MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                 Mar 16 2017, 9:48 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
Timothy J. Burns                                       Curtis T. Hill, Jr.
Indianapolis, Indiana                                  Attorney General of Indiana

                                                       Ellen Meilaender
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Raul Gonzales,                                         March 16, 2017
Appellant-Defendant,                                   Court of Appeals Case No.
                                                       49A02-1610-CR-2352
        v.                                             Appeal from the Marion Superior
                                                       Court
State of Indiana,                                      The Honorable Christina R.
Appellee-Plaintiff.                                    Klineman, Judge
                                                       Trial Court Cause No.
                                                       49G17-1602-F6-7995



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017           Page 1 of 6
                                      Statement of the Case
[1]   Raul Gonzales appeals his conviction for battery, as a Class B misdemeanor,

      following a bench trial. He raises one issue on appeal, namely, whether the

      State presented sufficient evidence to support his conviction. We affirm.


                                 Facts and Procedural History
[2]   On February 29, 2016, Gonzales returned to the Indianapolis residence he had

      shared off-and-on for the previous four years with his wife, Paulina Gutierrez,

      and their three minor children. When Gonzales arrived at the residence,

      Gutierrez and the children were there and Gonzales started an argument with

      Gutierrez in which he yelled, cursed at her, and accused her of taking the keys

      to his truck. Gonzales also threw boxes off of the counter as he looked for the

      keys and continued to yell at Gutierrez. Gonzales demanded that Gutierrez

      leave because his girlfriend was coming over to the house, and he yelled that

      Gutierrez had no right to be at the house.


[3]   Gutierrez went upstairs to put their one-year-old child to bed and, when she

      came back downstairs, Gonzales’ girlfriend, Harley Baxter, was sitting at the

      kitchen table. Gutierrez asked Baxter to leave and asked Gonzales to have

      Baxter leave. When Baxter did not leave, Gutierrez called the police. The

      police arrived approximately ten minutes later, but they did not force Baxter to

      leave since she was Gonzales’ guest at the residence. Gutierrez then went

      upstairs to pack some belongings so she could leave and take the children to the

      home of Gloria Telles, Gonzales’ aunt, or the home of Gutierrez’s mother.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017   Page 2 of 6
      Gutierrez did not have a car, so she called Telles to ask for a ride. While

      Gutierrez waited on the stairs for Telles to arrive, Gonzales continued to yell at

      Gutierrez and called her a bad mother.


[4]   When Telles arrived, Guiterrez went to the front door while the children waited

      in the living room. Gonzales was angry and loud, and he argued with Telles at

      the front door. Gonzales told Telles that Gutierrez had to be the one to leave,

      Telles had no right to be there, and the dispute was none of Telles’ business.

      Gonzales then grabbed Gutierrez by the shoulders with both hands and

      forcefully pushed her out of the front door. Gutierrez held onto Gonzales’ shirt

      to prevent herself from falling while he pushed her. Gonzales went back inside

      to grab Telles, and he pushed Telles out of the front door as well. Gonzales

      then went inside the residence and locked the door. Gutierrez tried to open the

      door to get the three children, but she was unable to do so. Gutierrez then

      called the police again, and when the police arrived for the second time, they

      arrested Gonzales.


[5]   On February 29, 2016, the State charged Gonzales with Count I, domestic

      battery, as a Level 6 felony; Count II, battery in the presence of a child, as a

      Level 6 felony; Count III, domestic battery, as a Class A misdemeanor; and

      Count IV, battery resulting in bodily injury, as a Class A misdemeanor.

      Following a bench trial on September 12, 2016, the trial court found Gonzales

      guilty of battery, as a Class B misdemeanor, as a lesser included offense under

      Count II, and it acquitted Gonzales of all other charges. This appeal ensued.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017   Page 3 of 6
                                    Discussion and Decision
[6]   Gonzales contends that the State failed to provide sufficient evidence to support

      his conviction. Because he appeals a judgment entered by the trial court

      without a jury, we employ a clearly erroneous standard of review and give “due

      regard . . . to the opportunity of the trial court to judge the credibility of the

      witnesses.” Ind. Trial Rule 52(A).


