MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                            FILED
regarded as precedent or cited before any                               Feb 07 2018, 8:30 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark K. Phillips                                         Curtis T. Hill, Jr.
Boonville, Indiana                                       Attorney General of Indiana

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Trent M. Summers,                                        February 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A01-1709-CR-2021
        v.                                               Appeal from the Dubois Circuit
                                                         Court
State of Indiana,                                        The Honorable Nathan A.
Appellee-Plaintiff.                                      Verkamp, Judge
                                                         Trial Court Cause No.
                                                         19C01-1607-F6-575



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A01-1709-CR-2021 | February 7, 2018         Page 1 of 5
                                       Statement of the Case
[1]   Trent M. Summers appeals his conviction for battery, as a Level 6 felony,

      following a jury trial. Summers raises a single issue for our review, namely,

      whether the State presented sufficient evidence to rebut his claim of self-

      defense. We affirm.


                                 Facts and Procedural History
[2]   In the late evening of July 9, 2016, and early morning of July 10, Jonathon

      Wirthwein and some of his friends were at the Snaps restaurant and bar in

      Jasper. Wirthwein and his friends had been drinking and were “goof-balling

      around.” Tr. Vol. 2 at 217. Summers was also at the bar. At some point,

      Wirthwein obtained a bottle of lime juice, and he squirted lime juice on

      Summers’ chest and arm. In response, Summers punched Wirthwein in the

      face and broke his nose.


[3]   On July 11, the State charged Summers with battery, as a Level 6 felony. At his

      ensuing jury trial, Summers asserted the affirmative defense of self-defense, but

      a jury rejected his defense and found him guilty. The trial court entered its

      judgment of conviction and sentenced Summers to one year suspended to

      probation. This appeal ensued.


                                     Discussion and Decision
[4]   On appeal, Summers asserts that the State failed to present sufficient evidence

      to rebut his claim of self-defense. As the Indiana Supreme Court has explained:


      Court of Appeals of Indiana | Memorandum Decision 19A01-1709-CR-2021 | February 7, 2018   Page 2 of 5
              When a defendant challenges the State’s sufficiency of the
              evidence to rebut a claim of self-defense, the standard of review
              remains the same as for any sufficiency of the evidence claim.
              We neither reweigh the evidence nor assess the credibility of
              witnesses but look solely to the evidence most favorable to the
              judgment with all reasonable inferences to be drawn therefrom.
              We will affirm a conviction where such evidence and reasonable
              inferences constitute substantial evidence of probative value
              sufficient to support the judgment.


              Self-defense is recognized as a valid justification for an otherwise
              criminal act. 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. 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. 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. Whether the State has met its burden is a
              question of fact for the jury.


      Miller v. State, 720 N.E.2d 696, 699-700 (Ind. 1999) (citations omitted). Further,

      the amount of force used to protect oneself must be proportionate to the

      urgency of the situation. Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct.

      App. 1999). Where a person has used more force than necessary to repel an

      attack, the right to self-defense is extinguished, and the ultimate result is that

      the victim becomes the perpetrator. Id.


[5]   Here, Summers asserts that he was legally justified in punching Wirthwein in

      the face because Wirthwein had squirted lime juice on him. According to

      Court of Appeals of Indiana | Memorandum Decision 19A01-1709-CR-2021 | February 7, 2018   Page 3 of 5
      Summers, the lime juice hit Summers in the eye, which caused discomfort.

      Summers further asserts on appeal that, prior to him punching Wirthwein,

      Summers had heard Wirthwein use racial epithets.


[6]   As an initial matter, Summers’ reading of the record is not consistent with our

      standard of review. The evidence most favorable to the jury’s verdict

      demonstrates that none of the lime juice Wirthwein squirted on Summers hit

      Summers in the eyes. See, e.g., Tr. Vol. 2 at 176. The evidence most favorable

      to the jury’s verdict also demonstrates that Wirthwein did not use racial

      epithets. See, e.g., id. at 201-02. Accordingly, insofar as Summers’ arguments

      on appeal are premised on his assessment of the record, Summers’ arguments

      must fail.


[7]   In any event, Summers also asserts that a reasonable person, when squirted

      with an unknown, burning liquid, would act in self-defense. As Summers says,

      “[f]or all [he] knew, the liquid could have been acid.” Reply Br. at 5. Thus, he

      argues, he had a “reasonable fear or apprehension of death or great bodily

      harm,” which the State failed to negate.1 See Miller, 720 N.E.2d at 700.


[8]   We conclude that the jury was entitled to reject Summers’ self-defense claim on

      the evidence before it. The State’s evidence demonstrated that Wirthwein had

      squirted Summers on the chest and arm with some lime juice. Summers’

      discomfort aside, the jury was free to conclude that no reasonable person would



      1
          The other elements of Summers’ self-defense claim are not in dispute.


      Court of Appeals of Indiana | Memorandum Decision 19A01-1709-CR-2021 | February 7, 2018   Page 4 of 5
      have concluded that such an act placed him in fear of death or great bodily

      harm. See id. The jury was also free to conclude that the force with which

      Summers struck Wirthwein was more than necessary to repel the lime-juice

      attack, and, as such, Summers had become the perpetrator and Wirthwein the

      victim. See Hollowell, 707 N.E.2d at 1021. Accordingly, the State presented

      sufficient evidence to rebut Summers’ claim of self-defense, and we affirm his

      conviction.


[9]   Affirmed.


      Mathias, J., and Barnes, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A01-1709-CR-2021 | February 7, 2018   Page 5 of 5
