MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                  FILED
regarded as precedent or cited before any                          Sep 22 2016, 9:33 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Rodolfo S. Monterrosa, Jr.                               Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jimmy Isbell,                                            September 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1509-CR-1333
        v.                                               Appeal from the St. Joseph County
                                                         Court
State of Indiana,                                        The Honorable Jenny Pitts Manier,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Elizabeth Hardtke,
                                                         Magistrate

                                                         Trial Court Cause No.
                                                         71D06-1507-CM-2380




Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1333 | September 22, 2016   Page 1 of 8
      Barnes, Judge.


                                             Case Summary
[1]   Jimmy Isbell appeals his conviction for Class A misdemeanor battery. We

      affirm.


                                                    Issues
[2]   The issues before us are:


              I.      whether Isbell’s statement to a police officer should have
                      been suppressed because of an alleged Miranda violation;
                      and


              II.     whether there is sufficient evidence to sustain Isbell’s
                      conviction.


                                                     Facts
[3]   On July 2, 2015, Assistant Police Chief Charles Kulp of the Walkerton Police

      Department was dispatched to the Walkerton Municipal Building. There, Kulp

      encountered Isbell and Sherri Madi. Madi was crying, upset, and bleeding from

      her face. Kulp approached Isbell and asked him if he had hit Madi, and he

      admitted that he had. At the time Kulp asked this question, Isbell was not in

      handcuffs or in Kulp’s police car, and Kulp had not told Isbell he was not free

      to leave. Kulp did not notice any visible injuries on Isbell, nor did Isbell tell

      Kulp that Madi had struck him first.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1333 | September 22, 2016   Page 2 of 8
[4]   The State charged Isbell with Class A misdemeanor battery. At Isbell’s bench

      trial, he objected to Kulp’s testimony relating Isbell’s admission that he struck

      Madi because he had not been Mirandized at the time he made it. The trial

      court overruled this objection. During his testimony, Isbell claimed he acted in

      self-defense in response to Madi’s kicking him and putting out a lit cigarette on

      his forehead. The trial court rejected this defense and found Isbell guilty as

      charged. He now appeals.


                                                     Analysis
                                        I. Admissibility of Statement

[5]   Isbell first contends the trial court should have suppressed his admission to

      Kulp that he struck Madi.1 Because Isbell is appealing his conviction and not

      denial of a pretrial motion to suppress, the question before us is whether the

      trial court abused its discretion in admitting his statement to Kulp into

      evidence. See Hicks v. State, 5 N.E.3d 424, 427 (Ind. Ct. App. 2014), trans.

      denied. The trial court has broad discretion in ruling on the admissibility of

      evidence, and we will reverse such a ruling only when it abuses that discretion.

      Id. An abuse of discretion occurs only if a trial court’s ruling is clearly against

      the logic and effect of the facts and circumstances before it, or if the court has

      misinterpreted the law. Id. Regardless of whether the challenge is made




      1
        The State argues in part that Isbell waived this challenge because he did not immediately move to suppress
      Kulp’s testimony regarding Isbell’s statement, but instead waited until Kulp’s cross-examination to do so.
      We need not resolve whether Isbell adequately preserved his claim of error, as we readily conclude that the
      trial court properly denied the motion to suppress and overruled Isbell’s objection.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1333 | September 22, 2016         Page 3 of 8
      through a pretrial motion to suppress or by an objection at trial, we do not

      reweigh the evidence, and we consider conflicting evidence in a light most

      favorable to the trial court's ruling, but we may also consider any undisputed

      evidence that is favorable to the defendant. Id.


[6]   Isbell argues that Kulp was required to advise him of his rights under Miranda v.

      Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966), before asking whether he had

      struck Madi. Police must advise a suspect of his Miranda rights only if he or she

      is subjected to custodial interrogation. Hicks, 5 N.E.3d at 428-29. In

      determining whether a suspect was in custody for Miranda purposes, the

      ultimate inquiry is whether there was a formal arrest or a restraint on freedom

      of movement of a degree associated with a formal arrest. Id. at 429. Courts

      must examine whether a reasonable person in similar circumstances would

      believe he or she is not free to leave. Id. The objective circumstances are

      controlling, not the subjective views of the interrogating officer or the suspect.

      Id. The mere fact that police suspect an individual of having committed a crime

      does not inherently turn questioning into custodial interrogation, particularly if

      that suspicion is not communicated. State v. Hicks, 882 N.E.2d 238, 242 (Ind.

      Ct. App. 2008).


[7]   Not all police questioning pursuant to a seizure and brief investigative detention

      amounts to custodial interrogation for Miranda purposes. Jones v. State, 655

      N.E.2d 49, 55 (Ind. 1995). Specific factors that may be considered in

      determining whether a suspect was subject to custodial interrogation include:



      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1333 | September 22, 2016   Page 4 of 8
              whether and to what extent the person has been made aware that
              he is free to refrain from answering questions; whether there has
              been prolonged, coercive, and accusatory questioning, or
              whether police have employed subterfuge in order to induce self-
              incrimination; the degree of police control over the environment
              in which the interrogation takes place, and in particular whether
              the suspect’s freedom of movement is physically restrained or
              otherwise significantly curtailed; and whether the suspect could
              reasonably believe that he has the right to interrupt prolonged
              questioning by leaving the scene.


