                                                                     Oct 17 2013, 5:45 am

Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

COREY L. SCOTT                                  GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

DARRAIL MIX,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1304-CR-314
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Helen W. Marchal, Judge
                           Cause No. 49G16-1208-FD-55714


                                     October 17, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Defendant-Appellant, Darrail Mix (Mix), appeals his conviction for domestic

battery, a Class D felony, Ind. Code § 35-42-2-1.3(a)-(b); battery, a Class D felony, I.C. §

35-42-2-1(a)(2); domestic battery, a Class A misdemeanor, I.C. § 35-42-2-1.3(a); and

resisting law enforcement, a Class A misdemeanor, I.C. § 35-44.1-3-1(a)(1).

       We affirm.

                                          ISSUE

       Mix raises two issues on appeal, which we restate as:

       (1) Whether the State presented sufficient evidence beyond a reasonable doubt to

          support Mix’s conviction for domestic battery and battery; and

       (2) Whether the trial court abused its discretion by failing to give the jury a self-

          defense instruction.

                        FACTS AND PROCEDURAL HISTORY

       Mix and A.J. were in a relationship for six years, punctuated with periods where

they had broken up. Together, they have one child, and A.J. has two additional children.

On August 12, 2012, Mix and A.J., having recently reconciled their relationship, attended

their son’s fourth birthday party together. Mix and A.J., along with the three children—

who were then ages five, four, and one—drove to a nearby park for the party. They had a

nice time at the celebration, and when it was time to leave, “everybody was happy.” (Tr. p.

43). After the party, A.J. drove Mix and the children back to her apartment. The mood

changed during the ride though, and “[f]or no apparent reason [Mix] started arguing with


                                             2
[A.J.].” (Tr. p. 43). Once they reached the parking lot of A.J.’s apartment, A.J. exited the

car and was preparing to get the children out of the vehicle, when Mix, whose anger had

continued to escalate, walked around to the driver’s side of the vehicle. Now “[l]ess than

two feet” away and “directly in front of” A.J., Mix punched her on the left side of her face.

(Tr. p. 28). With the children still in the car, A.J. took off running as Mix chased her in

circles around the vehicle.     In the midst of this episode, A.J. managed to call the

Indianapolis Metropolitan Police Department (IMPD).

       Three members of the Indianapolis Fire Department (Firefighters) were the first to

respond to the dispatch. Upon their arrival, Mix began walking away from the parking lot.

Firefighter Clarence Small (Firefighter Small) observed A.J. standing outside, looking

distressed. He approached and “asked her if she was okay.” (Tr. p. 67). A.J. answered,

“[N]o he hit me in the eye[,]” but before Firefighter Small could ask additional questions

or inspect A.J.’s injuries, Mix—who was approximately fifty feet away—reeled around

and proceeded toward the group. (Tr. p. 67). As Mix neared, he screamed profanities and

threatened violence against the Firefighters and A.J., and the Firefighters took “a defensive

stance to help protect [A.J.] and protect [them]selves.” (Tr. p. 96).

       When Mix reached the sidewalk where A.J. and the Firefighters were standing, he

lunged at Firefighter Small as though he was going to hit him but did not make physical

contact. A few seconds passed, and Firefighter Small, believing Mix was not going to hit

him, relaxed his stance. As soon as Firefighter Small “let [his] guard down[,]”Mix “sucker

punched” him in the jaw. (Tr. p. 70). Firefighter Small’s lip bled due to “tearing of the soft

tissue.” (Tr. p. 71). The “skin on the inside of [Firefighter Small’s] lip was pushed in

                                              3
between [his] teeth[,]” and he had “to work it so it came out finally because it was stuck

inside there.” (Tr, p. 71).

