MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Mar 29 2017, 8:39 am

court except for the purpose of establishing                       CLERK
the defense of res judicata, collateral                        Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Thomas P. Keller                                         Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Richard C. Webster
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Andrew Swank,                                            March 29, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1606-CR-1395
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Miller, Judge
Appellee-Plaintiff                                       Trial Court Cause No.
                                                         71D01-1509-F3-47



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017   Page 1 of 7
[1]   Andrew Swank (“Swank”) challenges his conviction of Level 3 felony

      aggravated battery 1 for shooting his uncle in the stomach. He asserts the State

      failed to rebut his claim of self-defense. We affirm.



                                Facts and Procedural History
[2]   In the early morning hours of September 22, 2015, Swank got in to a heated

      argument with his uncle, Donald Swank (“Donald”). Donald was almost back

      to his house, where Swank was waiting for him, when Donald received a call

      from Swank, who was “[i]rate” and worried about his clothes, which were in

      the van Donald was driving to buy crack cocaine. (Tr. at 29.) He told Donald,

      “I’m going to shoot you, if my F-ing clothes are gone.” (Id. at 77.) Donald and

      Swank yelled at one another on the telephone until Donald pulled the van into

      the driveway.


[3]   Upon his arrival, Donald quickly exited the van and ran in the front door of the

      house to confront Swank. Donald ran up to Swank, who was seated in a chair

      in the back room, and told him to get out of the house. Swank pulled a .22

      caliber pistol out of his waistband and pointed it at Donald. Donald told

      Swank he had something for him, and Donald left the room to get an

      aluminum baseball bat. Donald then stood in the kitchen, screaming for Swank

      to “get the fuck out,” (id. at 234), and beating the stove with the baseball bat.




      1
          Ind. Code § 35-42-2-1.5 (2014).


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017   Page 2 of 7
[4]   Erik Swank (“Erik”), Swank’s father and Donald’s brother, stepped between the

      two fighting men, asked them both to calm down, and told Swank to leave via

      the back door of the house to avoid walking past Donald. Swank put on his

      shoes, grabbed his backpack, and walked out the back door. Thirty seconds to

      a minute later, when Donald had not heard the van leave to take Swank away

      from the house, Donald dropped the bat in the kitchen and walked out the front

      door.


[5]   From the porch, which was on the driver’s side of the van, Donald again yelled

      for Swank to leave. Swank was on the passenger side of the van and had the

      front passenger door open. Swank stepped up on the floorboard of the van,

      leaned over the front of the windshield of the van, and pointed his gun at

      Donald. Swank told Donald to go back in the house and announced he was

      going to shoot Donald, but Donald did not retreat into the house. Swank fired

      a shot that hit Donald in the stomach. Swank then fled the scene, and Donald

      was taken to the hospital for emergency surgery.


[6]   The State charged Swank with Level 3 felony aggravated battery because the

      gunshot wound created a substantial risk that Donald would die. See Ind. Code

      § 35-42-2-1.5 (2014) (“A person who knowingly or intentionally inflicts injury

      on a person that creates a substantial risk of death . . . .”). At trial, Swank

      admitted shooting the gun and admitted the injury created a substantial risk of




      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017   Page 3 of 7
      death. 2 Thus, the only issue before the jury was whether the shooting occurred

      in self-defense. The jury found Swank guilty, and the trial court imposed a

      twelve-year sentence.



                                   Discussion and Decision
[7]   Swank argues the State did not present sufficient evidence to rebut his claim of

      self-defense. “A valid claim of self-defense is legal justification for an otherwise

      criminal act.” Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011).


                 (c) 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.


                 (d) A person:




      2
          Donald needed emergency surgery, during which doctors had to remove part of his bowel and colon.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017           Page 4 of 7
                      (1) is justified in using reasonable force, including deadly
                      force, against any other person; and


                      (2) does not have a duty to retreat;


              if the person reasonably believes that the force is necessary to
              prevent or terminate the other person’s unlawful entry of or
              attack on the person’s dwelling, curtilage, or occupied motor
              vehicle.


      Ind. Code § 35-41-3-2 (2013). To have the statutorily-required reasonable belief

      that the force used was necessary, a defendant must have had both a subjective

      belief that the force used was necessary to prevent serious bodily injury and that

      a reasonable person would have believed the force he used was necessary under

      the circumstances. Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007).


[8]   When a defendant’s claim of self-defense finds support in the evidence, the

      State must negate at least one of the 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-defense, or by simply relying upon the sufficiency of its evidence in

      chief.” Id.


[9]   Our review of an appellant’s challenge of the State’s evidence rebutting a claim

      of self-defense is the same as for any sufficiency claim. Id. We consider only

      the evidence and inferences that support the verdict; and we may not reweigh

      evidence or assess witness credibility. Id. We will not reverse unless “no


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017   Page 5 of 7
       reasonable person could say that self-defense was negated by the State beyond a

       reasonable doubt.” Id.


[10]   Swank notes Erik testified that Swank had the gun out after Donald began

       banging the bat on the stove, that Swank left the house after getting his

       possessions, and that Donald then went out the front door with the bat. He also

       notes his own testimony that Donald approached him outside with the bat, that

       he was afraid Donald would hit him with the bat, and that Donald was only

       one step away from him when he shot the gun. Based on those pieces of

       testimony, Swank argues he “was justified in using deadly force. He had

       withdrawn from the initial confrontation. Donald was the individual, who

       while armed with the baseball bat, approached [Swank] outside by the van.

       [Swank] was in imminent danger, and fired the .22 pistol.” (Appellant’s Br. at

       10.) However, Swank is relying on the evidence most favorable to his defense,

       and that is not the evidence we are to consider. See King, 61 N.E.3d at 1283

       (“We consider only the probative evidence and reasonable inferences drawn

       from the evidence that support the verdict.”).


[11]   The State presented three witnesses who testified Donald left the baseball bat in

       the house when he went out to the porch. In addition, Donald was standing on

       or in front of the porch, which was on the driver’s side of the van, and Swank

       was on the passenger side of the van. As it would be impossible for an unarmed

       Donald to have harmed Swank when a van was between them, the State’s

       evidence demonstrated Swank could not have had a reasonable belief that he

       needed to shoot Donald. See id. at 1284 (defendant’s claim of a fight

       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017   Page 6 of 7
       undermined from autopsy evidence that victim was shot in the head from more

       than three feet away).


[12]   Because the State presented sufficient evidence to rebut Swank’s claim of self-

       defense, we affirm Swank’s conviction of Level 3 felony aggravated battery.


[13]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017   Page 7 of 7
