Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                         Jul 08 2013, 10:06 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS                                    GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    GEORGE P. SHERMAN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TERRENCE BOYD,                                      )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A05-1210-CR-498
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Rebekah Pierson-Treacy, Judge
                             Cause No. 49F19-1205-CM-33582


                                           July 8, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                 STATEMENT OF THE CASE

          Terrence Boyd (“Boyd”) appeals his conviction, after a bench trial, for battery as a

Class B misdemeanor.1

          We affirm.

                                             ISSUE

           Whether the evidence is sufficient to sustain Boyd’s conviction for battery.

                                             FACTS

          On May 19, 2012, Boyd, his mother, Carolyn Inman (“Inman”), and his cousin

Natasha Capler (“Capler”), were at the Nails 4 U Salon in Indianapolis. Xiep Van Tien

(“Xiep”) and his son, Phi Thai Tien (“Phi”), were working at the salon that day. Inman

received a manicure, and Boyd requested a manicure from Phi. Phi informed Boyd that

he did not provide manicures to men. At some point, Inman became upset and began to

yell, causing Xiep to approach Inman. Xiep put his hands up in front of Inman and asked

her to calm down. Inman refused and kept yelling. Boyd stepped between Xiep and

Inman and pushed Xiep. Xiep testified that he fell and scraped his wrist because of Boyd

pushing him.

          On May 22, 2012, the State charged Boyd with Class A misdemeanor battery.

The trial court conducted a bench trial on October 4, 2012. At the trial, Boyd testified

that he was trying to diffuse the situation between Xiep and Inman and that if he did

touch Xiep, it was not intentional. Teresa Lebeau (“Lebeau”) was also in the shop and

witnessed the incident. She testified that Xiep was trying to calm Inman down. Lebeau

1
    Ind. Code § 35-42-2-1.
                                                2
further testified that Boyd reached out and “made contact” with Xiep and that Boyd

appeared to be upset when he did it. (Tr. 44-45). The trial court found Boyd guilty of

battery as a Class B misdemeanor and sentenced him to four (4) days in jail.2

                                             DECISION

        Boyd argues that the evidence was insufficient to sustain his conviction for Class

B misdemeanor battery.          Specifically, Boyd claims that there is no evidence that a

touching occurred, and, in the alternative, any touching that occurred was justified in the

defense of Inman.3

        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) (internal quotation marks and

citations omitted).

        The trial court convicted Boyd of battery as a Class B misdemeanor. Thus, the

State’s evidence had to show that Boyd knowingly or intentionally touched Xiep in a

rude, insolent, or angry manner. Ind. Code §35-42-2-1. “A person engages in conduct

2
  Despite Xiep’s testimony, the trial court, with no further explanation, found Boyd guilty of the lesser
included Class B misdemeanor battery without injury.
3
 Boyd also claims that if any touching occurred, it was inadvertent. However, because Boyd chose to
press a claim of self-defense, his claim of inadvertency has no merit.
                                                   3
‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he

is doing so.”    I.C. § 35-41-2-2(b). “Any touching, however slight, may constitute

battery.” Impson v. State, 721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000). Here, Xiep

clearly testified that Boyd pushed him, and Lebeau testified that Boyd “made contact”

with Xiep. (Tr. 44-45). In addition, there was testimony that Boyd was angry at the time.

As a result, this evidence was sufficient for the trial court to infer that a battery occurred.

       As to Boyd’s claim of defense of another, “a valid claim of defense of oneself or

another is legal justification for an otherwise criminal act.” Hobson v. State, 795 N.E.2d

1118, 1121 (Ind. Ct. App. 2003), trans. denied. Indiana Code § 35-41-3-2(a) provides

that “[a] person is justified in using reasonable force against another person to protect the

person or a third person from what the person reasonably believes to be the imminent use

of unlawful force.”     “Reasonably believes,” as used in Indiana Code § 35-41-3-2,

“requires both subjective belief that force was necessary to prevent serious bodily injury,

and that such actual belief was one that a reasonable person would have under the

circumstances.” Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007).

       When waving his hands in front of her face, Xiep meant to calm Inman down, not

injure her. Lebeau testified, in her opinion, that Xiep appeared to be trying to “diffuse

the situation.” (Tr. 42). Given the circumstances, we cannot say that it was reasonable

for Boyd to believe that unlawful force or serious bodily injury were imminent.

Accordingly, we affirm Boyd’s conviction for battery.

       Affirmed.

KIRSCH, J., and VAIDIK, J., concur.

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