MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                          FILED
court except for the purpose of establishing                         Nov 21 2017, 9:26 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Amy D. Griner                                           Curtis T. Hill, Jr.
Mishawaka, Indiana                                      Attorney General of Indiana

                                                        Denise A. Robinson
                                                        Senior Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon McCall,                                         November 21, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A04-1703-CR-527
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable John M.
Appellee-Plaintiff                                      Marnocha, Judge
                                                        Trial Court Cause No.
                                                        71D02-1609-F5-178
                                                        71D02-1509-F5-208




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017       Page 1 of 7
                                             Case Summary
[1]   In this consolidated appeal, Brandon McCall appeals his conviction for Level 5

      felony domestic battery, the revocation of his probation in a separate case, and

      the sentence imposed for the revocation of his probation. We affirm.


                                                    Issues
[2]   McCall raises two issues, which we restate as:


                         I.    whether the State rebutted his self-defense
                               claim; and

                       II.     whether the trial court properly revoked his
                               probation and sentenced him to serve his entire
                               suspended sentence.


                                                    Facts
[3]   In February 2016, McCall pled guilty to Class A misdemeanor carrying a

      handgun without a license and Level 5 felony possession of methamphetamine.

      McCall was sentenced to one year on the handgun conviction and two years on

      the methamphetamine conviction with the sentences to be served concurrently.

      The trial court suspended the two-year sentence to probation.


[4]   On August 31, 2016, McCall was at his residence in Mishawaka with his

      girlfriend, T.H., who was pregnant. McCall and T.H. apparently had a violent

      relationship. They argued, and T.H. slapped McCall. T.H. called McCall’s

      stepmother about the argument. McCall then slapped T.H., knocking her

      glasses off, and repeatedly hit her on her face. T.H. left the house and called


      Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017   Page 2 of 7
      McCall’s stepmother again. When T.H. returned to the house to get her two

      children, McCall started hitting and slapping her again. McCall pushed her up

      against a wall, and his hands were on her throat. T.H. struggled with him and

      was eventually able to leave the house with the two children. T.H. called the

      police, who found her with blood on her lip and bruising on her neck and face.

      The officers then went to McCall’s residence. McCall got very upset and

      “started yelling and cursing” at T.H. for calling the police. Tr. Vol. II p. 24.

      McCall claimed to have been battered by T.H., but the officers did not see any

      injuries on McCall.


[5]   The State charged McCall with Level 5 felony domestic battery with bodily

      injury of a pregnant woman and Level 6 felony strangulation. At a bench trial,

      McCall claimed self-defense. The trial court found McCall guilty of Level 5

      felony domestic battery but not guilty of strangulation. The trial court

      sentenced him to four years with two years suspended to probation.


[6]   As a result of the new charges against McCall, the State filed a petition to revoke

      his probation. The trial court found that McCall had violated his probation and

      ordered him to serve his entire two-year previously-suspended sentence. McCall

      now appeals both his domestic battery conviction and the revocation of his

      probation.




      Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017   Page 3 of 7
                                                  Analysis
                                               I. Self-Defense

[7]   McCall claims that the State failed to rebut his self-defense claim. The standard

      of review for a challenge to the sufficiency of evidence to rebut a claim of self-

      defense is the same as the standard for any sufficiency of the evidence claim.

      Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh the

      evidence nor judge the credibility of witnesses. Id. If there is sufficient evidence

      of probative value to support the conclusion of the trier of fact, then the verdict

      will not be disturbed. Id.


[8]   A valid claim of self-defense is legal justification for an otherwise criminal act.

      Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). “A person is justified in using

      reasonable force against any other person to protect the person or a third 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 self-defense claim, the

      defendant must show that he: (1) was in a place where he had a right to be; (2)

      acted without fault; and (3) was in reasonable fear or apprehension of bodily

      harm. Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). “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.” Wilson v. State, 770 N.E.2d

      799, 800 (Ind. 2002). “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.” Miller v. State,

      720 N.E.2d 696, 700 (Ind. 1999). “If a defendant is convicted despite his claim

      Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017   Page 4 of 7
      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.” Wilson,

      770 N.E.2d at 800-01.


[9]   McCall argues that the State failed to rebut his “reasonable belief that he was in

      fear of bodily harm.” Appellant’s Br. p. 8. According to McCall, T.H. was the

      initial aggressor, she had hit him in the past, he had injuries after the

      altercation, and he was on home detention at the time and was unable to leave.

