Pursuant to Ind. Appellate Rule 65(D),                             Jun 10 2013, 8:54 am
this Memorandum Decision shall not be
regarded as precedent or cited before 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:

JAY RODIA                                           GREGORY F. ZOELLER
Indianapolis, Indiana                               Attorney General of Indiana

                                                    JAMES B. MARTIN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

CAROL MILLER,                                       )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A05-1210-CR-523
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Annie Christ-Garcia, Judge
                             Cause No. 49F24-1109-FD-61953



                                          June 10, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Carol Miller (“Miller”) was convicted after a jury trial of pointing a firearm1 as a

Class A misdemeanor. She appeals, raising the following restated issue for our review:

whether the State presented sufficient evidence to disprove Miller’s claim of self-defense.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       In August 2011, Gregory Cox (“Cox”) worked as a tow truck operator for A-Mass

Towing, which had a contract with Hanover North, a subdivision in Marion County.

Under the contract, A-Mass Towing would patrol for illegally parked vehicles in the

subdivision. Vehicles could not be legally parked on the streets in the subdivision

because the streets were too narrow, and parked vehicles could impede emergency

vehicles. Cox would tag an illegally parked vehicle with a warning, but would not tag a

vehicle more than once in a twenty-four-hour period. After a vehicle had been tagged

twice, Cox would impound the illegally parked vehicle after observing a third violation.

       On the night of August 30, 2011, Cox was patrolling Hanover North when he

observed a blue Ford Explorer (“the Explorer”) parked on the street and facing oncoming

traffic. Cox could see where a tag had been removed from the front driver’s side window

of the Explorer. He then verified with a tag list and a call to his employer that the

Explorer was still in violation for the same breach for which it had been previously

tagged. Cox was wearing a blue uniform with reflective stripes and yellow borders, and

his tow truck was marked with several company logos and was equipped with flashing


       1
           See Ind. Code § 35-47-4-3.


                                            2
safety lights. After verifying that the Explorer was still in violation for the same breach,

Cox backed up to it to begin towing it.

       Cox had the Explorer pulled approximately halfway up onto the bed of his tow

truck when a neighbor knocked on the door of 2854 Ludwig Drive to alert the owner that

the Explorer was being towed. Miller exited the home with a gun in a holster on her hip,

and she asked Cox what was going on. Cox told her that the Explorer was being

impounded and provided her with the location of the impound lot.            Miller became

agitated, and Cox explained to her that the Explorer had “already been tagged a couple

times, it’s being impounded, . . . I’m just the tow truck driver.” Tr. at 21. Because he

had observed Miller’s firearm, Cox attempted to put some distance between himself and

Miller by walking to the other side of his truck. Miller followed him around his truck and

became more agitated when she realized that Cox was not going to release the Explorer

back to her at that time. Cox walked behind the Explorer, and Miller said, “no, no,

you’re not going to tow my vehicle.” Id. at 22. She then pulled her firearm out of its

holster, “racked” it (meaning she released the safety and pulled the slide back to load a

round into the chamber of the weapon) and pointed it at Cox from a distance of six to

eight feet. When Cox heard the sound of Miller racking her firearm, he immediately

began to turn away from her, put his hands in the air, and said, “okay, okay, no problem

I’ll put [the Explorer] down, not a problem.” Id. at 24. Cox was trained to try to calm

people down when they became angry with him while performing his job. Cox did not

approach Miller at any point during their interaction. Miller then looked like she was



                                             3
putting her firearm back into the holster, but then raised it again and said, “I’m serious

now.” Id. at 25.

       Cox walked around the front of his truck to put distance between Miller and

himself. When he had made sure there was sufficient distance between them, he called

911 to report the altercation and that it involved a gun. Cox waited in his truck and then

in a neighbor’s driveway until the police arrived. When the police arrived, Miller was

located in the driver’s seat of the Explorer, which was still halfway onto the tow truck.

Police officers asked Miller to show her hands, but she did not comply until after several

requests were made.     Officers secured Miller’s firearm, which was still loaded and

contained a round in the chamber.

       The State charged Miller with pointing a firearm as a Class D felony. A jury trial

was held, and at the conclusion of the trial, the jury found Miller guilty as charged. The

trial court entered judgment as a Class A misdemeanor and sentenced Miller to 365 days,

with 351 days suspended to probation and fourteen days executed, all of which was

credited as time served. Miller now appeals.

                            DISCUSSION AND DECISION

       Miller argues that the State failed to present sufficient evidence to rebut her claim

of self-defense. We review a challenge to the sufficiency of the evidence to rebut a claim

of self-defense using the same standard as for any claim of insufficient evidence.

Pinkston v. State, 821 N.E.2d 830, 841 (Ind. Ct. App. 2004) (citing Wilson v. State, 770

N.E.2d 799, 801 (Ind. 2002)), trans. denied. We neither reweigh the evidence nor judge

the credibility of the witnesses. Id. If there is sufficient evidence of probative value to

                                             4
support the conclusion of the trier-of-fact, then the verdict will not be disturbed. Id. at

841-42.

       Miller contends that she presented a valid claim of self-defense, which was not

rebutted by the State. She claims that there was insufficient evidence presented for the

jury to find beyond a reasonable doubt that the State had disproved her self-defense

claim. Specifically, Miller alleges that the evidence showed that, when she went outside

to determine what was happening with her vehicle, she became fearful when, Cox, who

was a large man, “stood on the balls of his feet, with his chest puffed out and moved

toward her.” Appellant’s Br. at 10. This was why she unholstered her weapon and

pointed it at Cox. She further asserts that she put her weapon back in the holster as soon

as she no longer viewed Cox as a threat.

       We note that a valid claim of self-defense is a legal justification for an act that is

otherwise defined as “criminal.” Pinkston, 821 N.E.2d at 842. 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. Id. (citing Wilson, 770 N.E.2d at 800).

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. The State may satisfy its

burden by either rebutting the defense directly or relying on the sufficiency of evidence in

its case-in-chief. Id. (citing Butler v. State, 547 N.E.2d 270, 271 (Ind.1989)).

       Here, the evidence most favorable to the verdict showed that, as Cox was

performing his job of impounding vehicles that were in violation of the parking policy of

                                             5
Hanover North, which he was authorized to do under a contract between his employer

and the subdivision, he was confronted by Miller. Cox testified that, at no point, did he

ever move toward Miller during their interaction. Tr. at 43-44. Instead, he stated that he

observed Miller’s holstered forearm immediately, and attempted to distance himself from

her. Id. at 20-22. When Miller realized that Cox was not going to release the Explorer,

she told Cox, “no, no, you’re not going to tow my vehicle” and pointed her firearm at

Cox. Id. at 22. The jury could have reasonably inferred from this evidence that Miller

became angry with Cox, who was merely doing his job by impounding the Explorer, and

pointed her firearm at him to compel him to stop.

      Miller’s entire argument is merely a request for this court to reweigh the evidence

and to judge the credibility of the witnesses by finding her to be more credible than Cox,

which we cannot do. Pinkston v. State, 821 N.E.2d at 841. We conclude that the State

presented sufficient evidence to rebut Miller’s claim of self-defense as the evidence

presented showed that Miller was not in fear that Cox would harm her, but was merely

angry that he was towing the Explorer.     The evidence was therefore sufficient for the

jury to find beyond a reasonable doubt that the State rebutted Miller’s claim of self-

defense and to support her conviction for pointing a firearm.

      Affirmed.

VAIDIK, J., and PYLE, J., concur.




                                            6
