MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Jun 25 2018, 10:03 am
court except for the purpose of establishing
the defense of res judicata, collateral                                         CLERK
                                                                            Indiana Supreme Court
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estoppel, or the law of the case.                                                and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Nicole A. Zelin                                          Curtis T. Hill, Jr.
Pritzke & Davis, LLP                                     Attorney General of Indiana
Greenfield, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gary B. Henderson,                                       June 25, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         30A01-1710-CR-2395
        v.                                               Appeal from the Hancock Circuit
                                                         Court
State of Indiana,                                        The Honorable Richard D. Culver,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         30C01-1703-F5-648



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 30A01-1710-CR-2395 | June 25, 2018                Page 1 of 8
                                          Case Summary
[1]   Gary Henderson was convicted of Class A misdemeanor domestic battery

      following a physical altercation involving his girlfriend. On appeal, Henderson

      contends that the evidence is insufficient to sustain his conviction. He argues

      both that the evidence is insufficient to (1) prove that he touched his girlfriend

      in a rude, insolent, or angry manner and (2) rebut his claim of self-defense. We

      affirm.



                            Facts and Procedural History
[2]   Henderson and Alexandria Wright were involved in a romantic relationship

      and, in August of 2016, began living together. At some point, Wright became

      pregnant with Henderson’s child. In anticipation for the baby’s arrival, they

      prepared a room for the baby. However, by the end of March of 2017,

      Henderson and Wright were experiencing relationship troubles.


[3]   On Friday March 24, 2017, Henderson and Wright argued before he and his

      children went to Kentucky to visit family. They continued to argue via

      telephone and text message throughout the course of the weekend. At some

      point, Wright told Henderson that “enough was enough” and that she was

      “going to pack [her] things while he was gone and … leave him.” Tr. Vol. II, p.

      25. Over the course of Saturday and Sunday, Wright packed “what [she]

      needed for [her unborn] baby and for [herself]” and took the items to her

      brother’s home. Tr. Vol. II, p. 26. Although Henderson and Wright continued


      Court of Appeals of Indiana | Memorandum Decision 30A01-1710-CR-2395 | June 25, 2018   Page 2 of 8
      to argue after he returned home on Sunday evening, they agreed to work on

      their relationship and discussed going to counseling.


[4]   The next morning, Henderson and Wright continued to discuss their

      relationship but began arguing again after Henderson attempted to remove

      some items from Wright’s vehicle and bring the items back into the home. At

      this point, Wright observed that Henderson had replaced the doorknob to the

      room they had prepared for the baby with a deadbolt and had kept the key for

      himself.


[5]   In an attempt to keep Henderson from locking the door, Wright placed herself

      in the open doorway. Eventually, the argument became physical with

      Henderson restraining Wright, Wright biting Henderson on the chest, and

      Henderson pulling Wright away by the ponytail. After Wright broke free from

      Henderson’s grasp, Henderson shut the door and Wright left the residence.


[6]   On March 28, 2017, the State charged Henderson with Level 5 felony battery

      resulting in bodily injury to a pregnant woman and Class A misdemeanor

      domestic battery. Following a two-day jury trial, Henderson was found not

      guilty of the Level 5 felony charge but guilty of Class A misdemeanor domestic

      battery. The trial court subsequently sentenced him to a term of 365 days with

      credit for time served and the remaining time suspended to probation.



                                 Discussion and Decision


      Court of Appeals of Indiana | Memorandum Decision 30A01-1710-CR-2395 | June 25, 2018   Page 3 of 8
[7]   Henderson contends that the evidence is insufficient to sustain his conviction

      for domestic battery. In raising this contention, Henderson argues that the

      evidence is insufficient to prove that he touched Wright in an angry, insolent, or

      rude manner. Alternatively, Henderson argues that the evidence is insufficient

      to rebut his self-defense claim.


[8]           When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting the verdict. It is
              the fact-finder’s role, not that of appellate courts, to assess
              witness credibility and weigh the evidence to determine whether
              it is sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The
              evidence is sufficient if an inference may reasonably be drawn
              from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). “In essence, we assess only whether the verdict could be

      reached based on reasonable inferences that may be drawn from the evidence

      presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

      original).


                A. Sufficiency of Evidence to Sustain Conviction
[9]   In challenging the sufficiency of the evidence to sustain his conviction for Class

      A misdemeanor domestic battery, Henderson acknowledges the general

      Court of Appeals of Indiana | Memorandum Decision 30A01-1710-CR-2395 | June 25, 2018   Page 4 of 8
       proposition that guilt may be proven by the uncorroborated testimony of a

       single witness. See generally, Ferrell v. State, 565 N.E.2d 1070, 1072–73 (Ind.