      However, the State presented evidence that, although T.H. admitted to slapping

      McCall during an argument, she then made a phone call. McCall then attacked

      T.H., slapping and hitting her. After T.H. escaped from him, she returned to

      the house to get her two children, and McCall attacked her a second time, again

      hitting her and holding her against the wall. “The amount of force that an

      individual may use to protect himself must be proportionate to the urgency of

      the situation.” Pinkston v. State, 821 N.E.2d 830, 842 (Ind. Ct. App. 2004),

      trans. denied. “When a person uses more force than is reasonably necessary

      under the circumstances, the right of self-defense is extinguished.” Id.

      Although T.H. slapped McCall, she had walked away from McCall and made a

      telephone call before McCall attacked her. McCall’s use of force was not

      proportionate to the urgency of the situation and he used more force than was

      necessary under the circumstances. Further, McCall’s claim that T.H. had

      significantly battered him was not supported by the evidence presented at the

      trial. The State presented sufficient evidence to disprove McCall’s self-defense

      claim.


      Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017   Page 5 of 7
                                II. Probation Revocation and Sentence

[10]   Next, McCall argues that the trial court erred by revoking his probation.

       “Probation is a matter of grace left to trial court discretion, not a right to which

       a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.

       2007). “The trial court determines the conditions of probation and may revoke

       probation if the conditions are violated.” Id. Proof of a single violation of the

       conditions of a defendant’s probation is sufficient to support a trial court’s

       decision to revoke probation. Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct.

       App. 1997). “If there is substantial evidence of probative value to support the

       trial court’s conclusion that a probationer has violated any condition of

       probation, we will affirm its decision to revoke probation.” Braxton v. State, 651

       N.E.2d 268, 270 (Ind. 1995).


[11]   McCall’s probation was revoked because of the new offense of domestic

       battery. On appeal, McCall argues only that the evidence is insufficient to

       sustain that domestic battery conviction because the State failed to rebut his

       claim of self-defense. We have rejected that argument, and the trial court

       properly revoked McCall’s probation.


[12]   McCall also argues that the sentence imposed by the trial court for the

       revocation of his probation was an abuse of discretion. McCall argues that the

       trial court should not have imposed the entire suspended sentence because he

       was on house arrest and unable to leave the house to escape T.H., T.H. was the

       initial aggressor and had been violent in the past, and he had been doing well

       on home detention. A trial court’s sentencing decisions for probation violations
       Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017   Page 6 of 7
       are reviewable using the abuse of discretion standard. Prewitt, 878 N.E.2d at

       188. An abuse of discretion occurs where the decision is clearly against the

       logic and effect of the facts and circumstances. Id. Upon a finding of a

       probation violation, a trial court may: (1) continue the person on probation,

       with or without modifying or enlarging the conditions; (2) extend the person’s

       probationary period for not more than one year beyond the original

       probationary period; and (3) order execution of all or part of the sentence that

       was suspended at the time of initial sentencing. I.C. § 35-38-2-3(h). McCall was

       given significant leniency when the trial court suspended his two-year sentence

       to probation. Despite the leniency, he battered his pregnant girlfriend. In the

       PSI, McCall admitted that he was drinking alcohol on the day of the incident.

       He also has a prior conviction for domestic battery. Given these circumstances,

       the trial court did not abuse its discretion by ordering McCall to serve the entire

       two-year suspended sentence as a result of the revocation of his probation.


                                                Conclusion
[13]   The State presented sufficient evidence to rebut McCall’s claim of self-defense.

       Further, the trial court properly revoked his probation and properly ordered him

       to serve his entire suspended sentence. We affirm.


[14]   Affirmed.


       May, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017   Page 7 of 7
