      MEMORANDUM DECISION
                                                                          Dec 14 2015, 8:30 am
      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 establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Patricia Caress McMath                                   Gregory F. Zoeller
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana
                                                               Larry D. Allen
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Christopher Smith,                                       December 14, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1504-CR-167
              v.                                               Appeal from the Marion Superior
                                                               Court.
      State of Indiana,                                        The Honorable David Hooper,
                                                               Magistrate.
      Appellee-Plaintiff.                                      Cause No. 49F08-1406-CM-27687




      Darden, Senior Judge


                                       Statement of the Case
[1]   Christopher Smith appeals his conviction of battery resulting in bodily injury, a

      Class A misdemeanor. Ind. Code § 35-42-2-1(a)(1)(A) (2012). We affirm.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-167 | December 14, 2015    Page 1 of 7
                                                    Issue
[2]   Smith raises one issue, which we restate as: whether the State submitted

      sufficient evidence to disprove beyond a reasonable doubt Smith’s claim of self-

      defense.


                               Facts and Procedural History
[3]   Andy Watkins lived with his sister and Smith in Indianapolis. On May 17,

      2014, Watkins came home from work, and Smith, along with Max Smith

      (Smith’s cousin), Dexter McCann, and William Perry were outside. Watkins

      went into the house, and Smith, Max, and McCann followed him. Watkins

      owed McCann some money and went to his room with McCann to retrieve it.


[4]   Watkins paid McCann. At that point, Max entered Watkins’ room, cursed at

      Watkins, and argued with him. Smith came into the room to intervene, but he

      also argued with Watkins. Smith accused Watkins of not paying his fair share

      of the bills. After further harsh words, Watkins told both Smith and Max to

      leave his room. Watkins slammed the bedroom door in their faces.


[5]   Later on, Watkins left his room and walked toward the front door, where Smith

      was standing nearby. Smith continued to curse Watkins and said Watkins “was

      not going to do anything.” Tr. p. 8. As Watkins approached the front door, he

      remembered he left his keys in his room. When Watkins turned around to get

      his keys, Smith struck him from behind, in the back of the head.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-167 | December 14, 2015   Page 2 of 7
[6]   Watkins turned around and confronted Smith. As the two men fought, they

      struggled into an adjoining room. Max joined them and repeatedly struck

      Watkins. When Watkins turned to Max, Smith grabbed him from behind.

      Watkins backed Smith into a window and pushed his head through the glass.

      Then, as Watkins tried to leave the house, he fell to the floor and Smith got on

      top of him. Watkins felt pain to his head and noticed that he had blood on his

      shoulder. Someone pulled Smith off of Watkins, and at that point, Watkins

      saw that Smith was wearing what Watkins described as brass knuckles on his

      hand. Smith admitted at trial, “I had no reason to be scared of [Watkins.]” Id.

      at 44. Smith left with Max, McCann, and Perry.


[7]   The police were called. Watkins later sought medical attention and needed five

      stitches on his upper lip. In addition, Smith’s sudden attack, from behind,

      resulted in a bloody abrasion on the back of Watkins’ head, and Watkins

      developed migraines.


[8]   The State charged Smith with battery resulting in bodily injury. The case was

      tried to the bench. At the end of the trial, the court stated:

              I reviewed some case law on self-defense, um, you can’t use
              more force that [sic] reasonable under the circumstances or the
              right is extinguished. State’s Exhibit Five is very compelling to
              the Court. It’s obvious there was a fight and when you look at
              some of these pictures I can see hitting back and that being okay.
              I do note that the defendant was wearing a ring that day. There’s
              an allegation of brass knuckles. Whether it was brass knuckles or
              a right [sic] that inflicted the wound on State’s Exhibit—this head
              wound with blood, um, I find that that was more force that [sic]



      Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-167 | December 14, 2015   Page 3 of 7
                 reasonably necessary when you look at what happened in this
                 particular fight. So I am entering a judgment of guilty.

[9]    Id. at 60. The court imposed a one-year suspended sentence, and this appeal

       followed.


