      MEMORANDUM DECISION
                                                                             FILED
      Pursuant to Ind. Appellate Rule 65(D),                            Sep 27 2016, 7:51 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                                         Gregory F. Zoeller
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Tyler G. Banks
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Mark H. Greedy,                                          September 27, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1512-CR-2324
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Steven J. Rubick,
      Appellee-Plaintiff                                       Magistrate
                                                               Trial Court Cause No.
                                                               49G07-1508-CM-30942



      Mathias, Judge.


[1]   The State charged Mark Greedy (“Greedy”) with the battery and bodily injury

      of Karen Hiser (“Hiser”), his housemate. Greedy was convicted after a bench


      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2324 | September 27, 2016   Page 1 of 8
      trial in Marion Superior Court. He now attacks his conviction on the grounds of

      insufficient evidence and the failure of his affirmative defense of self-defense.

[2]   We affirm.


                                 Facts and Procedural Posture

[3]   In August 2015, Greedy and Hiser lived together as housemates in Greedy’s

      Indianapolis home. On August 28, 2015, Hiser was entertaining two friends,

      Jay and Alissa, whom Greedy did not like. As a result, Hiser reported, Greedy

      engaged in a sustained campaign of harassment of Hiser and her friends in an

      attempt to drive Jay and Alissa from his house. That campaign ended in

      violence early in the morning of August 29, when Hiser followed Greedy into

      her bedroom to speak with him. As she turned the corner into the room, a cane-

      wielding Greedy struck Hiser twice across the face. Jay and Alissa fled; Hiser

      took refuge at her mother’s house and called the police.


[4]   Officers of the Indianapolis Metropolitan Police Department (“IMPD”) were

      dispatched to Hiser’s mother’s home, where they took Hiser’s statement and

      photographs of her face. Those photographs show swelling, bruising, and

      possibly a cut. Later in the morning of August 29, IMPD officers accompanied

      Hiser to Greedy’s house, where Hiser collected some belongings and officers

      interviewed, photographed, and then arrested Greedy for battering Hiser.

      Greedy told the officers that Hiser attacked him and he retaliated.


[5]   Greedy was charged with battery causing bodily injury, a Class A

      misdemeanor. His case was tried to the bench in Marion Superior Court on

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      December 3, 2015. Hiser and two responding IMPD officers testified for the

      State; Greedy did not testify and presented no evidence in his defense. The

      court found Greedy guilty and sentenced him to thirty days’ confinement in the

      Marion County jail. This appeal followed.

       Whether Greedy’s Guilt Was Proved by Sufficient Evidence

[6]   The State bears the burden of proving all elements of the crime charged beyond

      a reasonable doubt. Powers v. State, 540 N.E.2d 1225, 1227 (Ind. 1989). On

      direct appeal, a defendant may attack his conviction as unsupported by

      evidence sufficient to have satisfied the State’s burden.

[7]   When reviewing the sufficiency of the evidence, we neither reweigh the

      evidence nor reevaluate its credibility. Henley v. State, 881 N.E.2d 639, 652 (Ind.

      2008). Rather, we view the facts of the case and the reasonable inferences to be

      drawn from them in the light most favorable to the judgment. Bailey v. State, 907

      N.E.2d 1003, 1005 (Ind. 2009). We affirm unless no reasonable trier of fact

      could have found the elements of the crime proved beyond a reasonable doubt.

      Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007). A conviction may be upheld

      even if supported only by the uncorroborated testimony of a single witness,

      including the victim’s. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).


[8]   Here, Hiser testified that Greedy hit her with a cane twice across the face. Tr. p.

      7-8. An IMPD officer testified to Greedy’s own statement that Greedy had

      “fought” Hiser. Id. at 33. The photographic evidence, taken within hours of the

      incident, showed bruising, swelling, and possibly a cut on Hiser’s face. Ex. Vol.,


      Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2324 | September 27, 2016   Page 3 of 8
       State’s Ex. 2, Def.’s Ex. B. No more is required for us to uphold the trial court’s

       judgment that Greedy knowingly touched Hiser in a rude, insolent, or angry

       manner so as to cause her bodily injury, see Ind. Code § 35-42-2-1(c) (2015), and

       was thus guilty of the crime charged.

[9]    Greedy argues that the record will bear, at most, a finding of “mutual combat,”

       but not battery. Appellant’s Br. at 10. This argument is unavailing. Combat

       does not excuse or preclude battery because first aggression is not an element of

       the offense. See I.C. § 35-42-2-1(c) (2015). Two combatants are generally

       batterers of one another by definition, and it is entirely within the discretion of

       the prosecutor to charge either, both, or neither. Cain v. State, 955 N.E.2d 714,

       718 (Ind. 2011) (“Prosecutors have broad discretionary power to choose the

       persons whom they prosecute . . . .”). Indeed, the trial court was willing to

       credit the defense’s claim that “there was a mutual fight” between Greedy and

       Hiser, Tr. p. 45, but concluded that this does not acquit Greedy of battery. We

       agree.

         Whether Greedy’s Defense of Self-Defense Was Raised and
                  Then Disproved by Sufficient Evidence

[10]   We review challenges to the sufficiency of the evidence rebutting an accused’s

       defense under the same standard as any sufficiency challenge. Wilson v. State,

       770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh evidence nor reevaluate

       witness credibility. Id. The evidence is viewed in the light most favorable to the

       judgment below, which will not be disturbed unless no reasonable trier of fact

       could have reached the same conclusion. Id.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2324 | September 27, 2016   Page 4 of 8
[11]   Because the State is required to prove the elements of its case beyond a

       reasonable doubt, due process requires careful allocation of burdens of proof

       with respect to an accused’s defenses. See Mullaney v. Wilbur, 421 U.S. 684

       (1975). Of self-defense, it is usually said, “[w]hen 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” of the defense. Wilson, 770 N.E.2d at 800.

