MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Dec 07 2018, 8:49 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
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz & Magrath, LLP                      Attorney General of Indiana
Madison, Indiana
                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Andrew Douglas,                                          December 7, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-746
        v.                                               Appeal from the Bartholomew
                                                         Superior Court
State of Indiana,                                        The Honorable Kathleen Tighe
Appellee-Plaintiff                                       Coriden, Judge
                                                         Trial Court Cause No.
                                                         03D02-1707-CM-3706



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-746 | December 7, 2018              Page 1 of 7
[1]   Andrew Douglas appeals his conviction of Class A misdemeanor battery

      resulting in bodily injury. 1 He argues the State produced insufficient evidence

      to rebut his claims of self-defense and defense of other. We affirm.



                                   Facts and Procedural History
[2]   Douglas separated from his wife, M.D., on February 15, 2017. Following their

      separation, the couple’s sons, twelve-year-old K.D. and five-year-old B.D., lived

      primarily with Douglas at his parents’ house. On April 3, 2017, while M.D.

      had custody of their sons, Douglas informed M.D that he wanted a divorce.

      That same day, M.D. moved into Turning Point shelter with K.D. and B.D.,

      and she refused to return the boys to Douglas.


[3]   On April 15, 2017, Douglas was driving in Columbus, and he passed a car

      driven by M.D.’s mother, Lynette Armstrong. Douglas noticed that his sons

      were in the car, so he turned around and followed Armstrong to her

      destination, McDonald’s. Douglas waited outside for Armstrong to exit with

      the boys, but he got impatient as they sat inside eating, so he went in to get

      them. Douglas picked up B.D., told K.D. to come with him, and began

      walking out with the children. B.D. appeared afraid and told Armstrong he did

      not want to go with Douglas. Armstrong yelled for someone to call the police,




      1
          Ind. Code § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-746 | December 7, 2018   Page 2 of 7
      which the manager of McDonald’s did, and Armstrong followed Douglas and

      the boys out of the restaurant.


[4]   Outside the restaurant, K.D. climbed into the front passenger seat of Douglas’

      car and buckled his seatbelt. Douglas buckled B.D. into his booster seat, which

      was behind the driver’s seat, and shut the back door of the car. B.D. was

      crying, so Armstrong opened the driver-side back door, perched herself on the

      edge of the back seat, with one foot in the car and one foot on the ground, and

      tried to console B.D. While she was there, Douglas shut the driver-side back

      door with such force that Armstrong sustained a painful contusion on her lower

      left leg. Police arrived on the scene, took statements from numerous people,

      and determined the children would leave with Armstrong.


[5]   The State charged Douglas with Class A misdemeanor battery resulting in

      bodily injury because he shut the door on Armstrong’s leg. The court held a

      bench trial at which Douglas, Armstrong, and the manager of McDonald’s

      testified. Douglas testified Armstrong was injured because she jumped in the

      way when he was shutting the car door. The court found Douglas guilty,

      specifically remarking:


              Mr. Douglas one of the things that I have to do is look at
              creditability and in doing that I am going to find that you are
              guilty of Battery Resulting in Bodily Injury as an A
              Misdemeanor. I’m finding that you did knowingly, or
              intentionally touch Lynette Armstrong in a rude insolent or
              angry manor resulting in bodily injury. What you did is beyond
              stupid, for a parent, but it’s also criminal. So I’m going to set this
              out for sentencing . . . .

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-746 | December 7, 2018   Page 3 of 7
      (Tr. Vol. 2 at 44 (errors in original).)



                                Discussion and Decision
[6]   Class A misdemeanor battery resulting in bodily injury occurs when a person

      “knowingly or intentionally touches another person in a rude, insolent, or angry

      manner” and that touching “results in bodily injury to any other person.” Ind.

      Code § 35-42-2-1. Bodily injury is “any impairment of physical condition,

      including physical pain.” Ind. Code § 35-31.5-2-29. Douglas does not deny

      that he shut the car door on Armstrong’s leg, causing her injury. Instead he

      argues Armstrong was acting illegally and he therefore was “absolutely justified

      in actively attempting to prevent Armstrong’s illegal conduct.” (Appellant’s Br.

      at 12.) Under the circumstances that unfolded in this case, we must disagree.


[7]   Douglas essentially asserts he was acting in defense of himself or the boys. Our

      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 the witnesses. Adetokunbo v.

      State, 29 N.E.3d 1277, 1280 (Ind. Ct. App. 2015). We consider only the

      probative evidence and reasonable inferences supporting the trial court’s

      decision. Id. “A conviction will be affirmed if there is substantial evidence of

      probative value such that a reasonable trier of fact could have concluded the

      defendant was guilty beyond a reasonable doubt.” Id. at 1280-81.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-746 | December 7, 2018   Page 4 of 7
[8]   “A valid claim of self-defense is legal justification for an otherwise criminal

      act[,]” Wallace, 725 N.E.2d at 840, and a claim of defense of other is analogous

      to a claim of self-defense. Rondeau v. State, 48 N.E.3d 907, 919 (Ind. Ct. App.

