      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                             FILED
      regarded as precedent or cited before any                                  Dec 30 2019, 10:49 am
      court except for the purpose of                                                   CLERK
      establishing the defense of res judicata,                                   Indiana Supreme Court
                                                                                     Court of Appeals
      collateral estoppel, or the law of the case.                                     and Tax Court




      ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      William T. Myers                                       Curtis T. Hill, Jr.
      McKown, Whitehurst and Myers, LLP                      Attorney General of Indiana
      Marion, Indiana
                                                             Sierra A. Murray
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Samuel E. Moore,                                       December 30, 2019
      Appellant-Defendant,                                   Court of Appeals Case No.
                                                             19A-CR-523
              v.                                             Appeal from the Huntington
                                                             Superior Court
      State of Indiana,                                      The Honorable Jennifer E. Newton,
      Appellee-Plaintiff.                                    Judge
                                                             Trial Court Cause No.
                                                             35D01-1806-CM-424



      Mathias, Judge.


[1]   Samuel E. Moore (“Moore”) was convicted in Huntington Superior Court of

      Class A misdemeanor domestic battery. Moore appeals his conviction and


      Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019                     Page 1 of 6
      argues that the State failed to present sufficient evidence to rebut his claim of

      self-defense. We affirm Moore’s conviction.


                                 Facts and Procedural History
[2]   Moore is seventeen-year-old J.H.’s stepfather. On June 12, 2018, J.H. arrived at

      home accompanied by three friends in his friend’s vehicle. He told Moore and

      his mother that he was spending the night at a friend’s home. He packed

      clothing, said goodbye, and returned to the rear driver’s side seat of his friend

      A.R.’s vehicle.


[3]   As A.R. drove away from J.H.’s home, J.H. turned up the volume of the music

      playing in the car. Moore became angry because the music in the vehicle was

      louder than Moore felt was appropriate. Moore got into his truck and followed

      A.R.’s vehicle. When he caught up to A.R.’s car, Moore passed the car and

      came to a stop in the middle of the road. A.R. had to “stomp” on the brakes to

      avoid hitting Moore’s truck. Tr. Vol. 2, p. 29.


[4]   Moore exited his truck and approached A.R.’s vehicle. He yelled at J.H. and his

      friends that the music was too loud. He threatened to slash the tires, “cut the

      speakers” from A.R.’s vehicle and “beat all of [their] asses.” Tr. Vol. 2, pp. 30,

      70, 136.


[5]   J.H. told Moore not to threaten his friends. Moore then punched J.H. in the

      shoulder and arm through the open car window. Tr. Vol. 2, pp. 31, 102. Moore

      tried to pull J.H. out of the car by his legs. When J.H. kicked Moore, Moore let

      go, and J.H. exited the car. Moore then punched J.H. three times in the face
      Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019   Page 2 of 6
      and ripped J.H.’s shirt. J.H. tried to punch Moore but missed so he pushed

      Moore away from him.


[6]   Off-duty Huntington Police Department Officer Andrew Ellet (“Officer Ellet”)

      was driving home when he saw J.H. and Moore fighting in the middle of the

      road. Moore was “in a boxer stance” and “challenging [J.H.] to a fight.” Tr.

      Vol. 2, p. 157. J.H. was backing away from Moore.


[7]   Officer Ellet called police dispatch and identified himself to Moore and J.H. as

      a police officer. The officer told Moore and J.H. to stop fighting. Moore

      stopped trying to punch J.H. and yelled to the officer “[w]hat the f**k are you

      going to do.” Tr. Vol. 2, p. 158. J.H. also yelled profanity to the officer. Tr. Vol.

      2, p. 169.


[8]   Moore returned to his truck and drove home. The officer followed him. Officer

      Ellet approached Moore while Moore was standing in his driveway. Moore was

      upset and yelled at the officer. The officer attempted to discuss the incident with

      J.H.’s mother, but Moore interrupted and said, “I chased him to beat his ass . . .

      because he was disrespectful.” Tr. Vol. 2, p. 161.


