MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                              Apr 19 2017, 9:04 am
court except for the purpose of establishing
                                                                           CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
estoppel, or the law of the case.                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tony David Mitchell,                                     April 19, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A01-1605-CR-1051
        v.                                               Appeal from the Jackson Circuit
                                                         Court
State of Indiana,                                        The Honorable Richard W.
Appellee-Plaintiff                                       Poynter, Judge
                                                         Trial Court Cause No.
                                                         36C01-1406-FA-11



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A01-1605-CR-1051 | April 19, 2017          Page 1 of 8
[1]   Tony Mitchell was convicted of Class B Felony Attempted Aggravated Battery1

      and Class B Felony Aggravated Battery.2 Mitchell appeals, arguing that there

      was insufficient evidence to support his convictions and that his sentence was

      inappropriate. Finding sufficient evidence and that his sentence was not

      inappropriate, we affirm.


                                                          Facts
[2]   On the evening of May 26, 2014, Richard Atkins went to Mitchell’s camper.

      Mitchell was there with Shannon Philpott; his two teenage daughters; his son;

      and his friends, Charlie Prewitt and Teri Holland. Mitchell and Prewitt were

      walking on the unpaved driveway as Atkins began to drive toward the camper.

      The three men spoke briefly, and Mitchell invited Atkins to drive to his camper.

      Atkins did so while Mitchell and Prewitt walked there.


[3]   The three men talked in a room that was built onto the camper. Atkins said he

      was going inside to talk to Philpott and Holland. He appeared happy and in a

      good mood. After about ten or fifteen minutes of conversation, Atkins asked

      whether anyone wanted to smoke marijuana with him. Mitchell, who was

      outside at the camper door, became angry and told Atkins that he needed to

      leave. Mitchell then entered the camper and told Atkins that “he would gut

      him like a fish.” Tr. Vol. III p. 364. Mitchell began shoving Atkins out of the




      1
          Ind. Code § 35-42-2-1.5 (2014); Ind. Code § 35-41-5-1 (2014).
      2
          I.C. § 35-42-2-1.5 (2014).


      Court of Appeals of Indiana | Memorandum Decision 36A01-1605-CR-1051 | April 19, 2017   Page 2 of 8
      camper. Atkins exited the camper, talking with Prewitt as he did so. Atkins

      bent down to pet Mitchell’s dog, who was sitting outside; when he stood up,

      Mitchell was behind him. Mitchell cut Atkins’s right arm with a knife; the cut

      reached the muscle and had to be treated with stitches and staples.


[4]   Atkins did not confront Mitchell after Mitchell cut him but instead walked

      toward his vehicle. As he was walking, he tripped over a rut in the ground.

      Prewitt helped Atkins to his feet and supported him to his vehicle. Atkins was

      dazed and confused at this point. With some effort, he was able to put the keys

      in the ignition, and Prewitt helped him turn on his headlights because the

      switch was broken. Meanwhile, Mitchell was yelling at Atkins to “get the ‘f’ off

      of his property”; Mitchell then retrieved a shotgun and fired a “warning shot”

      into the air. Id. at 209, 330. Prewitt told Mitchell to put away his gun and tried

      to take the gun from him. At the same time, as Atkins was backing out of the

      driveway, his vehicle became stuck on a small tree near the edge of the

      driveway. Trying to free his vehicle, Atkins drove forward a few feet toward

      the camper, so that he was about ten to fifteen feet away from Mitchell.

      Mitchell, who still had his shotgun, pointed it toward Atkins’s vehicle and fired

      a second shot. The projectile entered the vehicle’s windshield in front of the

      steering wheel. Atkins was eventually able to free his vehicle and drive away.


[5]   The State charged Mitchell with Class B Felony attempted aggravated battery

      and Class B Felony aggravated battery. Following a March 8-10, 2016, jury

      trial, the jury found him guilty of both offenses. Sentencing took place on April



      Court of Appeals of Indiana | Memorandum Decision 36A01-1605-CR-1051 | April 19, 2017   Page 3 of 8
      7, 2016, during which the trial court imposed two concurrent ten-year

      sentences. Mitchell now appeals.