      Bean v. State, 973 N.E.2d 35, 40 (Ind. Ct. App. 2012) (citing Sprosty v. Buchler, 79

      F.3d 635, 641 (7th Cir. 1996), cert. denied), trans. denied.


[8]   There is insufficient evidence that Isbell was in custody when Kulp asked him

      whether he had hit Madi. The record indicates that Kulp first asked Madi who

      had hit her, and after receiving an answer, Kulp approached Isbell and

      immediately asked whether he had hit her. The question was asked in public

      and as part of a brief, on-the-scene investigation. Kulp did not physically

      restrain Isbell or place him in a police car prior to the question, nor did Kulp tell

      Isbell he was not free to leave. These factors demonstrate that Isbell was not in

      custody when he admitted to Kulp that he hit Madi. Thus, Isbell was not

      entitled to Miranda protections at that time. See, e.g., Hicks, 882 N.E.2d at 243

      (asking apparently intoxicated individual whether she had been driving car was

      not custodial interrogation where questioning was brief and took place in public

      setting in front of other individuals). The trial court properly overruled Isbell’s

      objection to Kulp’s testimony.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1333 | September 22, 2016   Page 5 of 8
                                      II. Sufficiency of the Evidence

[9]    Isbell also contends there is insufficient evidence to sustain his conviction.

       When reviewing a claim of insufficient evidence, we neither reweigh the

       evidence nor assess the credibility of witnesses. Bell v. State, 31 N.E.3d 495, 499

       (Ind. 2015). We consider only the evidence and reasonable inferences drawn

       therefrom that support the conviction and will affirm if there is probative

       evidence from which a reasonable fact-finder could have found the defendant

       guilty beyond a reasonable doubt. Id.


[10]   Isbell first argues there is insufficient evidence Madi sustained any bodily

       injury. Battery is elevated from a Class B to a Class A misdemeanor if it results

       in bodily injury to the victim. Ind. Code § 35-42-2-1(d)(1). “‘Bodily injury’

       means any impairment of physical condition, including physical pain.” I.C. §

       35-31.5-2-29. Isbell notes that Madi did not testify at trial and, thus, there was

       no direct evidence that she suffered any pain as a result of the battery.

       However, “[t]he State does not have to prove that the victim suffered physical

       pain in order to prove that there was bodily injury.” Tucker v. State, 725 N.E.2d

       894, 897-98 (Ind. Ct. App. 2000), trans. denied. A bruise may constitute a bodily

       injury, as may red marks and minor scratches. Id. at 898 (citing Hanic v. State,

       406 N.E.2d 335, 337-38 (Ind. Ct. App. 1980)). Here, the State introduced

       photographs showing blood on Madi’s face as a result of the battery, also blood

       appeared to have dripped onto her shirt, and small lacerations on her face.

       Even without Madi’s testimony that she suffered pain, this is sufficient evidence

       to prove that she sustained bodily injury as a result of the battery.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1333 | September 22, 2016   Page 6 of 8
[11]   Isbell also claims there was insufficient evidence to rebut his claim of self-

       defense. “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.” I.C. § 35-41-3-2(c). When a

       person raises a claim of self-defense in a case not involving deadly force, he is

       required to show three facts: (1) he was in a place where he had a right to be; (2)

       he acted without fault; and (3) he had a reasonable fear of the imminent use of

       unlawful force. Dixson v. State, 22 N.E.3d 836, 839 (Ind. Ct. App. 2014), trans.

       denied. When self-defense is raised, the State must disprove one of these three

       elements beyond a reasonable doubt. McCullough v. State, 985 N.E.2d 1135,

       1138 (Ind. Ct. App. 2013), trans. denied. The State may do this by rebutting the

       defense directly, by affirmatively showing the defendant did not act in self-

       defense, or simply by relying on its case in chief. Id. “If a person is convicted

       despite his claim of self-defense, we will reverse only if no reasonable person

       could say that self-defense was negated by the State beyond a reasonable

       doubt.” Id. A fact-finder is not required to accept a defendant’s self-serving

       testimony. Fitzgerald v. State, 26 N.E.3d 105, 110 (Ind. Ct. App. 2015).


[12]   Isbell testified that he struck Madi after she had been kicking him and after she

       pressed a lit cigarette into his forehead, allegedly because she was jealous over a

       female acquaintance of Isbell’s. At trial, Isbell apparently did have a visible

       mark of some kind on his forehead. However, Kulp testified that he did not see

       any injuries on Isbell at the time of the incident, nor did Isbell mention to Kulp

       having any injuries or that Madi had attacked him first. The trial court was


       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1333 | September 22, 2016   Page 7 of 8
       under no obligation to accept Isbell’s testimony, particularly in light of Kulp’s

       testimony. We cannot say the trial court acted unreasonably in rejecting Isbell’s

       self-defense claim.


                                                 Conclusion
[13]   The trial court did not err in overruling Isbell’s objection to Kulp’s testimony

       relating Isbell’s admission to hitting Madi, and there is sufficient evidence to

       sustain his conviction for Class A misdemeanor battery. We affirm.


[14]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1333 | September 22, 2016   Page 8 of 8
