MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D),                            Sep 21 2016, 8:38 am
this Memorandum Decision shall not be                                 CLERK
regarded as precedent or cited before any                         Indiana Supreme Court
                                                                     Court of Appeals
court except for the purpose of establishing                           and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                       Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

K.G.,                                                    September 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1603-JV-414
        v.                                               Appeal from the Marion Superior
                                                         Court, Juvenile Division
State of Indiana,                                        The Honorable Marilyn A.
Appellee-Plaintiff.                                      Moores, Judge
                                                         The Honorable Gary Chavers,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49D09-1508-JD-1446



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016   Page 1 of 6
[1]   Following a bench trial, K.G. was adjudicated a delinquent child for

      committing what would be Level 3 felony aggravated battery if committed by

      an adult. K.G. now appeals, contending that the State presented insufficient

      evidence to rebut her claim of self-defense.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On June 16, 2015, K.M. was in a car with several of her friends heading to meet

      up with more friends at a nearby apartment complex. Along the way, K.M.

      and her friends saw D.L. walking down the street. There was some simmering

      tension between K.M. and D.L. because a mutual friend had told K.M. that

      D.L. wanted to fight K.M. K.M. and her friends pulled over and got out, and

      K.M. asked D.L. if she wanted to fight her. D.L. said she did not want to fight,

      and K.M. and her friends returned to the car and prepared to leave.

      Meanwhile, D.L. called her best friend, fifteen-year-old K.G., and told her that

      K.M. and some boys had pulled up and were trying to fight her. K.G., who

      had been in a fight with K.M. the previous summer, told D.L. she was on her

      way.


[4]   After speaking with K.G., D.L. called one of K.M.’s friends out of the car.

      When he got out of the car, K.M. and the rest of the occupants followed. K.G.,

      who lived very close by, then came running down the street. At that time, D.L.

      asked K.M. whether she wanted to fight her. D.L. kept “walking into” K.M.,

      and D.L. had a “jaw steel quick link,” which is more commonly referred to as a

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016   Page 2 of 6
      carabiner and can be used as brass knuckles, in her hand. Transcript at 8, 56.

      K.G. pulled D.L. aside and took the carabiner from her, stating that D.L. could

      seriously hurt K.M. with it and consequently “get in some really big trouble”.

      Id. at 82.


[5]   D.L. and K.M. again squared off and continued arguing. Eventually, one of

      the boys who had arrived with K.M. pushed K.M. into D.L., and the girls

      began fighting. Several of the bystanders, including K.G., recorded parts of the

      fight with their cell phones.1 At one point, K.G. got in the middle of the fight

      and kicked K.M. in the stomach. One of the boys dragged K.G. away while

      K.M. and D.L. continued to fight. K.G. then re-entered the fight and tried to

      separate the girls, all while still gripping the carabiner in her hand. As K.G.

      and D.L. backed away from K.M., D.L. spat at K.M. When K.M. then tried to

      walk toward D.L. and K.G., one of the boys grabbed her from behind and

      dragged her away. K.M. broke free and again walked toward K.G. and spat at

      her. In response, K.G. shouted “b*tch, you (indiscernible) f*cked up” and

      threw the carabiner at K.M.’s face, striking her in the left eye. Exhibit Volume,

      State’s Ex. 1. K.M. immediately fell to the ground, and as she lay there

      bleeding, K.G. repeatedly screamed “that b*tch just spit in my mother f*cking

      face” and spat twice in K.M.’s direction. Id. K.G. and D.L. then left together.




      1
          Four such videos were placed into evidence at the fact-finding hearing.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016   Page 3 of 6
      K.M. was later transported to the hospital by ambulance, and despite

      undergoing two surgeries, she has been rendered virtually blind in her left eye.


[6]   As a result of these events, the State filed a petition alleging that K.G. was a

      delinquent child for committing acts that would be Level 3 felony aggravated

      battery and class B misdemeanor battery by bodily waste if committed by an

      adult. A fact-finding hearing was held on December 4 and 8, 2015, at which

      K.G. argued that she acted in self-defense. On January 7, 2016, the juvenile

      court entered a true finding as to the aggravated battery allegation and a not

      true finding as to the battery by bodily waste allegation. A dispositional hearing

      was held on February 3, 2016, and K.G. was placed on probation. K.G. now

      appeals.


                                                  Discussion


[7]   On appeal, K.G. argues that the State presented insufficient evidence to rebut

      her self-defense claim. The standard for reviewing a challenge to the sufficiency

      of evidence to rebut a claim of self-defense is the same standard used for any

      claim of insufficient evidence. Wallace v. State, 725 N.E.2d 837, 840 (Ind.

      2000). 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, the judgment will not be disturbed. Id. “A valid claim of self-

      defense is legal justification for an otherwise criminal act.” Id.


[8]   To prevail on her self-defense claim, K.G. must show that she: (1) was in a

      place where he had a right to be; (2) acted without fault; and (3) was in

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016   Page 4 of 6
       reasonable fear or apprehension of bodily harm. Henson v. State, 786 N.E.2d

       274, 277 (Ind. 2003); see also Ind. Code. § 35-41-3-2. A person who provokes,

       instigates, or participates willingly in the violence does not act without fault for

       the purposes of self-defense. Shoultz v. State, 995 N.E.2d 647, 660 (Ind. Ct.

       App. 2013). Additionally, the degree of force used must be proportionate to the

       requirements of the situation, and a claim of self-defense will fail where a

       person has used more force than is reasonably necessary to repel an attack.

       Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014), trans. denied.


[9]    When a self-defense claim is raised and finds support in the evidence, the State

       bears 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 its burden by

       offering evidence directly rebutting the defense, by affirmatively showing that

       the defendant did not act in self-defense, or by relying upon the sufficiency of

       the evidence from its case-in-chief. Miller v. State, 720 N.E.2d 696, 700 (Ind.

       1999). If a defendant is convicted despite a claim of self-defense, we will

       reverse only if no reasonable person could say that self-defense was negated

       beyond a reasonable doubt. Wilson, 770 N.E.2d at 801.


[10]   K.G.’s arguments on appeal are nothing more than a request to reweigh the

       evidence, which we will not do on appeal. When D.L. called K.G. and told her

       that K.M. was trying to fight her, K.G. ran to the scene. When D.L. and K.M.

       started to fight, K.G. used her cell phone to record the fight until she chose to

       enter the fray herself and kicked K.M. in the stomach. When K.M. spat at her,

       K.G. retaliated by throwing the carabiner, which K.G. knew could seriously

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-JV-414 | September 21, 2016   Page 5 of 6
       injure someone, at K.M.’s face. As K.M. lay on the ground bleeding, K.G.

       continued to scream obscenities and spat twice in K.M.’s direction. This amply

       supports a finding that K.G. did not act without fault, and K.G.’s demeanor

       both before and after throwing the carabiner supports a finding that she acted

       out of rage, not fear. The evidence also supports a finding that K.G. used a

       disproportionate degree of force against K.M. Accordingly, the State presented

       sufficient evidence to support the juvenile court’s finding that she did not act in

       self-defense.


[11]   Judgment affirmed.


[12]   Bradford, J. and Pyle, J., concur.




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