                                   Discussion and Decision
                               I. Sufficiency of the Evidence
[6]   Mitchell challenges the sufficiency of the evidence, contending that the State

      failed to rebut his claim of self-defense. The standard of review for a challenge

      to the sufficiency of evidence to rebut a claim of self-defense is the same as the

      standard for any sufficiency of the evidence claim. Wilson v. State, 770 N.E.2d

      799, 801 (Ind. 2002). 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, then the verdict will not be disturbed. Id.


[7]   To convict Mitchell of Class B aggravated battery, the State was required to

      prove beyond a reasonable doubt that he knowingly or intentionally inflicted

      injury on a person that created a substantial risk of death or caused serious

      permanent disfigurement or protracted loss or impairment of the function of a

      bodily member or organ. I.C. § 35-42-2-1.5 (2014). To convict Mitchell of

      attempted aggravated battery, the State was required to prove beyond a

      reasonable doubt that Mitchell, with the intent to commit aggravated battery,

      engaged in conduct that constituted a substantial step toward the commission of

      the crime. I.C. § 35-41-5-1 (2014). The substantial step element of attempt

      requires proof of any overt act beyond mere preparation and in furtherance of



      Court of Appeals of Indiana | Memorandum Decision 36A01-1605-CR-1051 | April 19, 2017   Page 4 of 8
      the intent to commit the crime. Jackson v. State, 683 N.E.2d 560, 566 (Ind.

      1997).


[8]   Under the affirmative defense of self-defense, a person is justified in using

      reasonable force against any other person to protect himself or a third person

      from what he reasonably believes to be the imminent use of unlawful force.

      Ind. Code § 35-41-3-2(c). A person is justified in using reasonable force,

      including deadly force, against any other person, and does not have a duty to

      retreat, if he reasonably believes that the force is necessary to prevent or

      terminate the other person’s unlawful entry of or attack on his dwelling. I.C. §

      35-41-3-2(d). 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. Wilson, 770 N.E.2d at 800.


[9]   Mitchell’s conviction for aggravated battery was for cutting Atkins’s arm with a

      knife. After Atkins asked whether anyone wanted to smoke marijuana,

      Mitchell told him to leave. Atkins did leave, and as he walked away, Mitchell

      cut Atkins’s arm with his knife. The witnesses—Atkins, Prewitt, Holland,

      Philpott, and one of Mitchell’s daughters—all testified that Atkins did not act

      aggressively toward Mitchell. Atkins did not threaten Mitchell or the others

      present in any way. The record indicates that Mitchell was the only aggressor

      in this encounter, and that he cut Atkins from behind as Atkins attempted to

      leave the property. A claim of self-defense cannot be supported when the

      evidence clearly indicates that the defendant knowingly and intentionally



      Court of Appeals of Indiana | Memorandum Decision 36A01-1605-CR-1051 | April 19, 2017   Page 5 of 8
       attacked his victim in the back and the victim did nothing to provoke the attack.

       Cooper v. State, 854 N.E.2d 831, 838 (Ind. 2006).


[10]   Mitchell’s conviction for attempted aggravated battery was for shooting a

       shotgun into Atkins’s vehicle. The evidence again shows that Mitchell was the

       only aggressor when he shot his shotgun. After Mitchell cut Atkins, Atkins

       managed to get to his vehicle in order to leave. While Atkins was in his vehicle

       but had not yet left the property, Mitchell retrieved his shotgun, loaded it, and

       fired a shot into the air. Although Prewitt tried to take the gun away from

       Mitchell, Mitchell maintained possession of it. As Atkins was trying to leave,

       his vehicle got stuck, and he tried to free it by driving forward. Mitchell then

       shot the gun into Atkins’s front windshield; the bullet hole was located directly

       in front of the steering wheel. Because Atkins was already trying to leave the

       premises and was not displaying an imminent use of unlawful force against

       Mitchell or any other person present, Mitchell’s argument that he was

       defending himself is again unavailing.