      2016), trans. denied.


              A person is justified in using reasonable force against any other
              person to protect the person or a third person from what the
              person reasonably believes to be the imminent use of unlawful
              force. However, a person:


                      (1) is justified in using deadly force; and
                      (2) does not have a duty to retreat;


              if the person reasonably believes that that force is necessary to
              prevent serious bodily injury to the person or a third person or
              the commission of a forcible felony. No person in this state shall
              be placed in legal jeopardy of any kind whatsoever for protecting
              the person or a third person by reasonable means necessary.


      Ind. Code § 35-41-3-2(c).


[9]   To prevail on such claims, a defendant must show he: (1) was in a place where

      he had a right to be; (2) did not provoke, instigate, or participate willingly in the

      violence; and (3) had a reasonable fear of death or great bodily harm. Wilson v.

      State, 770 N.E.2d 799, 800 (Ind. 2002). “When a claim of self-defense is raised

      and finds support in the evidence, the State bears the burden of negating at least

      one of the necessary elements.” King v. State, 61 N.E.3d 1275, 1283 (Ind. Ct.

      App. 2016), trans. denied. “The State may meet this burden by rebutting the

      defense directly, by affirmatively showing the defendant did not act in self-

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-746 | December 7, 2018   Page 5 of 7
       defense, or by simply relying upon the sufficiency of its evidence in chief.” Id.

       If a defendant is convicted despite his 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]   We cannot provide Douglas the relief he seeks because he provoked, instigated,

       and willingly participated in the circumstances that led to his slamming the

       door on Armstrong’s leg. See id. at 800 (defendant must show he did not

       provoke, instigate or participate willingly in the violence). Armstrong is the

       grandmother of K.D. and B.D., and they were placed in her care by M.D.

       Armstrong therefore was acting on M.D.’s authority when she took the boys to

       McDonald’s. Douglas arrived at McDonald’s without warning and, without

       speaking to Armstrong or explaining his behavior to the boys, grabbed B.D. and

       began to leave the restaurant, ordering K.D. to follow him. Douglas’ behavior

       understandably upset B.D. and Armstrong, and if B.D. had not been upset,

       Armstrong might not have felt the need to enter Douglas’ car to console him. 2

       Because Douglas willingly instigated and provoked Armstrong’s behavior,




       2
         Douglas argues Armstrong was committing: (1) Class B misdemeanor entering a motor vehicle without
       permission, Ind. Code § 35-43-4-2.7(d); (2) Class A misdemeanor criminal trespass for interfering with his
       possession of the vehicle, Ind. Code § 35-43-2-2(b); and (3) Class C misdemeanor interference with custody,
       Ind. Code § 35-42-3-4(b). (See Appellant’s Br. at 11-12.) Even if Armstrong had entered the car without
       Douglas’ permission and was interfering with his ability to abscond with his children, there was absolutely no
       evidence to suggest Armstrong was a threat to Douglas or the boys. Accordingly, if Douglas believed
       Armstrong was committing crimes, he should have waited for the police to arrive and reported those crimes
       to the police. Douglas’ impatience to leave cannot justify his injuring his mother-in-law as she consoled his
       son in the car. As we note above, Douglas instigated, provoked, and willingly participated in the situation
       that resulted in his injuring Armstrong, and he therefore cannot claim he acted in defense of self or others.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-746 | December 7, 2018                   Page 6 of 7
       Douglas cannot claim self-defense. See Wolf v. State, 76 N.E.3d 911, 917 (Ind.

       Ct. App. 2017) (where Wolf “initiated and willingly participated in the fight”

       trial court properly rejected his claim of self-defense).


[11]   We empathize with the circumstances that brought Douglas to McDonald’s on

       the day in question -- because he recently had separated from his wife and he

       not seen his sons for more than a week. We cannot, however, condone his

       behavior. Parents who cannot amicably reach an agreement regarding custody

       of and visitation with their children need to turn to a court of law for assistance

       with implementation of a schedule. Permitting parents to abscond with their

       children whenever and wherever they happen to find them would create chaos

       for children, which would be anxiety provoking, unhealthy, and unjust. As the

       State has a substantial interest in protecting the welfare of children, In re I.P., 5

       N.E.3d 750, 752 (Ind. 2014), we do not hesitate to affirm Douglas’ conviction.



                                               Conclusion
[12]   Because Douglas’ rash behavior instigated and precipitated the injury to

       Armstrong, he cannot claim he was acting in defense of self or others. As such,

       we affirm his conviction of Class A misdemeanor battery resulting in bodily

       injury.


[13]   Affirmed.


       Baker, J., and Robb, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-746 | December 7, 2018   Page 7 of 7