       After the punch, the Firefighters backed away from Mix, and A.J. retreated with the

children inside her apartment to watch from the window.              Mix then followed the

Firefighters to the fire engine, continuing with his erratic behavior. After several minutes

of Mix chasing and trying to fight them, the Firefighters collectively rushed Mix, grabbed

him, and “[took] him down to the ground” where they struggled to restrain him while

waiting for the police. (Tr. p. 98). Mix “tried several times to roll over to kick at [the

Firefighters], spitting at [them], trying to get up.” (Tr. p. 100). After the first IMPD Officer

arrived and handcuffed Mix, Mix continued “fighting with them, kicking, trying to get up,

cussing at them, [and] just being belligerent[,]” so the IMPD Officer and the Firefighters

used soft restraints to tie around Mix’s ankles. (Tr. p. 115).

       After detaining Mix, IMPD Officers entered A.J.’s apartment to discuss the incident.

They photographed A.J.’s eye, but she declined medical attention, stating that “[Mix] had

just hit me. So when they got there it was just like puffy and I didn’t think it was that bad.

It was just like puffy, like watery.” (Tr. p. 55). An IMPD Officer gave A.J. an ice pack to

put on her eye, and when she “woke up in the morning . . . it was swollen shut.” (Tr. p. 52).

A few days later a victim’s advocate from the prosecutor’s office took additional

photographs of A.J.’s eye, which had developed a bruise. (State’s Exhibits. 1-3).

       On August 13, 2012, the State filed an Information, charging Mix with Count I,

domestic battery, a Class D felony, I.C. § 35-42-2-1.3(a)-(b); Count II, battery, a Class D

felony, I.C. § 35-42-2-1(a)(2)(M); Count III, battery, a Class D felony, I.C. § 35-42-2-

                                               4
1(a)(2)(K); Count IV, domestic battery, a Class A misdemeanor, I.C. § 35-42-2-1.3(a);

Count V, battery, a Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(A); Count VI, battery, a

Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(D); and Count VII, resisting law

enforcement, a Class A misdemeanor, I.C. § 35-44.1-3-1(a)(1). On February 14, 2013, the

State dismissed Counts II, V, and VI.

       On February 20, 2013, a jury trial was conducted, and at the close of the evidence,

the jury returned a verdict of guilty as to the four remaining Counts. On March 11, 2013,

the trial court merged the Class A misdemeanor domestic battery Count into the Class D

felony domestic battery Count and sentenced Mix to a term of four years—730 days for

domestic battery and 730 days for battery, to be served consecutively. The trial court also

imposed a concurrent sentence of 365 days for resisting law enforcement.

       Mix now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

                              I. Sufficiency of the Evidence

       Mix contends that the evidence is insufficient to sustain his conviction for two

Counts of domestic battery and one Count of battery. In reviewing whether there is

sufficient evidence to support a conviction, this court will “consider only the probative

evidence and reasonable inferences supporting the verdict.” Boggs v. State, 928 N.E.2d

855, 864 (Ind. Ct. App. 2010), trans. denied. This court neither reweighs the evidence nor

assesses witness credibility, and will “consider conflicting evidence most favorably to the

trial court's ruling.” Id. We will uphold the conviction unless “no reasonable fact-finder



                                            5
could find the elements of the crime proven beyond a reasonable doubt.” Jenkins v. State,

726 N.E.2d 268, 270 (Ind. 2000).

       Mix was convicted of two Counts of domestic battery—one as a Class D felony and

the other as a Class A misdemeanor—for punching A.J. in the eye. Under Indiana’s

domestic battery statute, “[a] person who knowingly or intentionally touches an individual

who . . . has a child in common with the other person[] in a rude, insolent, or angry manner

that results in bodily injury to the person . . . commits domestic battery, a Class A

misdemeanor.” I.C. § 35-42-2-1.3(a)(3). The same offense is elevated to a Class D felony

if committed “in the physical presence of a child less than sixteen (16) years of age,

knowing that the child was present and might be able to see or hear the offense.” I.C. §

35-42-2-1.3(b)(2).    Mix does not contest that he and A.J. have a child together.

