and went inside the house. Tomey walked up

      to the house, knocked on the door, and Townes came outside. Tomey told him

      that he sprayed the mailbox for ants and put the first coat of paint on for the

      numbers on the mailbox. Tomey said: “I fixed the mail box and sprayed the

      mailbox but it is not my obligation because it is federal and I don’t have any

      control over their ants being in the mailbox.” Transcript at 10. Townes

      became irritated, and his girlfriend told him to go in the house. Townes asked

      Tomey to leave his property. Thirty or forty-five seconds later, Townes called

      Tomey “the ‘N’ word” and then shoved him or punched him in the chest, and

      Tomey went down three steps. Id. at 25. Tomey “turned and went for the

      fence, when [Townes] shoved [him] a second time at the fence,” which

      consisted of “[j]ust a push from the back.” Id. at 10, 20. Townes said he was

      calling the police, and Tomey “walked away and went over to this side to finish

      up [his] work.” Id. at 11.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2651 | May 30, 2017   Page 2 of 8
[3]   Indianapolis Metropolitan Police Officer Donald Meier responded to the scene

      and first spoke with Townes, who was upset. Townes told him that Tomey had

      been coming over to the property at different times and harassing him over

      “different things like rent.” Id. at 28. Townes told Officer Meier that he and

      Tomey had a heated argument over the repairs. Townes also stated: “I did lose

      my cool, and I pushed him to get him off my property.” Id. at 28. Officer

      Meier then spoke with Tomey who told him that “he turned to walk away and

      he got pushed.” Id. at 29.


[4]   On June 1, 2016, the State charged Townes with battery resulting in bodily

      injury as a class A misdemeanor. On November 7, 2016, the court held a bench

      trial. Tomey and Officer Meier testified to the foregoing. When asked what

      kind of motion it was when Townes put his hand on him, Tomey answered:

              Uh, it was – it was quick because it was coming at – as he was
              coming towards me, I was heading backwards off the step
              because I was kind of like on one (1) step and the second step.
              And, I, uh, I just don’t remember. I didn’t initiate this. He is the
              one (1) that called the police I did not, you know.


      Id. at 20. When asked if either of the times Townes touched him hurt, Tomey

      answered, “No not really.” Id.


[5]   Townes testified that he received a piece of mail indicating that his mail was

      stopped due to no numbers. According to his testimony, he went and spoke

      with Tomey’s wife who belligerently told him she would take care of it.

      Townes left and returned home to see spray paint of “6-6-0-0” on his mailbox


      Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2651 | May 30, 2017   Page 3 of 8
      and “it is one (1) of the worst spray paints you could ever see. Which literally

      sent me—it set me off.” Id. at 32. He testified that he was packing his things

      when Tomey came to his door. He testified: “Yes, I am a little frustrated but I

      am not fixing to automatically just blow up.” Id. at 33. Townes asked Tomey

      to leave, and Tomey left but returned within two minutes. After further

      conversation, which included Townes calling Tomey “the ‘N’ word,” Townes

      asked Tomey again to leave his property. Id. at 34. Townes told Tomey that he

      used “the ‘N’ word . . . based off of ignorance not race.” Id. at 35. Tomey then

      ran up Townes’s porch and “gets up in” Townes’s face and says “What are you

      going to do, hit me?” Id. According to Townes, Tomey also stated: “What you

      going to do about it? This is my property?” Id. Townes then testified: “That is

      when I push him, yes I push him. Push him off and tell him to leave.” Id.


[6]   On cross-examination, when asked why he did not call the police instead of

      shoving Tomey, Townes answered:

              Because, . . . he crossed personal space. And, he was already
              touching me physically. He [sic] stomach was on my stomach,
              and he was in my face like. He was spitting kind of like – I could
              literally feel the spit coming out as he is telling me to hit him with
              this animosity in his system.


