MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                 FILED
regarded as precedent or cited before any                        May 21 2019, 8:45 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
Kurt A. Young                                          Curtis T. Hill, Jr.
Nashville, Indiana                                     Attorney General of Indiana
                                                       Samuel J. Dayton
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                         IN THE
    COURT OF APPEALS OF INDIANA

Austin Howard Keever,                                  May 21, 2019
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       18A-CR-2653
        v.                                             Appeal from the Marion Superior
                                                       Court
State of Indiana,                                      The Honorable Angela Dow
Appellee-Plaintiff.                                    Davis, Judge
                                                       Trial Court Cause No.
                                                       49G16-1803-F6-7307



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2653 | May 21, 2019              Page 1 of 7
                               Case Summary and Issue
[1]   A jury found Austin Keever guilty of strangulation, a Level 6 felony, and not

      guilty of domestic battery as a Level 6 felony or criminal mischief, a Class B

      misdemeanor. The trial court entered judgment of conviction on the

      strangulation count and sentenced Keever to 910 days, all suspended to

      probation. Keever appeals his conviction, claiming it was not supported by

      sufficient evidence. Concluding the evidence was sufficient to prove Keever

      committed the offense of strangulation, we affirm.



                           Facts and Procedural History
[2]   The evidence most favorable to the verdict shows that Keever and Audrey St.

      John were involved in a relationship from early 2017 to February 2018. St.

      John moved into Keever’s home in July 2017 and moved most of her

      belongings out of the home in December 2017. She returned to Keever’s home

      frequently after December, however; sometimes at his invitation, sometimes

      uninvited.


[3]   St. John arrived at Keever’s home on February 27, 2018, and stayed the night.

      While she was there, she saw a text on Keever’s phone indicating someone was

      trying to set Keever up with another girl and it upset her. The next morning, a

      male friend of St. John’s called her and Keever became upset. They argued and

      Keever took St. John’s phone and tried to bend or break it. When St. John tried

      to take her phone back, Keever “pushed [her] up against the wall with his


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2653 | May 21, 2019   Page 2 of 7
      hand.” Transcript of Evidence, Volume II at 50. As Keever squeezed St.

      John’s neck with his right hand, St. John tried to get his hand off her and

      scratched him. Keever let go of St. John’s throat and kicked her phone across

      the room. As St. John scrambled to pick it up, Keever grabbed her arm and

      pulled her to the ground. St. John testified that Keever “was on top of me,

      choking me with both hands, and like lifting my head up off the ground and like

      yelling at me.” Id. at 53. St. John “couldn’t really breathe[,]” could not speak,

      and felt light-headed and scared. Id. St. John felt pain as Keever choked her

      and the pain continued the next day. Eventually, Keever let her go, got up, and

      went into the bathroom. Keever threw something at St. John that hit her in the

      face and caused her to bleed. When Keever realized St. John was bleeding, he

      got a wet paper towel and held it to her head. Although St. John said she

      wanted to leave, Keever would not let her until she convinced him she just

      needed to step outside for a moment and would not call the police. St. John left

      the house, locked herself in her car, and was able to contact 911. Photos taken

      of St. John that same day show extensive bruising around her neck, as well as

      scratches and bruises on her arms and a cut above her right eyebrow.


[4]   The State charged Keever with strangulation, a Level 6 felony; domestic battery

      resulting in moderate bodily injury, a Level 6 felony; and criminal mischief, a




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2653 | May 21, 2019   Page 3 of 7
      Class B misdemeanor.1 A jury found Keever guilty of strangulation but not

      guilty of domestic battery or criminal mischief. Keever now appeals.



                                   Discussion and Decision
                                        I. Standard of Review
[5]   When reviewing the sufficiency of the evidence required to support a criminal

      conviction, we do not reweigh the evidence or judge the credibility of the

      witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider only

      the evidence supporting the verdict and any reasonable inferences that can be

      drawn therefrom. Morris v. State, 114 N.E.3d 531, 535 (Ind. Ct. App. 2018),

      trans. denied. Thus, we consider conflicting evidence most favorably to the

      verdict. Silvers v. State, 114 N.E.3d 931, 936 (Ind. Ct. App. 2018). “We will

      affirm 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.” Bailey, 907 N.E.2d at 1005. It is not necessary for the evidence to

      overcome every reasonable hypothesis of innocence; it is sufficient if an

      inference may reasonably be drawn from the evidence to support the verdict.