Accordingly, in order to convict Mix of a Class D felony, the State was required to prove

that he (1) knowingly or intentionally; (2) touched A.J.; (3) in a rude, insolent, or angry

manner; (4) resulting in bodily injury to A.J.; (5) in the presence of a child.

       Mix first disputes the sufficiency of evidence proving that he committed the battery

in the presence of the children. He argues that “[t]here were no third-party eyewitnesses

to the alleged altercation”—or none who “testified in court at trial or gave statements to

IMPD Officers”—and that A.J. “didn’t allow her kids to make statements on the date of

the alleged incident or at trial because she didn’t want to ‘drag her kids through something

like [that].’” (Appellant’s Br. p. 4). Mix further argues that “the [F]irefighters, who arrived

on the scene first, testified that they . . . did not see any children outside.” (Appellant’s Br.

p. 4). The evidence establishes that the argument began during the car-ride home from the

                                               6
birthday party, and Mix punched A.J. right after she had parked and exited the car while

the children were still in the back seat. Additionally, in the recording of A.J.’s call to 911,

which she made in the course of Mix chasing her around the vehicle, she can be heard

telling Mix to “stay away from my son.” (Tr. p. 40). Contrary to Mix’s assertion, the

Firefighters testified that when they arrived on the scene, they had only a very brief

interaction with A.J. before their attention became fully devoted to Mix’s tantrum and,

thus, did not “remember seeing children . . . [r]ight away.” (Tr. p. 83). The Firefighters’

statements are consistent with A.J.’s testimony that she grabbed the children and took them

inside after Mix punched Firefighter Small. Both testified that they did not see where A.J.

had gone at that point, one stating that “after my focus was directed towards [Mix] I didn’t

see much of her at all[,]” and the other that “I was too busy trying to keep [Mix] off of me.”

(Tr. pp. 73, 108). Accordingly, we find that the State presented sufficient evidence to

establish that the children were in the back seat and capable of seeing or hearing Mix punch

A.J.

       Second, Mix claims the evidence is insufficient to establish that he caused bodily

injury to A.J. Specifically, Mix argues that the Firefighters testified that they observed no

injuries on A.J. the night of the incident, and also that

       the State did not seek to introduce any photographic evidence that was
       supposedly collected on the night of the incident. Instead, the State
       introduced photographs that were taken a few days after the alleged incident.
       So that means that the photos relied upon by the State in its case in chief[]
       could have very well been the result of some other violent event that occurred
       after Mix was arrested.




                                               7
(Appellant’s Br. p. 5). The State’s evidence to establish bodily injury includes three

pictures of a bruise encircling A.J.’s left eye; A.J.’s testimony that Mix punched her one

time on the left side of her face, which resulted in initial swelling and subsequently bruised;

and testimony of the IMPD Officer that, on the night of the incident, he observed “some

swelling and redness” on A.J.’s left eye. (Tr. pp. 119-20). Mix’s assertion that the

Firefighters testified that they perceived no injuries, while technically correct, omits a

significant portion of the Firefighters’ testimony: they did not have an opportunity to

examine A.J.’s injuries before Mix interfered.

       Our supreme court has previously established that “[a] conviction can be sustained

on only the uncorroborated testimony of a single witness, even when that witness is the

victim.” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). Here, A.J.’s testimony was

corroborated by the IMPD Officer, as well as Firefighter Small, who testified that A.J.’s

injuries would not have been readily apparent because with “dark skinned people, it’s hard

to see . . . if there [are] any marks or anything like that. . . . It takes a while sometimes . . .

for the swelling to come up.” (Tr. p. 83-84). Furthermore, the jury, although aware that

the photographs admitted into evidence had been taken several days after the incident,

believed A.J.’s testimony that her black eye was the result of Mix punching her, and it is

not the role of this court to assess a witness’s credibility. See Feyka v. State, 972 N.E.2d

387, 392-94 (Ind. Ct. App. 2012), review denied. Thus, we find that the State presented

sufficient evidence to establish that Mix inflicted bodily injury on A.J.

