MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                             FILED
regarded as precedent or cited before any                    Mar 30 2017, 9:01 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
Timothy J. Burns                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Matthew B. MacKenzie
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Karen Bush,                                             March 30, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1611-CR-2512
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David Hooper,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G08-1606-CM-022454



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2512 | March 30, 2017   Page 1 of 9
[1]   Karen Bush appeals her conviction for battery as a class A misdemeanor. Bush

      raises one issue which we revise and restate as whether the evidence is sufficient

      to sustain her conviction. We affirm.


                                      Facts and Procedural History

[2]   The facts favorable to the conviction are that, on June 10, 2016, Pamela

      Trammell and Bush had a physical altercation in Indianapolis outside of the

      house where Bush resided. At some point, Trammell’s cousin Michelle Clifton

      arrived, and someone called the police. Indianapolis Metropolitan Police

      Officer Brett Lorah arrived at the scene, separated everyone, and told them to

      stay separated.


[3]   Approximately two hours later, Bush, Bush’s cousin Stephon Jake, and several

      other individuals walked near where Trammell and Clifton were located.

      Clifton and Jake argued, and Bush approached and sprayed Clifton in the eyes

      with mace three times, and the mace struck other individuals in the area as

      well. Clifton was not holding any weapon when Bush sprayed her with mace.

      Clifton called the police and rinsed her eyes. Officer Lorah responded to the

      scene and could smell mace in the air.


[4]   On June 11, 2016, the State charged Bush with battery resulting in bodily injury

      as a class A misdemeanor. At Bush’s bench trial, the court heard testimony

      from Clifton, Trammell, Officer Lorah, Jake, and Bush. Clifton testified that

      she had her car keys in her hand at the time Bush sprayed her with mace.

      Trammell testified that at some point Clifton had some keys but did not have


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2512 | March 30, 2017   Page 2 of 9
      anything in her hand at the time of the altercation. Officer Lorah testified that

      Clifton told him that she had been in an argument with Jake and that Bush

      came by and maced her and others in the crowd. He testified that Bush told

      him that Clifton had pulled a knife on Jake and that “then she went down there

      and sprayed mace in self-defense more or less.” Transcript at 27. Officer Lorah

      went back to ask further questions of Clifton to see if there was a knife involved,

      and Clifton told him there was no knife. She was holding a purse at the time,

      opened the purse and showed the officer, and told him that he could search her

      purse. Officer Lorah testified he searched Clifton’s purse and there was no

      weapon in it.


[5]   Jake testified that she and Clifton started to argue, Clifton “came toward and I

      pushed to get her away from me,” Clifton pulled out a straight razor and was

      trying to cut her with it, and “that’s when [Bush] maced her with the mace

      because she had the razor in her hands.” Id. at 34-35. On cross-examination,

      Jake indicated that she told an officer that Clifton had a knife. Bush testified

      that, approximately two hours after the first altercation, she received a call from

      a person who stated “come down here and get your grand-daughter and your

      cousin” and “[t]hey getting ready to fight, ole’ girl got a knife.” Id. at 39. Bush

      testified that, when she arrived at the corner, there were “like fifty something

      people,” Clifton had a knife in her hand, and Bush told Jake to come with her.

      Id. at 40. Bush testified, “while we going up the street, [Clifton] started coming

      at us with the knife,” “I sprayed the mace to keep anything from happening,” “I

      sprayed the mace at [Clifton] with the knife,” and “if anybody else got maced it


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2512 | March 30, 2017   Page 3 of 9
      wasn’t attempt and nobody get mad.” Id. at 41. Bush testified Clifton had a

      little silver knife and a purse with her, and that, after she maced Clifton, she

      went up the street and Clifton followed her halfway up the street, “still chasing

      [her] with the knife.” Id. at 42.