      Silvers, 114 N.E.3d at 936.2




      1
       Additional charges of criminal confinement and interference with the reporting of a crime were dismissed
      before trial.
      2
        Keever briefly mentions the standard for reviewing a claim of incredible dubiosity but does not argue that
      the “very specific circumstances” in which the rule applies are present here. See Brief of Appellant at 12
      (quoting Smith v. State, 34 N.E.3d 1211, 1221 (Ind. 2015)). This argument, to the extent it was raised at all, is

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2653 | May 21, 2019                         Page 4 of 7
                                 II. Evidence of Strangulation
[6]   Keever was found guilty of strangulation, a Level 6 felony. In order to convict

      Keever of this offense, the State had to prove that he 1) knowingly or

      intentionally; 2) in a rude, angry, or insolent manner; 3) applied pressure to St.

      John’s throat or neck, obstructed her nose or mouth, or applied pressure to her

      torso; 4) in a manner that impeded her normal breathing or blood circulation.

      Ind. Code § 35-42-2-9(c).


[7]   As stated in the facts above, St. John testified the argument began when a male

      friend called her cell phone and Keever became angry and choked her. Keever

      testified the argument began because St. John found text messages on his phone

      she did not like and began “hitting, clawing, [and] attacking” him. Tr., Vol. II

      at 202. Nonetheless, Keever concedes that an altercation took place on

      February 28, 2018, and argues that, while it is apparent “that the two engaged

      in mutual combat,” the issue is “who was the aggressor,” and his conviction

      “rests upon . . . mere speculation that he was the aggressor.” Br. of Appellant

      at 13-14. Although Keever never specifically articulates in his brief that he is

      challenging the evidence rebutting a claim of self-defense, this appears to be the

      crux of his argument.




      waived because it is not supported by cogent argument. See Ind. Appellate Rule 46(A)(8)(a); Burnell v. State,
      110 N.E.3d 1167, 1171 (Ind. Ct. App. 2018).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2653 | May 21, 2019                       Page 5 of 7
[8]   “A person is justified in using reasonable force against any other person to

      protect [himself] . . . from what [he] 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, the defendant must show that 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 bodily harm. Wilson v. State, 770 N.E.2d 799, 800 (Ind.

      2002). However, “a mutual combatant, whether or not the initial aggressor,

      must declare an armistice before he or she may claim self-defense.” Id. at 801;

      see Ind. Code § 35-41-3-2(g)(3). Moreover, “[a] claim of self-defense will fail if

      the person uses more force than is reasonably necessary under the

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

      (quotation omitted), trans. denied. 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 challenge to the sufficiency of the evidence. Wilson, 770

      N.E.2d at 801. “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 by the State beyond a reasonable doubt.” Id. at 800-01.


[9]   Keever claims his conviction rests on speculation that he was the initial

      aggressor. We note first that St. John plainly testified that Keever was the

      initial aggressor and the jury clearly believed her rendition of the facts, which is

      not speculation, but a credibility determination left to the trier of fact. See

      Chambless v. State, 119 N.E.3d 182, 192 (Ind. Ct. App. 2019) (“[I]t is the jury’s

      role to weigh conflicting evidence.”), trans. denied. However, whether or not he

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2653 | May 21, 2019   Page 6 of 7
       was the initial aggressor, his self-defense claim fails. Even if we accepted

       Keever’s rendition of how the altercation started, he acknowledges he and St.

       John engaged in “mutual combat,” see Br. of Appellant at 14, does not claim

       that he had any fear of bodily harm, and the State presented evidence that

       Keever responded with more force than was reasonably necessary under the

       circumstances. St. John testified that she could barely breathe as Keever

       choked her, that she felt light-headed and felt pain, and that the pain persisted

       the next day. The photographs of St. John’s bruises depict clear finger marks

       around her neck. This evidence was sufficient to rebut Keever’s claim of self-

       defense and to prove that he committed the offense of strangulation.3



                                                    Conclusion
[10]   The State presented evidence of probative value such that a reasonable trier of

       fact could have concluded Keever was guilty of strangulation beyond a

       reasonable doubt. We therefore affirm his conviction.


[11]   Affirmed.


       Baker, J., and Najam, J., concur.




       3
         Keever also argues that although jury verdicts in criminal cases are not subject to review on grounds they
       are inconsistent, see Beattie v. State, 924 N.E.2d 643, 648 (Ind. 2010), the fact that the jury found him guilty of
       strangulation but not of domestic battery “is relevant in determining whether the jury based its decision on
       the evidence produced or upon suspicion, conjecture, conclusion, guess, opportunity, or scintilla,” because
       “[i]f there was sufficient evidence of strangulation, there was clearly evidence of domestic battery,” Br. of
       Appellant at 15. We disagree with Keever’s premise, as the charge of domestic battery was based upon the
       laceration to St. John’s head.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2653 | May 21, 2019                            Page 7 of 7