       Mix’s remaining claims do not contend that the State failed to meet its burden on

any particular element of domestic battery.          Instead, Mix makes general assertions

                                                8
challenging the credibility of A.J.’s testimony. Specifically, Mix argues, “Then incredibly,

in the same breath, [A.J.] testified that while she was being chased around the car by Mix,

she was able to: grab her kids out of the car, call 911 to seek help and occasionally stop to

argue with Mix.” (Appellant’s Br. pp. 4-5). Mix also states,

        So according to [A.J.], after her son’s birthday party, all was well and then
        without provocation, Mix gets out of the car and punches her in the face.
        When asked whether she actually started the argument with Mix because he
        was seeing other women, [A.J.] denied that there was any issue at all before
        she was punched.

(Appellant’s Br. p. 5). It is well-established that it is “the jury’s responsibility to judge the

credibility of witnesses.” Manuel v. State, 971 N.E.2d 1262, 1271 (Ind. Ct. App. 2012).

An examination of the record reveals that each witness’s testimony was corroborated, as

well as that Mix’s unprovoked attack upon Firefighter Small—and the manner in which he

chased the Firefighters around the fire engine—is strikingly similar to A.J.’s account of

Mix’s behavior towards her. Accordingly, we decline Mix’s request to interfere with the

jury’s credibility determination.

        We find that the State presented sufficient evidence to support Mix’s conviction for

domestic battery, a Class D felony, and because the elements of domestic battery as a Class

A misdemeanor are the same, less that the battery was committed in the presence of

children, the evidence is also sufficient to uphold this Count.1

                                      II. Self-Defense Instruction


1
  Despite Mix’s challenge to his conviction for battery against Firefighter Small, a Class D felony, Mix
has not set forth even a single argument concerning the sufficiency of the evidence of this conviction. By
failing to present his “contentions [on] why the trial court . . . committed reversible error . . . , supported
by cogent reasoning[,]” Mix has waived this issue for review under Indiana Appellate Rule 46(A)(8)(a).
See In re Garrard, 985 N.E.2d 1097, 1104 (Ind. Ct. App. 2013).

                                                       9
       Mix next contends that the trial court abused its discretion by refusing to present “a

self-defense instruction to the jury given that such an instruction would be totally supported

by the evidence and the instruction was not covered by any other jury instruction tendered

to the court.” (Appellant’s Br. p. 7). A trial court has sound discretion over the manner in

which it instructs the jury, and this court will review a trial court’s decision to refuse

tendered jury instructions only for an abuse of discretion. Huls v. State, 971 N.E.2d 739,

744-45 (Ind. Ct. App. 2012), trans. denied. To determine whether the trial court abused its

discretion, we consider “(1) whether the instruction correctly states the law; (2) whether

there is evidence in the record to support the giving of the instruction; and (3) whether the

substance of the tendered instruction is covered by other instructions that are given.” Id.

at 745. Even if a trial court abuses its discretion “in refusing to give an instruction, such a

refusal ‘is not presumed fatal and will constitute reversible error only when substantial

rights have been adversely affected.’” Bailey v. State Farm Mut. Auto. Ins. Co., 881 N.E.2d

996, 1005 (Ind. Ct. App. 2008).

       Mix’s counsel submitted a self-defense instruction to the trial court, which the trial

court rejected because there was not “sufficient evidence to support the giving of that

particular instruction.” (Tr. p. 145). “A defendant is entitled to an instruction on any

defense which has some foundation in the evidence.” Huls, 971 N.E.2d at 746 (emphasis

added). Regrettably, here, Mix has obstructed our ability to review this issue because he

neglected to reproduce the tendered instruction in either the Appellant’s Brief or the

Appellant’s Appendix. “When error is predicated on the giving or refusing of any

instruction, the instruction shall be set out verbatim in the argument section of the brief

                                              10
with the verbatim objections, if any, made thereto.” Indiana Appellate Rule 46(A)(8)(e);

see App. R. 50(B)(1)(c). “An appellant waives the issue by failing to comply with this

appellate rule.” Watson v. State, 972 N.E.2d 378, 383 n.2 (Ind. Ct. App. 2012).