                                    Discussion and Decision
[10]   Smith does not dispute that he battered Watkins and inflicted bodily injury on

       him. Instead, he argues that the State failed to rebut his claim that he battered

       Watkins in self-defense.


[11]   “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) (2013). “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

       person is not justified in using force if “the person provokes unlawful action by

       another person with intent to cause bodily injury to the other person.” Ind.

       Code § 35-41-3-2(g).


[12]   To prevail on a claim of self-defense under Indiana Code section 35-41-3-2, a

       defendant must have: (1) acted without fault; (2) been in a place where he or

       she had a right to be; and (3) been in reasonable fear or apprehension of bodily

       harm. Weedman v. State, 21 N.E.3d 873, 891-92 (Ind. Ct. App. 2014), trans.

       denied.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-167 | December 14, 2015   Page 4 of 7
[13]   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

       v. State, 770 N.E.2d 799, 800 (Ind. 2002). The State may meet this burden by

       rebutting the defense directly, by affirmatively showing the defendant did not

       act in self-defense, or by simply relying upon the sufficiency of its evidence in

       chief. Cole v. State, 28 N.E.3d 1126, 1137 (Ind. Ct. App. 2015).


[14]   On appeal, 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 for any sufficiency of

       the evidence claim. Bryant v. State, 984 N.E.2d 240, 250 (Ind. Ct. App. 2013),

       trans. denied. We do not reweigh the evidence or judge the credibility of the

       witnesses. Id. We consider only the probative evidence and reasonable

       inferences drawn from the evidence that support the verdict. Id. If the

       defendant is convicted despite a claim of self-defense, this Court will reverse

       only if no reasonable person could say that self-defense was negated by the

       State beyond a reasonable doubt. Wilson, 770 N.E.2d at 800-01.


[15]   The evidence most favorable to the judgment shows that Smith was the initial

       aggressor because, from behind, he struck first by hitting Watkins in the back of

       the head. Smith argues that the trial court concluded as a matter of law that

       Smith was not the aggressor because the court considered whether Smith used

       excessive force during the struggle. We do not agree with Smith’s

       interpretation of the court’s statement. The court focused on State’s Exhibit 5,

       which showed the bloody abrasion on the back of Watkins’ head, and stated

       that “hitting back,” apparently by Watkins, was “okay.” Tr. p. 60. This was a

       Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-167 | December 14, 2015   Page 5 of 7
       bench trial, and we presume the judge knows the law and considers the

       evidence properly before the court in reaching a decision. Hinesley v. State, 999

       N.E.2d 975, 987 (Ind. Ct. App. 2013), trans. denied.


[16]   Smith also claims, “It is not clear who swung and hit first.” Appellant’s Br. p.

       6. Watkins unequivocally testified that Smith struck first, hitting him from

       behind in the back of the head. Smith’s claim is a request to reweigh the

       evidence, which our standard of review forbids. The State demonstrated that

       Smith, from behind, struck first and, having provoked the fight, was not

       justified in using force. See Cole, 28 N.E.3d at 1137 (State disproved self-defense

       beyond a reasonable doubt because defendant instigated the fight and willingly

       participated).


[17]   Alternatively, the State’s evidence further disproved Smith’s claim of self-

       defense because Smith conceded on cross-examination that he “had no reason

       to be scared of [Watkins.]” Tr. p. 44. Furthermore, his cousin, Max was

       present, and they outnumbered Watkins. Before attacking Watkins, Smith said

       that Watkins “was not going to do anything.” Tr. p. 8. A finder of fact could

       reasonably conclude beyond a reasonable doubt that Smith did not have any

       fear or apprehension of bodily harm. See Cole, 28 N.E.3d at 1137 (thus, the

       State further met its burden of rebutting self-defense because defendant

       admitted that he was not afraid of the victim). The State provided sufficient

       evidence to rebut Smith’s claim of self-defense beyond a reasonable doubt.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-167 | December 14, 2015   Page 6 of 7
                                                Conclusion
[18]   For the reasons stated above, we affirm the judgment of the trial court.


[19]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1504-CR-167 | December 14, 2015   Page 7 of 7
