MEMORANDUM DECISION
                                                                               FILED
Pursuant to Ind. Appellate Rule 65(D), this                             May 22 2019, 7:36 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                             CLERK
                                                                          Indiana Supreme Court
purpose of establishing the defense of res judicata,                         Court of Appeals
                                                                               and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Anna Onaitis Holden                                    Curtis T. Hill, Jr.
Indianapolis, Indiana                                  Attorney General of Indiana
                                                       Evan Matthew Comer
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Michael G. McGinley,                                       May 22, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-2711
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Hon. Steven Rubick,
Appellee-Plaintiff.                                        Magistrate
                                                           Trial Court Cause No.
                                                           49G01-1803-F5-9631



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2711 | May 22, 2019                      Page 1 of 5
                                          Case Summary
[1]   In March of 2018, Michael McGinley and Brenda McNulty were cohabitating

      and attempting to reconcile after ending their romantic relationship. Early in

      the morning of March 18, 2018, McGinley returned home and began yelling at

      McNulty, accusing her of infidelity. McGinley began beating McNulty,

      punching her several times in the head and causing her to lose consciousness

      twice. McNulty eventually escaped, but not before suffering an orbital fracture

      and a concussion. After a bifurcated bench trial, the trial court found McGinley

      guilty of Level 5 felony battery resulting in serious bodily injury and found him

      to be a habitual offender. McGinley contends that the State failed to rebut his

      claim of self-defense. Because we disagree, we affirm.


                            Facts and Procedural History
[2]   As of March 17, 2018, McGinley was living with McNulty in Indianapolis, and

      even though the pair had ended their romantic relationship, they were

      attempting to reconcile. That day, McNulty’s shift as a cook at a local bar

      ended at approximately 11:00 p.m., and she went home. Between 5:00 p.m.

      and when she left, McNulty had consumed approximately five alcoholic

      beverages and was “tipsy” but not “blackout drunk[.]” Tr. Vol. II p. 8.

[3]   McGinley, who was intoxicated, arrived home after midnight and began yelling

      at McNulty and accusing her of infidelity. At some point, McGinley took hold

      of McNulty’s neck with one hand and punched her on the side of the head with

      the other, causing her to briefly lose consciousness. When McNulty regained

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2711 | May 22, 2019   Page 2 of 5
      consciousness in another room, McGinley was still punching her in the head,

      legs, and arms. McNulty lost consciousness again and regained consciousness

      in a third room. McGinley had his hand around McNulty’s neck, was

      punching her, and was saying that he “was going to f[******] kill [her.]” Tr.

      Vol. II p. 13. McNulty managed to escape and summon help from a neighbor’s

      house. It was later determined that McNulty had suffered an orbital fracture

      and a concussion.

[4]   On March 23, 2018, the State charged McGinley with Level 5 felony battery

      resulting in serious bodily injury, Level 5 felony criminal confinement, Level 6

      felony strangulation, and Level 6 felony domestic battery. The State also

      alleged McGinley to be a habitual offender. On September 14, 2018 and

      September 17, 2018, the trial court conducted a bifurcated bench trial. The trial

      court found McGinley guilty of battery resulting in serious bodily injury and

      domestic battery, merged those convictions, and found McGinley to be a

      habitual offender. On October 16, 2018, the trial court sentenced McGinley to

      one year of incarceration to be followed by three years in community

      corrections and one year of probation.


                                Discussion and Decision
[5]   While McGinley does not deny striking McNulty or causing her serious bodily

      injury, he contends that the State failed to rebut his claim that he acted in self-

      defense:

              When a defendant challenges the State’s sufficiency of the
              evidence to rebut a claim of self-defense, the standard of review

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2711 | May 22, 2019   Page 3 of 5
               remains the same as for any sufficiency of the evidence claim.
               We neither reweigh the evidence nor assess the credibility of
               witnesses but look solely to the evidence most favorable to the
               judgment with all reasonable inferences to be drawn therefrom.
               We will affirm a conviction where such evidence and reasonable
               inferences constitute substantial evidence of probative value
               sufficient to support the judgment.
               Self-defense is recognized as a valid justification for an otherwise
               criminal act. When raised, a defendant must establish that he or
               she was in a place where he or she had the right to be, acted
               without fault, and was in reasonable fear or apprehension of
               death or great bodily harm. Once a defendant claims self-
               defense, the State bears the burden of disproving at least one of
               these elements beyond a reasonable doubt for the defendant’s
               claim to fail. 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. Whether the State has met its burden is a
               question of fact for the jury.
      Miller v. State, 720 N.E.2d 696, 699–00 (Ind. 1999) (citations omitted).

[6]   McGinley contends that he was without fault and struck McNulty out of

      reasonable fear for his safety. McNulty, however, testified that McGinley was

      the initial aggressor, testimony the trial court was entitled to believe and did. It

      is well-settled that “[s]elf-defense […] is unavailable to a defendant who is the

      initial aggressor[.]”1 Id. at 700. McGinley points to his testimony that




      1
         Indiana Code section 35-41-3-2(g) provides a limited exception to this general rule, namely, that “a person
      is not justified in using force if [the person is] the initial aggressor 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.” McGinley does not claim, much less establish, that the
      altercation in this case fits within this scenario.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2711 | May 22, 2019                        Page 4 of 5
      McNulty initiated both the verbal altercation and the physical violence, striking

      him twice before he responded in kind. McGinley also points to some of

      McNulty’s testimony, claiming that it establishes that her recollection of the

      events of the evening in question was questionable. The trial court was in the

      best position to evaluate this evidence and give it appropriate weight, and we

      will not second-guess its determinations as to credibility and weight. In the

      end, McGinley’s argument is nothing more than an invitation to reweigh the

      evidence, which we will not do. Miller, 720 N.E.2d at 699. McGinley has not

      established that the State failed to rebut his claim of self-defense.

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


      Crone, J., and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2711 | May 22, 2019   Page 5 of 5