       We are thus inclined to find that Mix has waived this issue. The State, in its brief,

put Mix on notice that the tendered instruction was improperly excluded from the record,

but Mix made no effort to remedy the error by filing a reply brief or supplementing the

appendix.   See Dellenbach v. State, 508 N.E.2d 1309, 1316 (Ind. Ct. App. 1987).

Notwithstanding both Mix’s waiver and unconcern with supplementing the record, in this

instance, the trial transcript captured the discussion relevant to Mix’s self-defense

instruction. Therefore, Mix’s failure to provide this court with a verbatim copy of the

tendered instruction has not completely impeded our consideration of the issue, although

it certainly would have alleviated us of the burden of searching the record had Mix, at the

very least, provided citations to the transcript. Thus, to the extent we are able, we will

review whether the trial court erred in rejecting Mix’s self-defense instruction.

       The trial court agreed that, although the instruction would not be submitted to the

jury, Mix’s attorney could still present the issue to the jury during closing arguments.

Reading from Indiana Code section 35-41-3-2(i)-(j), the attorney stated in his closing,

       [A] person is justified in using reasonable force against a public servant if
       that person reasonably believes that force is necessary to protect that person
       or a third person from what that person reasonably believes to be the
       imminent use of unlawful force. The person is unjustified in using such force
       if that person is committing or escaping from a crime, pro[v]o[k]ing action
       from a public servant with the intent to cause that bodily injury to the servant,
       entering into mutual combat with the public servant or becomes the initial
       aggressor[,] unless that person withdraws from the encounter and indicates
       his peaceful intent and the other person continues to fight.

                                              11
(Tr. pp. 172-73). Assuming that Mix’s tendered instruction replicates this argument, we

agree that it is a correct statement of the law, and because Firefighter Small is a paid

employee of the Indianapolis Fire Department, he meets the statutory definition of a

“[p]ublic servant.” I.C. § 35-31.5-2-261. We also agree that the issue of self-defense was

not covered by any other final jury instruction. However, we find no evidence in the record

that supports a basis for providing any such self-defense instruction to the jury. The

Firefighters arrived in response to a call for help; they had no interaction with Mix and

very little time to assess the situation before Mix approached them and “sucker punched”

Firefighter Small in the jaw (Tr. p. 70).

       We find Mix’s assertion that, by taking “up a defensive stance” in response to Mix’s

threats, Firefighter Small had “engaged in mutual combat” to be absurd. (Appellant’s Br.

p. 6). All witnesses testified to the same facts: Mix was irate and hit without provocation.

Mix also argues that Firefighter Small’s choice of words while testifying—that Mix “kept

coming like he was going to come after me to fight some more . . . to engage me some

more”—implies that “the two men were fighting one another.” (Tr. p. 72 (emphasis added)

(alteration in original); Appellant’s Br. p. 7). We find this assertion equally unconvincing.

Mix’s unilateral pursuit of and swings at the Firefighters fall drastically short of being a

mutual brawl. No reasonable person would find that Mix reasonably believed he was

protecting himself from the Firefighter’s “imminent use of unlawful force.” I.C. § 35-41-

3-2(i)(1). Therefore, we find the trial court acted within its discretion in rejecting the self-

defense jury instruction.


                                              12
                                       CONCLUSION

       Based on the foregoing, we conclude that there is sufficient evidence to uphold

Mix’s conviction of domestic battery and battery, and the trial court did not abuse its

discretion in declining to give a self-defense instruction to the jury.

       Affirmed.

ROBB, C. J. and KIRSCH, J. concur




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