MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Sep 01 2016, 6:21 am

regarded as precedent or cited before any                             CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Michael Gene Worden
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven A. Bedford,                                       September 1, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1508-CR-1185
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J. Lewis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         84D06-1407-FB-1986



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 1 of 12
[1]   Steven Bedford appeals his convictions for Aggravated Battery,1 a Class B

      Felony, and Child Solicitation,2 a Class D Felony. He argues that the trial

      court erred by excluding certain evidence and refusing certain jury instructions.

      He also argues that there is insufficient evidence supporting his conviction for

      aggravated battery and that there is a clerical error on the abstract of judgment.

      Finding no error other than the clerical error on the abstract of judgment, we

      affirm but remand with instructions to correct the abstract of judgment.


                                                     Facts
[2]   In June 2014, Bedford had fallen on hard times, with no employment and no

      place to live. His sister, Jenny Bedford, and her long-time boyfriend, David

      Dunigan, allowed Bedford to stay in the sunroom in their house. David and

      Jenny’s daughter, A.D., also lived in the house, and her friend, E.C., would

      come over often. In June 2014, both A.D. and E.C. were twelve years old.


[3]   From the time he moved in, Bedford would make inappropriate sexual

      comments to E.C. He repeatedly told her that she was cute, that she was hot,

      “and that he was gonna do her.” Tr. p. 32. He also invited her to join him in

      the sunroom so that he could sleep with her. When Dunigan learned of these

      comments, he told Bedford to stop, and called the police, but the police did not

      take action.




      1
          Ind. Code § 35-42-2-1.5.
      2
          I.C. § 35-42-4-6(b).


      Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 2 of 12
[4]   On one occasion in June 2014, A.D. and E.C. were on the front porch when

      Bedford approached. He again told E.C. that “he was gonna do” her, and A.D.

      told him “that’s nasty.” Id. at 34. Bedford responded: “what are you talking

      about, I could turn incest and do you any minute.” Id. A.D went inside and

      told her mother what Bedford had said, and Jenny told Dunigan. Dunigan

      intended to confront Bedford about the comments and tell him to leave, but

      Bedford had left the house.


[5]   On June 24, 2014, Dunigan walked into the sunroom and asked Bedford

      whether he had made the incest comment to A.D. Bedford confirmed that he

      had, but said “words are words.” Id. at 75. Dunigan told Bedford to leave

      immediately, but Bedford believed that he had a right to stay for thirty days.

      Bedford told Dunigan to call the cops. Dunigan said, “if the cops give you

      those thirty days . . . I’m going to stay out [here] with you every day and every

      night.” Id. at 76. Dunigan told him that he could not be around Dunigan’s

      kids anymore. Bedford told Dunigan that he was going to force A.D. to

      perform oral sex on him and force Dunigan to watch. Id.


[6]   The two men argued back and forth. Then, Bedford said, “oh no bro,” id. at

      78, and pushed Dunigan against the wall. Dunigan pushed him back, and the

      two began to fight. Bedford then picked up a stapler and hit Dunigan on the

      head, twice. Dunigan later recounted, “Instantly had my eyes full of blood,

      couldn’t see nothin’.” Id. at 79. Bedford got on Dunigan’s back, put his arm

      around Dunigan’s neck, and began choking him. Dunigan was able to stand up



      Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 3 of 12
       and ram Bedford into a wall. Bedford then walked out of the house, pushing

       Jenny and A.D. as he left.


[7]    The police arrived shortly thereafter and called an ambulance for Dunigan. At

       the hospital, he required thirteen staples to close the wound on his head.


[8]    On July 29, 2014, the State charged Bedford with aggravated battery, a Class B

       felony; battery by means of a deadly weapon, a Class C felony; child

       solicitation, as a Class C and Class D felony; battery resulting in bodily injury,

       as a Class A misdemeanor and a Class D felony; and two counts of battery, a

       Class B misdemeanor. Following his June 29, 2015, trial, the jury found

       Bedford guilty of aggravated battery, battery by means of a deadly weapon, and

       both child solicitation counts, but not guilty of the remaining charges.


[9]    At his trial, Bedford sought to have his mother testify that Dunigan had

       previously kicked a cousin out of his house and then stolen her property, and

       Bedford attempted to make an offer of proof to this effect. Dunigan denied the

       allegation, and the trial court excluded this evidence. Bedford also tendered

       several self-defense instructions; the trial court gave two of these instructions

       regarding defense of one’s person, but did not give instructions regarding

       defense of one’s property.


[10]   On August 5, 2015, the trial court sentenced Bedford to six years imprisonment

       for aggravated battery, and one-year sentences suspended to probation for each

       child solicitation conviction. Although the trial court stated at the sentencing

       hearing that it was vacating the conviction for battery by means of a deadly

       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 4 of 12
       weapon out of double jeopardy concerns, that ruling was not reflected on the

       abstract of judgment, which instead lists that conviction as being merged with

       the conviction for aggravated battery. Bedford now appeals.


                                    Discussion and Decision
[11]   Bedford has four arguments on appeal. First, he argues that the trial court erred

       by excluding evidence that Dunigan evicted a tenant and stole her property.

