                                                                FILED
                                                           May 05 2017, 5:46 am

                                                                CLERK
                                                            Indiana Supreme Court
                                                               Court of Appeals
                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Larry O. Wilder                                           Curtis T. Hill, Jr.
Jeffersonville, Indiana                                   Attorney General of Indiana

                                                          Matthew B. MacKenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Melvin Wolf,                                              May 5, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          10A01-1607-CR-1560
        v.                                                Appeal from the Clark Circuit
                                                          Court
State of Indiana,                                         The Honorable Vicki Carmichael,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          10C04-1306-FC-164



May, Judge.




Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017                  Page 1 of 11
[1]   Melvin Wolf appeals his conviction of Class A misdemeanor battery. 1 He

      argues the evidence was insufficient to sustain his conviction. 2 We affirm.



                                Facts and Procedural History
[2]   On May 26, 2013, Melvin Wolf was at the Charlestown Speedway in

      Charlestown, Indiana, to watch his adult son, Patrick, participate in a midget

      car race. During the race, another driver, Kevin Blue, collided with Patrick,

      impeding his progress in the race. Wolf observed the collision during the race.

      Blue subsequently beat Patrick in the race.


[3]   After the race finished, Blue drove to the weigh-in area of the racing pit and

      exited his vehicle. Wolf moved from the bleacher area where he had been

      watching and made his way to the racing pits to see Patrick. Wolf had a pit

      pass that allowed him access to the racing pits. On the way to meet his son,

      Wolf saw Blue in the weigh-in area. Wolf approached Blue and called him

      profane names. Blue turned around and told Wolf to “get out of [his] face,”

      (Tr. at 25), but Wolf continued yelling profanities and then punched Blue. A

      scuffle ensued until both parties were pulled apart. Another race driver, Logan

      Arnold, pulled off the race track and exited his vehicle just as Wolf and Blue




      1
          Ind. Code § 35-42-2-1(a)(1)(A) (2012).
      2
       We held oral argument in this case on March 29, 2017, at the University of Southern Indiana in Evansville.
      We thank university staff for their hospitality and commend counsel for their well-prepared advocacy.

      Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017                         Page 2 of 11
      began fighting. Arnold “heard screaming, looked over,” and saw Wolf and

      Blue on the ground. (Id. at 49.) He saw Wolf “on top of [Blue].” (Id.)


[4]   After Wolf and Blue were pulled apart, Wolf went to Patrick’s pit area. A race

      official approached Wolf and informed him he was being suspended for three

      races for hitting someone. Wolf then walked to his car and left the speedway

      with his wife. Arnold followed Wolf to his vehicle, wrote down Wolf’s license

      plate number, and called the police.


[5]   In response to the call, Officer Scott Johns of the Clark County Sheriff’s Office

      arrived at the race track. Johns observed “swelling, redness, and an abrasion”

      to Blue’s nose, and a “softball size knot in the center of [Blue’s] back.” (App.

      Vol. II at 12.) Blue told Officer Johns he was standing in the weigh-in area after

      the race “talking with those around him when he turned around and [an] older

      heavy set man punched him in the nose causing him to fall flat on his back.”

      (Id.) Per Blue’s account in the report, the man “got on top of him and

      continued to punch him until the other people standing around pulled the

      suspect off.” (Id.) Blue indicated he had never seen the man before, but several

      others identified the person who attacked Blue as Wolf.


[6]   Blue went to the Saint Catherine Regional Hospital to receive treatment for his

      injuries. As a result of the altercation, Blue sustained a bruised, bloody nose

      and a lump on his lower back. Blue underwent CT scans of his face and lumbar

      spine, and he received an ice pack and pain medication. Officer Johns met with




      Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017   Page 3 of 11
      Blue at the hospital and photographed Blue’s injuries. On June 7, 2013, the

      State charged Wolf with Class A misdemeanor battery.


[7]   On June 9, 2016, the trial court held a bench trial. The trial court heard

      testimony from Officer Johns, Blue, Arnold, and Wolf. When Blue testified, he

      again stated Wolf punched him in the nose, but denied “fall[ing] flat on [his]

      back,” as written in Officer Johns’ police report. (Tr. at 40.) Wolf’s counsel

      questioned Blue on the inconsistency between Blue’s testimony and Blue’s prior

      statement at an August 6, 2015, deposition 3 wherein Blue verified the accuracy

      of the police report stating Blue “[fell] flat on his back.” (Id. at 40-41.) Wolf’s

      counsel also noted other inconsistencies between Blue’s testimony and his prior

      statements at the deposition, such as Blue’s testimony that he put Wolf in a

      “choke-hold.” (Id. at 43.)


[8]   Wolf asserted self-defense. Wolf testified he approached Blue, but only to “call

      him a dirty name.” (Id. at 65.) Wolf admitted he hit Blue, but he claimed he

      did so only after Blue grabbed his shirt. Wolf’s counsel moved for judgment on

      the evidence, arguing Blue was the aggressor because he grabbed Wolf’s shirt

      and Wolf had the right to defend himself.