[6]   The State called Officer Lorah again for rebuttal, and Officer Lorah testified

      that Jake told him that she had been arguing with Clifton, it began to escalate

      and she pushed Clifton, and that is when Bush arrived. Officer Lorah testified

      “[t]hat was the initial incident, her story had changed a couple of times but the

      part with the knife – she said that after she had pushed Ms. Clifton, Ms. Clifton

      had pulled out a knife. She didn’t do anything with the knife other than hold

      it.” Id. at 46. He indicated that Jake did not tell him anything about Clifton

      running after or lunging at anybody with a knife. He further testified that Bush

      told him she received a phone call saying that Jake and Clifton were about to

      fight, that Bush went down to the intersection and saw Clifton with a knife, that

      Bush sprayed Clifton with the mace, and that Bush did not report that Clifton

      had followed her. When asked whether Bush and Jake reported that a knife

      was involved, Officer Lorah responded affirmatively, and when asked “[t]hat

      was the consistent story between [Bush] and Ms. Jake, correct,” he replied: “At

      first with Ms. Jake’s statement there was no knife involved. That’s why I was

      saying inconsistent. Then when I had talked to her again, she had said that

      after – even though we separated the witnesses, Ms. Bush was yelling across the

      street telling her about the knife if you want me to be exact about that.” Id. at

      47. The court asked if Jake used the word “knife and not razor,” and Officer


      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2512 | March 30, 2017   Page 4 of 9
      Lorah replied affirmatively, and the court asked if the word razor was ever used

      that day, and Officer Lorah answered “No, Your Honor.” Id. at 48.


[7]   Following closing arguments, the court found “I have my doubts that there was

      a knife. I have my doubts that there was even a razor. I find Bush used forced

      [sic] to try and calm an escalating situation and there was yelling, and there was

      [sic] words exchanged. But there was nothing that . . . would have the law

      allow her to mace anyone even if the situation was escalating.” Id. at 53. The

      court found Bush guilty as charged and sentenced her to one year with 359 days

      suspended. 1


                                                    Discussion

[8]   The issue is whether the evidence is sufficient to support Bush’s conviction for

      battery and negate her claim of self-defense. Ind. Code § 35-42-2-1 governs the

      offense of battery and, at the time of the offense, provided that “a person who

      knowingly or intentionally: (1) touches another person in a rude, insolent, or

      angry manner . . . commits battery, a Class B misdemeanor.” Ind. Code § 35-

      42-2-1 (subsequently amended by Pub. L. No. 65-2016, § 33 (eff. Jul. 1, 2016)).

      The offense is a class A misdemeanor if it results in bodily injury to any other

      person. Id. The State alleged that Bush “did knowingly touch Michelle Clifton

      in a rude, insolent, or angry manner, to-wit: she sprayed her with mace,




      1
       The sentencing order indicates the number of actual days Bush was confined was three days and also that
      she had earned credit days of three days.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2512 | March 30, 2017          Page 5 of 9
       resulting in bodily injury to the other person, specifically pain.” Appellant’s

       Appendix at 14.


[9]    Bush argues that her use of mace was necessary to protect herself and Jake from

       the harm that could have been caused by Clifton’s attack and that she defended

       herself and others in self-defense. She states that, when she arrived, Clifton was

       already in the crowd escalating the situation; she observed a knife in Clifton’s

       hand; Clifton kept coming towards her with a knife; and she believed she had

       no choice but to spray the mace at Clifton to protect herself and others. She

       further notes Jake’s testimony that Clifton was holding a razor and argues

       “[r]egardless of what [Clifton] was holding whether a knife, a razor or a house

       key, if a person was holding something looked like a weapon and threatened

       with the weapon, a reasonable person under the circumstances would have

       done something to protect himself/herself from the harm that the weapon

       might have caused.” Appellant’s Brief at 11.