       Second, he argues that the evidence is insufficient to support his aggravated

       battery conviction. Third, he argues that the trial court erred by rejecting some

       of his proposed final instructions on self-defense. Finally, he argues that the

       case should be remanded so that the abstract of judgment can be corrected to

       show that his conviction for battery by means of a deadly weapon was vacated.


                                       I. Excluded Evidence
[12]   Bedford sought to introduce evidence that Dunigan evicted a previous tenant

       and stole her property. He argues that this evidence should have been admitted

       under Indiana Evidence Rule 404(b)(2), which provides an exception to the

       general rule that character evidence is inadmissible, stating that evidence of a

       wrong “may be admissible for . . . proving motive, opportunity, intent,

       preparation, plan, knowledge, identity, absence of mistake, or lack of mistake.”

       Bedford also points to Evidence Rule 616: “Evidence that a witness has a bias,

       prejudice, or interest for or against any party may be used to attack the

       credibility of the witness.” Finally, although he did not raise this argument at

       trial, he argues that the exclusion of this evidence violated his rights under the

       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 5 of 12
       Sixth Amendment to the United States Constitution, alleging that he was

       unable to effectively cross-examine Dunigan or present a defense without this

       evidence.


[13]   The trial court has broad discretion in ruling on the admission or exclusion of

       evidence, and its ruling will be disturbed only if it is clearly against the logic,

       facts, and circumstances presented. Gutierrez v. State, 961 N.E.2d 1030, 1034

       (Ind. Ct. App. 2012). Moreover, even if the trial court erroneously admits or

       excludes evidence, we will not reverse if the admission or exclusion was

       harmless error. Id. A claim of error in the admission or exclusion of evidence

       will not prevail on appeal unless a substantial right of the party is affected. Id.


[14]   The State advances a number of responses for why this evidence was properly

       excluded by the trial court, and we find one dispositive: this evidence was not

       relevant. Indiana Evidence Rule 402 says that irrelevant evidence is not

       admissible. “Evidence is relevant if: (a) it has any tendency to make a fact more

       or less probable than it would be without the evidence; and (b) the fact is of

       consequence in determining the action.” Ind. Evid. Rule 401.


[15]   Since his initial encounters with police, Bedford has admitted that he struck

       Dunigan. His entire defense was based on a theory of self-defense. The facts

       that were of consequence related to who initiated the confrontation, who

       escalated the confrontation, and whether Bedford used excessive or

       unreasonable force during the confrontation. Even if we grant the truth of

       Bedford’s allegations—and we note that they were adamantly denied, during


       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 6 of 12
       the offer of proof, by Dunigan, and would have rested solely on hearsay

       testimony from Bedford’s mother—that Dunigan had an ulterior motive to evict

       Bedford, that would not justify Bedford pushing Dunigan, nor would it

       influence the determination of whether Bedford unreasonably escalated the

       fight by beating Dunigan with a stapler. In short, whether Dunigan had

       previously evicted a tenant is of no consequence, it was irrelevant to this case,

       and evidence regarding this allegation was properly excluded.


[16]   As for Bedford’s Sixth Amendment argument, he acknowledges that, because

       he did not raise it to the trial court, he must establish that fundamental error

       occurred. Fundamental error is an extremely narrow exception to the waiver

       rule where the defendant faces the heavy burden of showing that the alleged

       errors are so prejudicial to the defendant’s rights as to make a fair trial

       impossible. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014).


[17]   Although the right to present a defense, which includes the right to present the

       defendant’s version of the facts, is of the utmost importance, it is not absolute.

       Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001). “[T]he accused, as is

       required of the State, must comply with established rules of procedure and

       evidence designed to assure both fairness and reliability in the ascertainment of

       guilt and innocence.” Id. (citing Chambers v. Mississippi, 410 U.S. 284, 302

       (1973)).


[18]   One of our established rules of evidence is Indiana Evidence Rule 402, which

       prohibits the admission of irrelevant evidence. As discussed above, the


       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 7 of 12
       evidence Bedford sought to admit was irrelevant and was properly excluded.

       Therefore, his Sixth Amendment right to present a defense was not violated.


                             II. Insufficiency of the Evidence
[19]   Bedford argues that there is not sufficient evidence supporting his conviction for

       aggravated battery. Specifically, he argues that the State failed to rebut his

       theory of self-defense and that the State did not prove that Bedford’s attack

       created a substantial risk of death or caused serious permanent disfigurement or

       protracted loss or impairment of a bodily member or organ. I.C. § 35-42-2-1.5.


[20]   When reviewing the sufficiency of the evidence supporting a conviction, we will

       neither reweigh the evidence nor assess witness credibility. Harbert v. State, 51

       N.E.3d 267, 275 (Ind. Ct. App. 2016). We will consider only the evidence

       supporting the judgment and any reasonable inferences that may be drawn

       therefrom, and we will affirm if a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt. Id. Additionally, when a

       defendant claims that the evidence was insufficient to rebut his self-defense

       claim, the standard of review is the same as the sufficiency standard. Shoultz v.