      Id. at 36. Townes also testified that he touched Tomey a second time because

      he had asked Tomey to leave his property and he refused, but that he did not

      push Tomey a second time. The court found Townes guilty of the lesser

      included offense of battery as a class B misdemeanor. The court stated in part:


      Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2651 | May 30, 2017   Page 4 of 8
              Just for the record, I do find that you touched him in a rude,
              insolent, or angry manner, and that it was not necessarily both
              times in self-defense. Okay. I think you got over heated and that
              is not proper. We can’t touch people, okay. I don’t – I am not
              saying that you wouldn’t have a right to be frustrated. I am sure
              you were frustrated. I am not saying that you didn’t have a right
              to, its [sic] just that we can’t touch people.


      Id. at 52. The court sentenced Townes to 180 days with 176 days suspended.


                                                  Discussion

[7]   The issue is whether the evidence is sufficient to support Townes’s conviction

      for battery and negate his claim of self-defense. Townes argues that the

      evidence was insufficient to support his conviction. He asserts that he was

      afraid and was defending himself from what he believed was an attack on his

      person. He contends that he pushed Tomey in an attempt to keep Tomey from

      hitting him and that his actions were justified based on self-defense.


[8]   The State argues that either instance of pushing was sufficient to sustain

      Townes’s conviction for battery. The State asserts that Townes cannot claim he

      did not provoke, instigate, or participate willingly in the violence as Townes

      initiated physical contact, called Tomey a racial slur, and pushed him again

      after Tomey retreated.


[9]   Ind. Code § 35-42-2-1 governs the offense of battery and, at the time of the

      offense, provided that “a person who knowingly or intentionally . . . touches

      another person in a rude, insolent, or angry manner . . . commits battery, a



      Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2651 | May 30, 2017   Page 5 of 8
       Class B misdemeanor.”1 “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.” Ind. Code § 35-

       41-3-2(c).2 “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.” Id. 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). When a person uses more force than is reasonably necessary under

       the circumstances, the right of self-defense is extinguished. Id. at 731.


[10]   When a claim of self-defense is raised and finds support in the evidence, the

       State has the burden of negating at least one of the necessary elements. Wilson,

       770 N.E.2d at 800. If a defendant is convicted despite his claim of self-defense,




       1
           Subsequently amended by Pub. L. No. 65-2016, § 33 (eff. July 1, 2016).
       2
           Ind. Code § 35-41-3-2(d) 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 or terminate the other person’s unlawful entry of or attack on
                  the person’s dwelling, curtilage, or occupied motor vehicle.

       Townes does not cite to or develop an argument with respect to subsection (d).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2651 | May 30, 2017                     Page 6 of 8
       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 may claim self-defense. Id. at 801; see Ind. Code § 35-41-3-2(g)

       (providing “a person is not justified in using force if . . . the person 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”). 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. Wilson, 770 N.E.2d at 801. 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.


[11]   The record reveals that Tomey testified that Townes became irritated, called

       him “the ‘N’ word” and then shoved him or punched him in the chest.

       Transcript at 25. Tomey testified that he “turned and went for the fence, when

       [Townes] shoved [him] a second time at the fence,” which consisted of “[j]ust a

       push from the back.” Id. at 10, 20. Officer Meier testified that Townes stated:

       “I did lose my cool, and I pushed him to get him off my property.” Id. at 28.

       Officer Meier also testified that Tomey told him that “he turned to walk away

       and he got pushed.” Id. at 29.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2651 | May 30, 2017   Page 7 of 8
[12]   Based upon the evidence, the court as the trier of fact could infer that Townes

       participated willingly in the violence, that he did not have a reasonable fear of

       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 Townes did not validly act in self-

       defense and that he was guilty of battery as a class B misdemeanor. See

       Rodriguez v. State, 714 N.E.2d 667, 670-671 (Ind. Ct. App. 1999) (noting that the

       defendant’s version of events differed from other testimony, declining to

       reweigh the evidence, and holding that sufficient evidence existed to rebut the

       defendant’s claim of self-defense), trans. denied.


                                                   Conclusion

[13]   For the foregoing reasons, we affirm Townes’s conviction for battery as a class

       B misdemeanor.


[14]   Affirmed.


       May, J. and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1611-CR-2651 | May 30, 2017   Page 8 of 8
