MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                   May 24 2016, 8:53 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Jeffrey E. Kimmell                                      Gregory F. Zoeller
South Bend, Indiana                                     Attorney General of Indiana

                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana




                                          IN THE
    COURT OF APPEALS OF INDIANA

Jason Richmond,                                         May 24, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1511-CR-1901
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Jeffrey Sanford,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        71D03-1404-CM-1626



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1901 | May 24, 2016         Page 1 of 6
[1]   Following a bench trial, Jason Richmond was convicted of class A

      misdemeanor Domestic Battery. Richmond now appeals, contending that the

      State presented insufficient evidence to rebut his claim of self-defense.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On the evening of April 27, 2014, Richmond and his wife, Andrea, were lying

      in bed together when Richmond said that he planned to file for divorce the next

      day. Andrea got up and left the room briefly before returning and telling

      Richmond that she had been in bed first and that he should sleep on the couch.

      Richmond refused and called Andrea a number of crude names. In response to

      one of these insults, Andrea slapped Richmond and told him never to call her

      that again. Richmond repeated the slur, and Andrea slapped him again.

      Richmond then grabbed her wrist and climbed on top of her, pinning her to the

      bed while continuing to call her names. To free herself, Andrea bit Richmond

      on the chest.


[4]   Once she got away from Richmond, Andrea ran to their infant son’s bedroom

      to collect the child and leave. Richmond pursued her and shoved her into a

      chair in the baby’s room. Andrea then grabbed Richmond’s testicles and

      squeezed, which held him off until he hit her in the face. Andrea then got up to

      leave the room, Richmond pushed her down and forced her arms up to her

      throat and choked her with her own arms. Andrea told him that she could not

      breathe and that he needed to stop, and he said he did not care. Richmond told

      Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1901 | May 24, 2016   Page 2 of 6
      Andrea to call 911, and she responded that she was trying. She was able to get

      an arm free and dial 911, and as soon as she did so, Richmond ripped the

      phone from her hand and spoke to the operator as if he was the one who had

      placed the call.


[5]   Officer Joel Cyrier of the Mishawaka Police Department was dispatched to the

      scene. When he arrived, Andrea was outside of the house with her infant son,

      crying and pointing at her facial injuries. Andrea was visibly upset and

      shaking, and Cyrier noted a “cut with blood” near her eye, “visible marks

      across her neck,” and scratch marks in various places on her body. Transcript at

      16. Richmond had no visible injuries and appeared “very calm, very collected,”

      and did not complain of any pain. Id. at 17. Richmond told Officer Cyrier that

      “nothing she can do can physically harm me.” Id. When Officer Cyrier asked

      Richmond about Andrea’s cell phone, Richmond responded that he had it and

      pulled it out of his pocket.


[6]   As a result of these events, Andrea and Richmond were both arrested.

      Richmond was subsequently charged with class A misdemeanor domestic

      battery. Following a bench trial at which he argued that he had acted in self-

      defense, Richmond was found guilty as charged. Richmond now appeals.


                                                  Discussion


[7]   On appeal, Richmond argues that the State presented insufficient evidence to

      rebut his self-defense claim. The standard for reviewing a challenge to the

      sufficiency of evidence to rebut a claim of self-defense is the same standard used

      Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1901 | May 24, 2016   Page 3 of 6
      for any claim of insufficient evidence. Wallace v. State, 725 N.E.2d 837, 840

      (Ind. 2000). 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, the judgment will not be disturbed. Id. “A valid

      claim of self-defense is legal justification for an otherwise criminal act.” Id.


[8]   To prevail on his self-defense claim, Richmond must show that he: (1) was in a

      place where he had a right to be; (2) acted without fault; and (3) was in

      reasonable fear or apprehension of bodily harm. Henson v. State, 786 N.E.2d

      274, 277 (Ind. 2003); see also Ind. Code. § 35-41-3-2. A person who provokes,

      instigates, or participates willingly in the violence does not act without fault for

      the purposes of self-defense. Shoultz v. State, 995 N.E.2d 647, 660 (Ind. Ct.

      App. 2013). Additionally, the degree of force used must be proportionate to the

      requirements of the situation, and a claim of self-defense will fail where a

      person has used more force than is reasonably necessary to repel an attack.

      Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied.


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

      bears the burden of negating at least one of the necessary elements. Wilson, 770

      N.E.2d at 800. The State may meet its burden by offering evidence directly

      rebutting the defense, by affirmatively showing that the defendant did not act in

      self-defense, or by relying upon the sufficiency of the evidence from its case-in-

      chief. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). If a defendant is

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



      Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1901 | May 24, 2016   Page 4 of 6
       person could say that self-defense was negated beyond a reasonable doubt.

       Wilson, 770 N.E.2d at 801.


[10]   Richmond’s arguments on appeal are merely requests to reweigh the evidence,

       judge the credibility of witnesses, and consider evidence unfavorable to the

       verdict, which we will not do on appeal. At Richmond’s trial, the State

       conceded that Andrea was the initial aggressor because she slapped Richmond

       in the face when he called her names. After this initial confrontation, however,

       Andrea left the room to collect their infant son and leave. 1 Richmond pursued

       her into the baby’s room and shoved her into a chair and, when she responded

       by squeezing his testicles, hit her in the face. When Andrea attempted to leave

       once more, Richmond pushed her down and choked her. As our Supreme

       Court has observed, “[a] person claiming self-defense cannot reasonably base a

       belief that the threat is imminent on the actions of another who has withdrawn

       from the confrontation.” Henson, 786 N.E.2d at 278. Moreover, Richmond

       told Officer Cyrier that “nothing [Andrea] can do can physically harm [him].”

       Transcript at 17. For all of these reasons, it was reasonable for the factfinder to

       find that Richmond was not in reasonable fear of bodily harm and therefore

       reject his self-defense claim.




       1
         Richmond’s argument that he was trying to prevent Andrea from leaving with the baby because she was
       intoxicated is based solely on his own testimony, which the fact finder was in no way obligated to credit.
       Officer Cyrier testified that no one at the scene appeared to be intoxicated and that neither Andrea nor
       Richmond smelled like alcoholic beverages.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1901 | May 24, 2016                Page 5 of 6
[11]   Judgment affirmed.


[12]   Bailey, J. and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1511-CR-1901 | May 24, 2016   Page 6 of 6
