MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be                                  Feb 14 2017, 10:40 am
regarded as precedent or cited before any                                   CLERK
court except for the purpose of establishing                            Indiana Supreme Court
                                                                           Court of Appeals
the defense of res judicata, collateral                                      and Tax Court


estoppel, or the law of the case.




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

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Billy E. Oliver,                                         February 14, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1606-CR-1519
        v.                                               Appeal from the Elkhart Circuit
                                                         Court
State of Indiana,                                        The Honorable Terry C.
Appellee-Plaintiff.                                      Shewmaker, Judge
                                                         Trial Court Cause No.
                                                         20C01-1603-CM-390



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1519 | February 14, 2017        Page 1 of 8
                                          Case Summary
[1]   On the morning of February 27, 2016, Appellant-Defendant Billy E. Oliver

      became engaged in a domestic dispute with his then-girlfriend Jeanette Gordon.

      During this dispute, Gordon suffered a severe black eye after being pushed

      against a wall, knocked to the ground, and repeatedly hit by Oliver. Oliver was

      subsequently charged with domestic battery. Following a bench trial, the trial

      court found Oliver guilty as charged and sentenced him to 180 days in jail.


[2]   On appeal, Oliver contends that the trial court abused its discretion excluding

      certain proffered evidence at trial. Oliver also contends that his sentence is

      inappropriate in light of the nature of his offense and his character. We affirm.



                            Facts and Procedural History
[3]   In February of 2015, Gordon and Oliver were involved in a romantic

      relationship when they decided to move in together. Approximately one year

      later, on the morning of February 27, 2016, Oliver decided to move out of the

      couple’s shared apartment. Oliver began to move belongings that he intended

      to take with him to an area near the backdoor of the apartment.


[4]   While Gordon was assisting Oliver in moving belongings to the backdoor area,

      a dispute broke out regarding ownership of a television that Oliver intended to

      take with him. Claiming that the television belonged to her, Gordon attempted

      to grab the television. In response, Oliver pushed Gordon against a wall,

      knocking her to the ground. Oliver then climbed on top of Gordon and began

      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1519 | February 14, 2017   Page 2 of 8
      repeatedly “hitting [her] with his fist in [her] temple area.” Tr. p. 27. As a

      result of Oliver’s actions, Gordon suffered “a severe black eye.” Tr. p. 29.


[5]   At some point, police were dispatched to the scene of the altercation. Upon

      arriving at the scene, Elkhart City Police Officer Corporal Jason Tripp observed

      that Gordon was “holding her face” and “appeared to be in pain.” Tr. p. 11.

      Corporal Tripp described Gordon a being “hysterical.” Tr. p. 11. Corporal

      Tripp observed that Gordon “had injuries, she had swelling of her left eye, she

      had a mark above her left eye, and there was blood on her shirt.” Tr. p. 11.


[6]   On May 1, 2016, Appellee-Plaintiff the State of Indiana (“the State”) charged

      Oliver with Class A misdemeanor domestic battery. Following a bench trial,

      Oliver was found guilty as charged. He was subsequently sentenced to a 180-

      day term of imprisonment. This appeal follows.


                                   Discussion and Decision
                                  I. Admission of Evidence
[7]   Oliver contends that the trial court abused its discretion in excluding certain

      proffered evidence at trial.

              The admission or exclusion of evidence is entrusted to the
              discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67
              (Ind. Ct. App. 2004). We will reverse a trial court’s decision only
              for an abuse of discretion. Id. We will consider the conflicting
              evidence most favorable to the trial court’s ruling and any
              uncontested evidence favorable to the defendant. Taylor v. State,
              891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of
              discretion occurs when the trial court’s decision is clearly against

      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1519 | February 14, 2017   Page 3 of 8
              the logic and effect of the facts and circumstances before the
              court or it misinterprets the law. Id. In determining whether an
              error in the introduction of evidence affected an appellant’s
              substantial rights, we assess the probable impact of the evidence
              on the jury. Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct.
              App. 2002). Admission of evidence is harmless and is not
              grounds for reversal where the evidence is merely cumulative of
              other evidence admitted. Pavey v. State, 764 N.E.2d 692, 703
              (Ind. Ct. App. 2002).


      Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial

      court’s ruling will be upheld if it is sustainable on any legal theory supported by

      the record, even if the trial court did not use that theory.” Rush v. State, 881

      N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing Gonser v. State, 843 N.E.2d 947, 950

      (Ind. Ct. App. 2006)).


[8]   On appeal, Oliver argues that the trial court abused its discretion in excluding

      evidence relating to (1) prior bad acts allegedly committed by Gordon and (2)

      Gordon’s mental state. Specifically, Oliver asserts that such evidence was

      relevant to his claim of self-defense. We must note, however, that we are

      perplexed by Oliver’s assertion in this regard on appeal because review of the

      record reveals that Oliver did not raise a claim of self-defense at trial. In fact, if

      he had, such a claim would have been inconsistent with his claim that he did

      not touch or hit Gordon.


[9]   “Self-defense is recognized as a valid justification for an otherwise criminal

      act.” Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999) (citing Ind. Code § 35-41-

      3-2).

      Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1519 | February 14, 2017   Page 4 of 8
               When raised, a defendant must establish that he or she was in a
               place where he or she had the right to be, acted without fault, and
               was in reasonable fear or apprehension of death or great bodily
               harm. See Brooks v. State, 683 N.E.2d 574, 577 (Ind. 1997); Lilly v.
               State, 506 N.E.2d 23, 24 (Ind. 1987). Once a defendant claims
               self-defense, the State bears the burden of disproving at least one
               of these elements beyond a reasonable doubt for the defendant’s
               claim to fail. [Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999)];
               Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997). 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.
               Lilly, 506 N.E.2d at 24; Davis v. State, 456 N.E.2d 405, 408 (Ind.
               1983).


       Id. at 699-700. Self-defense is an affirmative defense which cannot be raised for

       the first time on appeal. See Lafary v. Lafary, 476 N.E.2d 155, 159 (Ind. Ct. App.

       1985) (providing that affirmative defenses must be raised at trial and cannot be

       raised for the first time on appeal).


[10]   In order to have raised a self-defense claim at trial, Oliver would have had to

       have acknowledged that he struck Gordon but argued that he was justified in

       doing so because he was in a place where he had a right to be, acted without

       fault, and was in reasonable fear or apprehension of death or serious bodily

       harm. Oliver made no such acknowledgements or arguments at trial. Instead,

       the record reveals that Oliver consistently stated that he did not touch or strike

       Gordon. Given that Oliver did not raise a self-defense claim at trial, he has

       waived such a claim on appeal. See id.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1519 | February 14, 2017   Page 5 of 8
                              II. Appropriateness of Sentence
[11]   Oliver also contends that his 180-day sentence is inappropriate. In challenging

       the appropriateness of his sentence, Oliver asserts that his sentence is

       inappropriate because “the nature of the offense involved a mutual altercation”

       between the parties. Appellant’s Br. p. 11. While it may be true that both

       parties bore some responsibility in the underlying dispute, we do not agree that

       such a fact, alone, renders Oliver’s 180-day sentence inappropriate.


[12]   Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, the

       Court finds that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender.” In analyzing such claims, we “‘concentrate

       less on comparing the facts of [the case at issue] to others, whether real or

       hypothetical, and more on focusing on the nature, extent, and depravity of the

       offense for which the defendant is being sentenced, and what it reveals about

       the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.

       2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.

       denied). The defendant bears the burden of persuading us that his sentence is

       inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).


[13]   With respect to the nature of Oliver’s offense, the record reveals that Oliver

       struck his then-girlfriend, Gordon, with sufficient force to cause significant

       bruising to Gordon’s eye. The altercation began when Oliver attempted to

       move property allegedly belonging to Gordon, i.e., a television, out of her


       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1519 | February 14, 2017   Page 6 of 8
       residence without her permission.1 During the altercation, Gordon suffered a

       severe black eye after being pushed against a wall, knocked to the ground, and

       repeatedly hit by Oliver. Oliver attempts to minimize the serious nature of his

       offense on appeal by claiming that the parties engaged in a mutual altercation

       that resulted in injury to both he and Gordon. Such a claim, however, is

       inconsistent with Oliver’s trial testimony that he never struck or hit Gordon.


[14]   As for Oliver’s character, the record reveals that Oliver has a significant

       criminal history that includes both misdemeanor and felony convictions as well

       as numerous prior probation violations. Oliver’s criminal history includes

       misdemeanor convictions for possession of marijuana, operating a vehicle

       without proof of financial responsibility, common nuisance, failure to appear,

       improper use of an interim license plate, and five counts of check deception.

       Oliver’s criminal history also includes convictions for Class A felony delivery of

       methamphetamine in excess of three grams and Class D felony domestic

       battery–committed in the presence of a child less than sixteen years old. In

       addition, the record reveals that Oliver has violated the terms of his probation

       of numerous occasions. In fact, the record reveals that Oliver was on probation

       at the time of the February 27, 2016 altercation and that he violated the terms of

       his probation by committing the instant offense.




       1
         It is unclear to whom the television actually belonged with both Oliver and Gordon claiming that the
       television in question belonged to them.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1519 | February 14, 2017         Page 7 of 8
[15]   Oliver’s criminal history indicates that he has a disdain not only for the criminal

       justice system, but also for the rights and safety of others. Moreover, the

       Elkhart County Probation Department indicated that a risk assessment of

       Oliver placed him “in the MODERATE risk category to re-offend.”

       Appellant’s App. Vol. II Confidential, p. 40. Upon review, we conclude that

       Oliver has failed to prove that his sentence is inappropriate in light of the nature

       of his offense and his character.



                                               Conclusion
[16]   In sum, we conclude that (1) the trial court acted within its discretion in

       excluding certain evidence proffered evidence from trial and (2) Oliver has

       failed to prove that his 180-day sentence is inappropriate in light of the nature of

       his offense and his character.


[17]   The judgment of the trial court is affirmed.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 20A03-1606-CR-1519 | February 14, 2017   Page 8 of 8