[9]   A few minutes later, J.H. and his friends returned to the house because J.H.

      wanted to pack the rest of his belongings so that he could move out of Moore’s

      home. Shortly thereafter, on-duty uniformed officers arrived. One officer

      photographed blood splatter on A.R.’s vehicle. The officers interviewed Moore,

      J.H., A.R., and the two other teenagers in the vehicle who witnessed the

      incident. Moore admitted to an investigating officer that he chased A.R.’s

      Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019   Page 3 of 6
       vehicle because of the volume of the music, and that he initiated the physical

       altercation by punching J.H. Tr. Vol. 2, pp. 186, 206. J.H. had a black eye, a

       swollen lip and scratches on his neck. J.H.’s eye was swollen shut for two days.

       Moore did not have any injuries.


[10]   On June 14, 2018, the State charged Moore with Class A misdemeanor

       domestic battery. A jury trial was held on January 25, 2019. Moore claimed

       that he acted in self-defense. The jury found Moore guilty as charged. The trial

       court sentenced Moore to 365 days, with 185 days suspended to probation and

       180 days served on electronic monitoring. Moore now appeals.


                                      Discussion and Decision
[11]   Citing his own self-serving testimony at trial, Moore claims 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 claim. Wilson v. State, 770 N.E.2d 799, 801 (Ind.

       2002). We consider only the probative evidence and reasonable inferences

       supporting the trial court’s decision. Tharpe v. State, 955 N.E.2d 836, 844 (Ind.

       Ct. App. 2011), trans. denied. We neither reweigh the evidence nor judge the

       credibility of witnesses. Wilson, 770 N.E.2d at 801. The trier of fact is entitled to

       determine which version of the incident to credit and is the sole judge of the

       effect that any discrepancies or contradictions might have on the outcome of the

       case. Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied.




       Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019   Page 4 of 6
[12]   Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,

       984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “A person is justified in

       using reasonable force against any other person to protect the person . . . from

       what the person reasonably believes to be the imminent use of unlawful force.”

       Ind. Code § 35-41-3-2(c). The person, however, is not justified in using force if,

       among other things, “the person has entered into combat with another person

       or is the initial aggressor unless the person withdraws from the encounter and

       communicates to the other person the intent to do so and the other person

       nevertheless continues or threatens to continue unlawful action.” I.C. § 35-41-3-

       2(g)(3).


[13]   To prevail on his self-defense claim, Moore had to show that he: “(1) was in a

       place where he had a right to be; (2) acted without fault; and (3) was in

       reasonable fear o[r] apprehension of bodily harm.” Richardson v. State, 79

       N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied. When a claim of self-

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

       least one of the necessary elements. 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. Id.


[14]   Here, in its case-in-chief, the State presented evidence that Moore was angry

       that J.H. and his friends were playing music loudly as they drove away from

       Moore’s home. Moore drove his truck to chase down A.R.’s vehicle, passed the

       vehicle, and stopped in front of it in the middle of the roadway, causing A.R. to

       brake suddenly. Moore exited his truck and yelled at the teenagers that the

       Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019   Page 5 of 6
       music was too loud. He threatened to slash the tires, “cut the speakers” from

       A.R.’s vehicle and to “beat all of [their] asses.” Tr. Vol. 2, pp. 30, 70, 136.

       Moore then punched J.H. two times through the open window of A.R.’s

       vehicle. After J.H. exited the vehicle, Moore punched him two or three

       additional times. J.H. shoved Moore once and tried to punch Moore but

       missed. J.H. sustained injuries to his face and neck. Moore was not injured.


[15]   Moore was the initial aggressor in the physical encounter with J.H., J.H. did

       not threaten Moore, and Moore did not have a reasonable fear of bodily harm.

       Moore’s argument that the State failed to rebut his claim of self-defense is

       supported only by his own testimony at trial. It was within the province of the

       jury to weigh Moore’s credibility, and the State presented probative evidence

       from which the jury reasonably determined that Moore did not act in self-

       defense. We therefore conclude that the State presented sufficient evidence to

       prove that Moore committed Class A misdemeanor domestic battery and affirm

       his conviction.


[16]   Affirmed.


       Robb, J., and Pyle, J., concur.




       Court of Appeals of Indiana |Memorandum Decision 19A-CR-523 | December 30, 2019   Page 6 of 6