              Under th[e clearly erroneous] standard we review only for
              sufficiency of the evidence. State v. Oney, 993 N.E.2d 157, 161
              (Ind. 2013). “We neither reweigh the evidence nor determine the
              credibility of witnesses.” Id. “We consider only the probative
              evidence and reasonable inferences supporting the judgment and
              reverse only on a showing of clear error.” Id. Clear error is “that
              which leaves us with a definite and firm conviction that a mistake
              has been made.” Id. (citation omitted).


      Hitch v. State, 51 N.E.3d 216, 226 (Ind. 2016).


[7]   To prove Gonzales engaged in battery, as a Class B misdemeanor, the State was

      required to prove beyond a reasonable doubt that: (1) Gonzales, (2) knowingly

      or intentionally, (3) touched Gutierrez, (4) in a rude, insolent, or angry manner.

      Ind. Code § 35-42-2-1(c)(1) (2016). The evidence favorable to the judgment

      shows that, after arguing with and yelling at Gutierrez, Gonzales knowingly

      grabbed Gutierrez by the shoulders using both of his hands and pushed her

      “hard” and “strongly” out of the front door of the residence. Tr. Vol. II at 22,

      49. Both Gutierrez and Telles testified that they witnessed as much. That is

      sufficient evidence to support Gonzales’ battery conviction. See, e.g., Bailey v.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017   Page 4 of 6
      State, 907 N.E.2d 1003, 1005-06 (Ind. 2009); Ball v. State, 945 N.E.2d 252, 258

      (Ind. Ct. App. 2011), trans. denied.


[8]   However, Gonzales contends that his actions were taken in self-defense and/or

      in defense of Baxter and that the State failed to provide sufficient evidence to

      rebut his claim of self-defense. To prevail on a claim of self-defense in a case

      that does not involve deadly force, the defendant must show that 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) was protecting himself from what he

      reasonably believed to be the imminent use of unlawful force. Dixson v. State,

      22 N.E.3d 836, 839 (Ind. Ct. App. 2014) (citing I.C. § 35-41-3-2(c)), trans.

      denied. Here, Gonzales testified that Gutierrez pushed and grabbed him first

      while she was trying “to get to [Baxter]” and that he only grabbed and pushed

      Gutierrez in response to her actions and in defense of himself and Baxter. Tr.

      Vol. II at 74-76. Gonzales also testified that the residence was his, and no one

      contends that he did not have a right to be at the residence. Thus, Gonzales

      provided some evidence of each of the three elements of self-defense.


[9]   “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” beyond

      a reasonable doubt, Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002), but it can

      rebut or disprove the claim of self-defense by affirmatively showing the

      defendant did not act in self-defense or by simply relying on the evidence in its

      case-in-chief, Carroll v. State, 744 N.E.2d 432, 433-34 (Ind. 2001). The standard

      of review for a challenge to the sufficiency of the evidence rebutting a claim of

      Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017   Page 5 of 6
       self-defense is the same as the standard for any sufficiency of the evidence

       claim. Wilson, 770 N.E.2d at 800. “A defendant’s conviction will be upheld

       unless no reasonable person could say that the State negated the self-defense

       claim beyond a reasonable doubt.” Wilcher v. State, 771 N.E.2d 113, 116 (Ind.

       Ct. App. 2002), trans. denied.


[10]   As previously noted, both Gutierrez and Telles testified that they witnessed

       Gonzales grab Gutierrez by the shoulders using both of his hands and push her

       forcefully out of the front door of the residence. Gutierrez also testified that she

       and Gonzales were in a purely verbal argument prior to that point. Thus, the

       State provided sufficient evidence that Gonzales was the person who instigated

       the violence, thereby negating Gonzales’ self-defense claim. Dixson, 22 N.E.3d

       at 839. Although Gonzales testified that Gutierrez pushed and grabbed him

       first, the trial court was under no obligation to credit his testimony. See, e.g.,

       Wilcher, 771 N.E.2d at 116. Gonzales’ assertions to the contrary are merely

       requests that we reweigh the evidence and assess the witnesses’ credibility,

       which we cannot do. Wilson, 770 N.E.2d at 801. The evidence favoring the

       judgment was sufficient to rebut Gonzales’ claim of self-defense.


[11]   Affirmed.


       Bailey, J., and May, J, concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017   Page 6 of 6
