MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Dec 13 2017, 6:49 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy J. Burns                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana
                                                        Tyler G. Banks
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Mark Carter,                                            December 13, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1707-CR-1543
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Patrick Murphy,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        49G16-1612-F6-46917



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017        Page 1 of 6
[1]   Mark Carter appeals his convictions for Class A Misdemeanor Battery 1 and

      Class A Misdemeanor Domestic Battery,2 arguing that the evidence is

      insufficient. Finding the evidence sufficient, we affirm.


                                                    Facts
[2]   In November 2016, Carter and Kimberly Brown had been dating on and off for

      approximately two years and had lived together in Indianapolis for four or five

      months. Brown had a key to the house and had mail delivered to that address.

      Although she did not pay rent, she engaged in drug deals for Carter, both

      delivering drugs and collecting payment on his behalf.


[3]   On November 22, 2016, Brown returned to the house after delivering drugs for

      Carter. She found Carter in the bedroom; he became angry because Brown

      “was a little short on the drugs[.]” Tr. p. 20. Carter got “very, very upset” and

      insisted that Brown either sit on the bed or in a nearby chair. Id. at 13. Brown

      got onto the bed and made a comment to Carter, angering him and leading to

      him punching her in the back of her head, causing pain and swelling. He then

      began choking her and threatened to choke her with a belt and to hit her with a

      hammer. Brown attempted to leave the house but Carter tried to keep her

      there, pulling her back inside the house as she tried to exit.




      1
          Ind. Code § 35-42-2-1.
      2
          I.C. § 35-42-2-1.3.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017   Page 2 of 6
[4]   Around this time, Indianapolis Police Officer Marlon Minor was dispatched to

      the domestic disturbance. When he arrived, he saw Carter and Brown

      screaming at each other and observed red marks on Brown’s chest, a scratch on

      Brown’s right arm, and a bruise on the back of one of her arms; he also noticed

      that her hand was bleeding. Photographs of Brown show blood on her lip and

      hand, scratches on her neck and hand, and a bruise on her arm. Officer Minor

      observed no visible injuries to Carter.


[5]   On December 7, 2016, the State charged Carter with Level 6 felony

      intimidation, Class A misdemeanor battery, and Class A misdemeanor

      domestic battery. At Carter’s bench trial, which took place on March 20 and

      April 10, 2017, Carter claimed that he acted in self-defense during the

      altercation. At the close of the trial, the trial court found him not guilty of

      intimidation and guilty of battery and domestic battery. On April 10, 2017, the

      trial court sentenced Carter to concurrent one-year terms for each conviction,

      fully suspended to probation. Carter now appeals.


                                   Discussion and Decision
[6]   Carter argues that the evidence does not support his convictions for Class A

      misdemeanor battery or Class A misdemeanor domestic battery. When

      reviewing a claim of insufficient evidence, we will consider only the evidence

      and reasonable inferences that support the conviction. Gray v. State, 957 N.E.2d

      171, 174 (Ind. 2011). We will affirm if, based on the evidence and inferences, a




      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017   Page 3 of 6
      reasonable jury could have found the defendant guilty beyond a reasonable

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


[7]   To convict Carter of Class A misdemeanor battery, the State was required to

      prove beyond a reasonable doubt that he touched Brown in a rude, insolent, or

      angry manner, resulting in bodily injury. I.C. § 35-42-2-1.


[8]   Carter’s sole argument with respect to his battery conviction is that the State

      failed to rebut his claim of self-defense. To raise a successful self-defense claim,

      a defendant must 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 or had a reasonable

      belief that force is necessary to prevent or terminate an unlawful entry of or

      attack on his dwelling, curtilage, or occupied motor vehicle. Ind. Code § 35-41-

      3-2(d); Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). 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 a claim of self-defense, we will reverse only if no

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

      reasonable doubt. Id. at 800-01.


[9]   Carter directs our attention to his testimony, in which he stated that Brown did

      not live in his home, that he wanted her to leave his home but she refused, and

      that she attacked him first. Brown, however, testified that Carter was the initial

      aggressor, punching her in the head and giving her “a big ole’ knot on the back


      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017   Page 4 of 6
       of [her] head . . .” Tr. p. 13-14, 24. Carter then choked Brown and tried to

       prevent her from leaving the house. Brown’s testimony was corroborated by

       Officer Minor’s observations at the scene as well as photographs of the injuries

       she sustained. This evidence is sufficient both to rebut Carter’s claim of self-

       defense and to support the Class A misdemeanor battery conviction. See, e.g.,

       Tharpe v. State, 955 N.E.2d 836, 844-45 (Ind. Ct. App. 2011) (holding that an

       initial aggressor cannot claim self-defense unless he withdrew from the

       encounter and communicated his intent to do so to the other person). Carter’s

       claims to the contrary are simply a request that we reweigh the evidence, which

       we decline to do.


[10]   To convict Carter of Class A misdemeanor domestic battery, the State was

       required to prove that Brown was his family or household member and that he

       touched her in a rude, insolent, or angry manner. I.C. § 35-42-2-1.3. Carter

       argues that the evidence does not establish that Brown is his family or

       household member. “Family or household member” includes people who are

       “dating or [have] dated” and people who are or were “engaged in a sexual

       relationship[.]” Ind. Code § 35-31.5-2-128(a). Carter himself testified that he

       and Brown were engaged in a sexual relationship. Tr. p. 56; see also Appellant’s

       Br. p. 11 (noting that Carter’s relationship with Brown “was one of drugs and

       sex”). Additionally, Brown testified that they had been dating for two years

       and were engaged in a sexual relationship. Tr. p. 12-13, 21. This evidence is

       sufficient to support the trial court’s conclusion that Brown is Carter’s family or




       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017   Page 5 of 6
       household member and, consequently, to support Carter’s Class A

       misdemeanor domestic battery conviction.


[11]   The judgment of the trial court is affirmed.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017   Page 6 of 6