       1991) (providing that “the uncorroborated testimony of one witness is sufficient

       to convict, even if the witness in question is the victim”). Henderson, however,

       asserts that in this case, “the verdict cannot stand” because Wright’s testimony

       “was incredibly dubious and inherently improbable.” Appellant’s Br. p. 8

       (quotation marks omitted).


               Under the “incredible dubiosity rule,” this court may impinge
               upon the jury’s responsibility to judge the credibility of witnesses
               when confronted with inherently improbable testimony or
               coerced, equivocal, wholly uncorroborated testimony. Manuel v.
               State, 971 N.E.2d 1262, 1271 (Ind. Ct. App. 2012). If a sole
               witness presents inherently improbable testimony and there is a
               complete lack of circumstantial evidence, a defendant’s
               conviction may be reversed. Id. Application of this rule is rare,
               though, and the standard to be applied is whether the testimony
               is so incredibly dubious or inherently improbable that no
               reasonable person could believe it. Id.


       Livers v. State, 994 N.E.2d 1251, 1256 (Ind. Ct. App. 2013). Review of the

       record reveals that contrary to Henderson’s assertion, Wright’s testimony was

       neither incredibly dubious nor inherently improbable.


[10]   In order to prove that Henderson committed Class A misdemeanor domestic

       battery, the State was required to prove that he “touche[d] a family or

       household member in a rude, insolent, or angry manner[.]” Ind. Code § 35-42-

       2-1.3(a)(1). Henderson’s testimony corroborated Wright’s testimony regarding

       a rude, angry, or insolent touching of Wright by Henderson. Wright testified

       Court of Appeals of Indiana | Memorandum Decision 30A01-1710-CR-2395 | June 25, 2018   Page 5 of 8
       that on the day in question, she and Henderson were engaged in a verbal

       argument and that the argument eventually became physical. She testified that

       during the argument, Henderson both restrained her arms and pulled her hair.

       Although Henderson later testified that he did not restrain Wright’s arms, he

       testified that he grabbed Wright by the hair and pulled her way. Given that

       both Henderson and Wright indicated that they were arguing when Henderson

       grabbed and pulled Wright by the hair, the jury could reasonably infer that

       Henderson did so in a rude, insolent, or angry manner. See Drane, 867 N.E.2d

       at 147.


[11]   Henderson’s assertion that Wright’s testimony was incredibly dubious appears

       to be based on his claim that it would have been impossible for him to lock the

       deadbolt to the door with one hand. However, review of Wright’s testimony

       indicates that she merely testified that he shut the door and that she did not

       remember whether he locked the door. In addition, to the extent that

       Henderson asserts that it was impossible to shut the door because the door

       handle had been removed, the State presented evidence that the new handle

       and deadbolt had been installed prior to the altercation. Henderson’s claim

       effectively amounts to an invitation to reweigh the evidence and reassess

       witness credibility, which we will not do. See Stewart v. State, 768 N.E.2d 433,

       435 (Ind. 2002).


                             B. Henderson’s Self-Defense Claim
[12]   Alternatively, Henderson asserts that the State failed to rebut his claim of self-

       defense.
       Court of Appeals of Indiana | Memorandum Decision 30A01-1710-CR-2395 | June 25, 2018   Page 6 of 8
               A valid claim of defense of oneself or another person is legal
               justification for an otherwise criminal act. Ind. Code § 35–41–3–
               2(a); Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). In order
               to prevail on such a claim, the 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. McEwen v. State,
               695 N.E.2d 79, 90 (Ind. 1998). 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. Id. If a
               defendant is convicted despite his claim of self-defense, this
               Court will reverse only if no reasonable person could say that
               self-defense was negated by the State beyond a reasonable doubt.
               Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999). In any event, a
               mutual combatant, whether or not the initial aggressor, must
               declare an armistice before he or she may claim self-defense.
               Wooley v. State, 716 N.E.2d 919, 926 (Ind. 1999); see I.C. § 35–41–
               3–2(e)(3) (2002) (“[A] person is not justified in using force if: ...
               the person has entered into combat with another person or 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.”).


       Wilson v. State, 770 N.E.2d 799, 800–01 (Ind. 2002).


[13]   By his own admission, Henderson was a mutual combatant in the altercation.

       He and Wright mutually participated in a verbal agreement which escalated, at

       least in part, because of his actions. Further, at no point did he withdraw from

       the altercation or declare an armistice. As such, given the evidence presented

       during trial, Henderson’s self-defense claim could not succeed. Id. (citing

       Wooley, 716 N.E.2d at 926; I.C. § 35–41–3–2(e)(3)). The State, therefore, met

       its burden of rebutting Henderson’s claim of self-defense.
       Court of Appeals of Indiana | Memorandum Decision 30A01-1710-CR-2395 | June 25, 2018   Page 7 of 8
[14]   The judgment of the trial court is affirmed.


       Baker, J., and Kirsch, J., concur.




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