[9]   At the conclusion of the bench trial, the court denied Wolf’s motion for

      judgment on the evidence, rejected Wolf’s self-defense claim, and found Wolf




      3
          The record does not contain a transcript of this deposition.


      Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017     Page 4 of 11
       guilty of Class A misdemeanor battery. The court sentenced Wolf to six

       months and suspended that time to unsupervised probation.



                                  Discussion and Decision
[10]   Wolf argues the State presented insufficient evidence to negate his claim of self-

       defense beyond a reasonable doubt. Specifically, he argues (1) the trial court

       erred in finding his act of calling Blue names constituted provocation, and (2)

       Blue’s testimony was incredibly dubious because it differed from the original

       police report.


[11]   Our standard for reviewing a challenge to the sufficiency of evidence to rebut a

       claim of self-defense is the same standard used 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 the witnesses. Adetokunbo v.

       State, 29 N.E.3d 1277, 1280 (Ind. Ct. App. 2015). We consider only the

       probative evidence and reasonable inferences supporting the trial court’s

       decision. Id. “A conviction will be affirmed if there is substantial evidence of

       probative value such that a reasonable trier of fact could have concluded the

       defendant was guilty beyond a reasonable doubt.” Id. at 1280-81.


[12]   To prove Wolf committed Class A misdemeanor battery, the State needed to

       present evidence Wolf “knowingly or intentionally touche[d] another person in

       a rude insolent, or angry manner” and it “result[ed] in bodily injury to any

       other person.” Ind. Code § 35-42-2-1(a)(1)(A) (2012). “Evidence of touching,


       Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017   Page 5 of 11
       however slight, is sufficient to support a conviction for battery.” Adetokunbo, 29

       N.E.3d at 1281.


[13]   “A valid claim of self-defense is legal justification for an otherwise criminal

       act.” Wallace, 725 N.E.2d at 840. “A person is justified in using reasonable

       force against any other person to protect the person from what the person

       reasonably believes to be the imminent use of unlawful force.” Ind. Code § 35-

       41-3-2(c). To prevail on a claim of self-defense, a defendant must show 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); Ind. Code

       § 35-41-3-2.


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

       State bears the burden of negating at least one of the necessary elements.” King

       v. State, 61 N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied. “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.” Id. If a defendant is convicted despite his

       claim of self-defense, we will reverse only if no reasonable person could say that

       self-defense was negated beyond a reasonable doubt. Wilson, 770 N.E.2d at

       801.




       Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017    Page 6 of 11
                                        I. Incredible Dubiosity
[15]   Wolf argues Blue’s testimony at trial was “incredibly dubious,” (Appellant’s Br.

       at 14), because it “changed dramatically from the date of the incident to the

       trial.” (Id. at 15.) As an example, Wolf points to Blue’s testimony at trial as

       being inconsistent with his prior statements about who fell to the ground first

       after Wolf “sucker punched” him. (Id.)


[16]   The incredible dubiosity rule allows the appellate court to impinge on the fact-

       finder’s assessment of witness credibility when the testimony at trial was “so

       contradictory that the verdict reached would be inherently improbable.” Moore

       v. State, 27 N.E.3d 749, 751 (Ind. 2015). “For the incredible dubiosity rule to

       apply, the evidence presented must be so unbelievable, incredible, or

       improbable that no reasonable person could ever reach a guilty verdict based

       upon that evidence alone.” Id. “Incredible dubiosity is a difficult standard to

       meet, requiring ambiguous, inconsistent testimony that ‘runs counter to human

       experience.’” Carter v. State, 44 N.E.3d 47, 52 (Ind. Ct. App. 2015). There must

       be: (1) a sole testifying witness; (2) whose testimony is inherently contradictory,

       equivocal, or the result of coercion; and (3) a complete absence of

       circumstantial evidence. Moore, 27 N.E.3d at 756. It is well-settled that

       “discrepancies between a witness’s trial testimony and earlier statements made

       to police and in depositions do not render such testimony ‘incredibly dubious.’”

       Holeton v. State, 853 N.E.2d 539, 541-42 (Ind. Ct. App. 2006).




       Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017    Page 7 of 11
[17]   Here, Blue’s testimony is not incredibly dubious. First, Blue’s testimony was

       not inherently contradictory. While Blue’s trial testimony varied slightly from

       his statements to police as to who fell to the ground first, it did not change

       materially. At trial, Blue still maintained that Wolf approached him from

       behind, started yelling at him, and punched him. Second, there was not a

       complete lack of circumstantial evidence – Officer Johns documented Blue’s

       injuries and Arnold testified that Wolf was on top of Blue when Arnold exited

       his car. Thus, the incredibly dubiosity rule is inapplicable here. See Moore, 27

       N.E.3d at 759 (holding incredible dubiosity rule inapplicable where factors

       necessary to warrant application of the rule were not present).