       State, 995 N.E.2d 647, 660 (Ind. Ct. App. 2013).


[21]   Bedford’s sufficiency argument regarding self-defense is unavailing for several

       reasons. First, a person claiming self-defense is required to show, among other

       things, that he did not provoke, instigate, or participate willingly in the

       violence. Shoultz, 995 N.E.2d at 660. Here, the jury heard evidence that

       Bedford initiated the physical confrontation by pushing Dunigan before

       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 8 of 12
       Dunigan pushed him. This fact alone would be sufficient to rebut Bedford’s

       self-defense claim.


[22]   Second, Bedford told Dunigan’s twelve-year-old daughter that he would “turn

       incest” and have sex with her, tr. p. 34, and then told Dunigan that he was

       going to make Dunigan’s daughter perform oral sex while Dunigan watched.

       Id. at 76. Thus, even if Dunigan had pushed Bedford first, Bedford still would

       not be justified in using self-defense because he provoked the confrontation.


[23]   Bedford’s argument regarding serious permanent disfigurement likewise fails.

       A permanent disfigurement is a continuing or enduring change that makes

       something less complete, perfect, or beautiful in appearance or character.

       Cornelious v. State, 988 N.E.2d 280, 283 (Ind. Ct. App. 2013). Here, Bedford

       caused a serious gash that covered Dunigan in blood and required thirteen

       staples to close. Dunigan was left with a scar on top of his bald head. This is

       sufficient evidence that Dunigan was permanently disfigured, and therefore

       there was sufficient evidence supporting this element of the aggravated battery

       statute.


                                       III. Jury Instructions
[24]   Jury instruction is a matter within the trial court’s sound discretion, and is a

       determination to which we grant “great deference.” Cline v. State, 726 N.E.2d

       1249, 1256 (Ind. 2000). In reviewing a trial court’s decision to give or refuse

       tendered instructions, we consider (1) whether the instruction correctly states

       the law; (2) whether there was evidence in the record to support the giving of

       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 9 of 12
       the instruction; and (3) whether the substance of the tendered instruction is

       covered by other instructions that are given. Chambers v. State, 734 N.E.2d 578,

       580 (Ind. 2000).


[25]   Under Indiana law, a citizen is permitted to use force in self-defense in certain

       scenarios. Ind. Code § 35-41-3-2. The trial court instructed the jury on

       subsection (c), which permits a person to use reasonable force against any other

       person to protect himself from what he reasonably believes to be the imminent

       use of unlawful force. I.C. § 35-41-3-2(c); Tr. p. 331.


[26]   Bedford also requested a self-defense instruction based on Indiana Code section

       35-41-3-2(d), which provides the following:

                A person is justified in using reasonable force, including deadly
                force, against any other person; and does not have a duty to
                retreat; if the person reasonably believes that the force is
                necessary to prevent or terminate the other person’s unlawful
                entry of or attack on the person’s dwelling, curtilage, or occupied
                motor vehicle.


       He also tendered a number of instructions that defined a dwelling, a tenant, and

       a rental unit. He sought to argue to the jury that he was defending his

       “dwelling”—the sunroom in Dunigan’s house—from Dunigan’s unlawful

       entry.


[27]   A defendant in a criminal case is entitled to have the jury instructed on any

       theory of defense that has some foundation in the evidence. Howard v. State,

       755 N.E.2d 242, 247 (Ind. Ct. App. 2001). However, a trial court does not err

       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 10 of 12
       by refusing to instruct the jury on a theory of self-defense if that theory has no

       foundation in the evidence. Id. at 248.


[28]   There was no evidence in the record that Bedford used force to protect his

       dwelling. The sunroom of Dunigan’s home is a part of Dunigan’s dwelling, not

       Bedford’s. Both Dunigan and Jenny testified that Bedford paid no rent and that

       he was invited to stay in the sunroom because he had no other place to go.

       Moreover, it is unclear to us what “unlawful entry” Bedford thinks he was

       terminating—Dunigan did not commit any unlawful entry by walking into his

       own sunroom.


[29]   Bedford was unemployed and homeless and was given a place to stay by family

       members. He began making illicit sexual comments to the young daughter of

       the homeowner and the daughter’s young friend. When asked to leave,

       Bedford told Dunigan that he would force Dunigan’s daughter to perform oral

       sex while Dunigan watched, and then physically assaulted him. This is not the

       type of behavior our legislature intended to sanction by enacting Indiana Code

       section 35-41-3-2(d), and the trial court did not err by refusing this tendered

       instruction.


                               IV. The Abstract of Judgment
[30]   Both parties agree that the abstract of judgment incorrectly states that the

       conviction for battery by means of a deadly weapon was merged into the

       conviction for aggravated battery. At the sentencing hearing, the trial court

       stated that it was vacating that conviction. We agree with Bedford that the

       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 11 of 12
       abstract of judgment should be corrected, and we remand for that limited

       purpose.


[31]   The judgment of the trial court is affirmed and remanded with instructions to

       correct the abstract of judgment to show that the conviction for battery by

       means of a deadly weapon was vacated.


       Vaidik, C.J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016   Page 12 of 12