[10]   The State argues “Jake testified that while Clifton was engaged in conversation

       with Jake—and not even speaking with [Bush]—Clifton was pushed by Jake”

       and Bush “then approached Clifton and sprayed mace in her face causing

       pain.” Appellee’s Brief at 8. It asserts that no evidence was introduced that

       Clifton threatened, lunged at, struck, or otherwise attacked Bush, and thus it is

       not possible that Clifton placed Bush in fear of bodily harm. It further contends

       that Bush had no reason to fear that Jake or anyone else was in imminent

       danger of bodily harm from Clifton, Clifton had not threatened Jake and in fact

       according to Jake’s testimony had just been pushed by Jake, and Bush

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2512 | March 30, 2017   Page 6 of 9
       “approached and maced Clifton as her conversation with Jake continued,

       which was an unwarranted, excessive use of force that took place when [Bush]

       had no reasonable fear of death or bodily harm to herself or others.” Id. The

       State contends the trier of fact is entitled to determine which version of the

       incident to credit and Bush’s argument is a request to reweigh the evidence and

       reassess the credibility of the witnesses.


[11]   “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.” Ind. Code § 35-41-3-2(c). A valid

       claim of self-defense is legal justification for an otherwise criminal act. Wilson v.

       State, 770 N.E.2d 799, 800 (Ind. 2002). In order to prevail on a self-defense

       claim, a defendant must demonstrate she was in a place she had a right to be;

       did not provoke, instigate, or participate willingly in the violence; and had a

       reasonable fear of death or great bodily harm. Id. The amount of force a

       person may use to protect herself depends on the urgency of the situation.

       Harmon v. State, 849 N.E.2d 726, 730-731 (Ind. Ct. App. 2006). When a person

       uses more force than is reasonably necessary under the circumstances, the right

       of self-defense is extinguished. Id. at 731.


[12]   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. Wilson,

       770 N.E.2d at 800. 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 by the State beyond a reasonable doubt. Id. at 800-801. A mutual

       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2512 | March 30, 2017   Page 7 of 9
       combatant, whether or not the initial aggressor, must declare an armistice

       before he or she may claim self-defense. Id. at 801; see Ind. Code § 35-41-3-2(g)

       (providing “a person is not justified in using force if . . . 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”). The standard of review for a challenge to the sufficiency of

       the evidence to rebut a claim of self-defense is the same as the standard for any

       sufficiency of the evidence claim. Wilson, 770 N.E.2d at 801. We neither

       reweigh the evidence nor judge the credibility of witnesses. Id. If there is

       sufficient evidence of probative value to support the conclusion of the trier of

       fact, then the verdict will not be disturbed. Id.


[13]   The trial court heard testimony from Clifton, Trammell, Officer Lorah, Jake,

       and Bush. We are mindful that the trier of fact is entitled to determine which

       version of the incident to credit. Barton v. State, 490 N.E.2d 317, 318 (Ind.

       1986), reh’g denied; Scott v. State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007) trans.

       denied. The court as the trier of fact was able to consider the extent to which the

       testimony of each witness was consistent or inconsistent with the testimony of

       the other witnesses and was able to assess the demeanor and credibility of the

       witnesses and weigh their testimony. The court also heard arguments by the

       prosecutor and defense counsel regarding the testimony related to Bush’s claim

       of self-defense. We will not reweigh the evidence or judge the credibility of

       witnesses. See Wilson, 770 N.E.2d at 801.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2512 | March 30, 2017   Page 8 of 9
[14]   Based upon the evidence, the court as the trier of fact could infer that Bush

       participated willingly in the violence, that she did not have a reasonable fear of

       great bodily harm, or that the amount of force she used was unreasonable under

       the circumstances. We conclude based upon the record that the State presented

       evidence of a probative nature from which a reasonable trier of fact could have

       determined beyond a reasonable doubt that Bush did not validly act in self-

       defense and that she was guilty of battery as a class A misdemeanor. See

       Rodriguez v. State, 714 N.E.2d 667, 670-671 (Ind. Ct. App. 1999) (noting that the

       defendant’s version of events differed from other testimony, declining to

       reweigh the evidence, and holding that sufficient evidence existed to rebut the

       defendant’s claim of self-defense), trans. denied.


                                                   Conclusion

[15]   For the foregoing reasons, we affirm Bush’s conviction for battery as a class A

       misdemeanor.


[16]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1611-CR-2512 | March 30, 2017   Page 9 of 9