                                              II. Provocation
[18]   Wolf claims he had a “constitutionally protected right to call Blue a ‘dirty M-

       F’er’” and “a right to strike Blue in self-defense after Blue grabbed him by his

       shirt.” (Appellant’s Br. at 10.) Wolf cites Tisdale v. State, 199 Ind. 1, 154 N.E.

       801 (1927), to support his position that his name-calling did not constitute

       sufficient provocation to justify Blue grabbing his shirt.


[19]   “The trier of fact is entitled to determine which version of the incident to

       credit.” Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied.

       And, on appeal, we consider only the evidence most favorable to the State and

       will not reweigh the evidence or assess witness credibility. Lyles v. State, 970

       N.E.2d 140, 142 (Ind. 2012). As discussed above, Blue’s testimony was not

       incredibly dubious. Thus, while Wolf maintains Blue grabbed his shirt first, the


       Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017     Page 8 of 11
       facts most favorable to the court’s judgment are that Blue did not touch Wolf

       before Wolf punched Blue. When the facts are viewed in accordance with the

       standard of review, Wolf cannot claim self-defense because he initiated the

       violence. See Bryant v. State, 984 N.E.2d 240, 250-51 (Ind. Ct. App. 2013) (if a

       person is the initial aggressor, he is not justified in using force “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”); see also Ind. Code § 35-41-3-2(g)(3). Moreover,

       Wolf’s argument that his name-calling did not constitute provocation for Blue

       to grab Wolf becomes moot because, seeing the facts as we must, Blue did not

       grab Wolf.


[20]   To encourage us to look past the facts most favorable to the judgment, Wolf

       notes a statement the trial court made at the conclusion of the bench trial:


               [T]he rule of self-defense does not apply if he is the one who
               provoked the attack and it sounds to me, based upon the
               testimony presented, that Mr. Wolf provoked the incident by
               approaching Mr. Blue in the first place and by calling him names
               and provoked the attack. So the issue of self-defense I believe
               fails based upon the evidence presented. Based upon the
               evidence presented I also find that Mr. Wolf did in fact touch Mr.
               Blue in a rude, insolent, or angry manner which resulted in
               bodily injury to him. So, I will find that he is guilty of the
               Battery as a Class A Misdemeanor.


       (Tr. at 71.) Because the trial court stated Wolf “provoked the incident by

       approaching [Blue],” (id.), Wolf argues the court must have believed that Blue


       Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017      Page 9 of 11
       grabbed Wolf’s shirt first, instead of Blue’s testimony Wolf “sucker punched”

       Blue first. (Appellant’s Br. at 12-13.) Thus, Wolf reasons, if the court believed

       Wolf’s words constituted provocation, the court erred in rejecting his theory of

       self-defense, because “Wolf’s vile words did not justify Blue’s act of grabbing

       Wolf.” (Id. at 14.)


[21]   Although Wolf characterizes the trial court’s remarks at the bench trial as “a

       statement of law,” (id. at 11), the court’s remarks are neither a finding nor a

       legal conclusion, but “merely a partial explanation of the mental process” the

       trial court underwent in arriving at its conclusion Wolf was guilty. See Dozier v.

       State, 709 N.E.2d 27, 30 (Ind. Ct. App. 1999) (trial court’s remarks at

       sentencing were “merely a partial explanation of the mental process in which

       the trial court engaged to reach [its] conclusion” and not a “finding”). We

       explained in Dozier:


               Indeed, in a criminal case the trial court is not required to make
               either findings of fact or conclusions of law. Thus, the focus of
               our inquiry is not upon the remarks the trial court makes in a
               bench trial after having reached the conclusion that a defendant
               is guilty. Rather the question is whether the evidence presented
               to the trial court as fact-finder was sufficient to sustain the
               conviction.


        Id. (internal citations omitted.)


[22]   Similarly, in this criminal case, the trial court’s remarks at the bench trial are

       not a basis for reversal. As we held in Dozier, our focus is on whether the

       evidence was sufficient to sustain Wolf’s conviction, not whether the trial

       Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017       Page 10 of 11
       court’s remarks supported Wolf’s conviction. Thus, we cannot reverse based on

       the court’s statements at trial. See Wilson, 770 N.E.2d at 801 (“If there is

       sufficient evidence of probative value to support the conclusion of the trier of

       fact, then the verdict will not be disturbed.”).


[23]   The evidence established Wolf initiated and willingly participated in the fight,

       and thus the trial court properly rejected his claim of self-defense. See Bryant,

       984 N.E.2d at 251 (holding trial court properly rejected claim of self-defense

       where evidence reasonably established defendant participated willingly in fight).



                                           Conclusion
[24]   The State presented sufficient evidence to negate Wolf’s claim of self-defense

       beyond a reasonable doubt. Furthermore, the incredible dubiosity rule is

       inapplicable to Blue’s testimony. Accordingly, we affirm Wolf’s conviction of

       Class A misdemeanor battery.


[25]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 10A01-1607-CR-1560 | May 5, 2017    Page 11 of 11