       If a defendant is convicted despite such a claim, the conviction will be upheld

       on review unless no reasonable trier of fact could have found the defense

       negated beyond a reasonable doubt. Id. at 800-01.


[12]   At the threshold, it is therefore necessary to decide whether the State’s burden

       has attached, that is, whether a claim of self-defense has been “raised” and

       “found support in the evidence.”


[13]   Self-defense is an affirmative defense of justification, “admitting that the facts of

       the crime occurred but contending that the acts were justified.” Moon v. State,

       823 N.E.2d 710, 716 (Ind. Ct. App. 2005), trans. denied. Indiana has allocated

       the burden as to these defenses in two steps. Id. The first step requires the

       defendant to produce evidence raising the defense. Id. This burden is sometimes

       referred to as the burden of production. Hirsch v. State, 697 N.E.2d 37, 43 (Ind.

       1998) (quoting 2 Paul H. Robinson, Criminal Law Defenses § 132 (1984)) (“The

       burden of production for the defense of self-defense is always on the

       defendant.”). See also Moore v. State, 673 N.E.2d 776, 779 (Ind. Ct. App. 1996)

       (defining “burden of production” as “the burden of producing enough evidence



       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2324 | September 27, 2016   Page 5 of 8
       such that [submission of the defense to the fact-finder] is warranted”), trans.

       denied.


[14]   This allocation differs from that required by defenses of mitigation, claims

       which mitigate but do not wholly excuse the defendant’s culpability. Adkins v.

       State, 887 N.E.2d 934, 938 (Ind. 2008) (discussing “sudden heat” as a

       mitigation defense to murder and holding an unloaded weapon to be a

       mitigation defense to pointing a firearm). In such cases, the defendant bears

       “only the burden of placing the issue in question where the State’s evidence has

       not done so.” Id. By contrast, in the affirmative defense of self-defense, the

       defendant bears the burden of production or the initial burden of proof, and

       “cannot make exculpatory statements outside court, present no evidence in

       defense, preclude the state from cross-examining the assertions, and then be

       entitled to have the self-serving statements constitute substantive evidence”

       supporting submission of the defense to the trier of fact. Dearman v. State, 743

       N.E.2d 757, 761 (Ind. 2001) (quoting Battles v. State, 688 N.E.2d 1230, 1234

       (Ind. 1997)) (distinguishing defense of accident, on which the accused bears the

       initial burden, from defenses of mitigation like sudden heat).


[15]   In this light, we conclude that Greedy did not carry even the modest burden the

       law placed on him. The record discloses no notice to the trial court that Greedy

       intended to rely on the defense of self-defense. See Appellant’s App. pp. 7–11

       (chronological case summary). Greedy himself did not testify, was thus

       unavailable for cross-examination, and presented no evidence at trial. Tr. p. 42.

       His closing argument did not so much as gesture in the direction of the defense

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2324 | September 27, 2016   Page 6 of 8
       but was devoted entirely to attacking Hiser’s credibility. Id. at 43-44. Before

       rendering judgment, the trial court made a brief statement of its findings which

       did not apparently contemplate self-defense. See id. at 45-46 (finding a “mutual

       fight” occurred without finding a first aggressor). The sole reference made at

       trial to any such claim was Greedy’s out-of-court statement to an IMPD officer

       that Hiser attacked him first, a statement elicited from the officer on direct

       examination by the State. Id. at 33. The statement was not thereafter referenced,

       even on cross-examination of the testifying officer by Greedy’s counsel. See id.

       at 35-41. Greedy was therefore not entitled to have his affirmative defense

       submitted to the trier of fact for consideration, and it will not be considered for

       the first time on appeal. Lafary v. Lafary, 476 N.E.2d 155, 159 (Ind. Ct. App.

       1985). See also Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013)

       (citing Ind. Trial Rule 8(C) (“A responsive pleading shall set forth affirmatively

       and carry the burden of proving . . . any other matter constituting an . . .

       affirmative defense.”)), trans. denied.


[16]   In any event, consideration of Greedy’s claim on the merits would be of no

       value to him. Self-defense generally does not shield an accused from liability if

       he participated willingly in the violence. Wilson, 770 N.E.2d at 800. In such

       cases, a mutual combatant must first declare an armistice before claiming self-

       defense. Id. at 801; I.C. § 35-41-3-2(g)(3).


[17]   As noted above, the trial court was willing to credit the defense’s claim of a

       “mutual fight” between Greedy and Hiser. Tr. p. 45. However, no evidence at

       all appears in the record that would support the claim that Greedy withdrew

       Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2324 | September 27, 2016   Page 7 of 8
       from combat, declared an armistice, and was then again threatened or attacked

       by Hiser. Greedy’s self-defense claim would therefore fail on the merits.

[18]   More than sufficient evidence appears in the record to support Greedy’s

       conviction for battery causing bodily injury. Greedy failed to raise properly the

       defense of self-defense. Even had he done so, no evidence favorable to the

       judgment would support that defense. His conviction must therefore stand.

[19]   Affirmed.


       Robb, J., and Brown, J., concur.




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