[11]   For each conviction, the evidence also rebuts Mitchell’s claim that he was using

       self-defense to prevent Atkins’s unlawful entry of or attack on his dwelling.

       Atkins was leaving Mitchell’s camper and walking toward his own vehicle in

       order to leave the premises when Mitchell cut him. Atkins was in his vehicle

       and still trying to leave when Mitchell shot his shotgun at him. Under these

       circumstances, the force Mitchell used was not reasonable or justified, and he

       could not reasonably believe that Atkins was about to imminently use unlawful



       Court of Appeals of Indiana | Memorandum Decision 36A01-1605-CR-1051 | April 19, 2017   Page 6 of 8
       force against him or his property. We find that the evidence is sufficient to

       rebut Mitchell’s self-defense claims and to support his convictions.


                                         II. Appropriateness
[12]   Mitchell argues that the sentence imposed by the trial court is inappropriate in

       light of the nature of the offenses and his character. Indiana Appellate Rule

       7(B) provides that this Court may revise a sentence if it is inappropriate in light

       of the nature of the offense and the character of the offender. We must

       “conduct [this] review with substantial deference and give ‘due consideration’

       to the trial court's decision—since the ‘principal role of [our] review is to

       attempt to leaven the outliers,’ and not to achieve a perceived ‘correct’

       sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014) (quoting

       Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal citations

       omitted).


[13]   Mitchell was convicted of two Class B felonies. For each, he faced a sentence

       of six to twenty years imprisonment, with an advisory term of ten years. Ind.

       Code § 35-50-2-5(a). The trial court imposed two advisory concurrent ten-year

       terms.


[14]   With respect to the nature of the offenses, Mitchell unnecessarily and

       dramatically escalated a situation when he attacked Atkins in two different

       ways when Atkins, who was unarmed, was peacefully trying to leave the

       premises. As a result of Mitchell’s knife attack, Atkins suffered an arm injury

       that reached his muscle and was thirteen inches long; Atkins required nine

       Court of Appeals of Indiana | Memorandum Decision 36A01-1605-CR-1051 | April 19, 2017   Page 7 of 8
       stitches and twenty-five staples. After Atkins was in his vehicle trying to drive

       away, Mitchell retrieved his shotgun and fired directly into the driver’s side of

       Atkins’s vehicle. The nature of the offenses does not aid Mitchell’s argument.


[15]   With respect to Mitchell’s character, he has one prior felony conviction and

       seven prior misdemeanors. Mitchell has previously been found in contempt of

       an order requiring him to complete substance abuse treatment and has more

       than once failed to appear in court, causing warrants to be issued. He has had

       the benefit of substance abuse treatment, home detention, community service,

       and probation, which he has violated twice. We acknowledge that Mitchell’s

       current convictions are more egregious than the ones in his criminal history, yet

       in this case, he continued to try to harm Atkins even after he had inflicted

       serious injury on Atkins. We also acknowledge that Mitchell’s incarceration

       may pose a hardship to his family, but many people convicted of serious crimes

       have one or more children, and absent special circumstances, trial courts are

       not required to find that imprisonment will result in an undue hardship.

       Dowdell v. State, 720 N.E.2d 1146, 1154 (Ind. 1999). Mitchell has not asserted

       any special circumstances here. We do not find that Mitchell’s character aids

       his argument. Therefore, we find that the aggregate ten-year sentences imposed

       by the trial court not inappropriate in light of the nature of the offenses and his

       character.


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


       Barnes, J., and Crone, J., concur.

       Court of Appeals of Indiana | Memorandum Decision 36A01-1605-CR-1051 | April 19, 2017   Page 8 of 8
