MEMORANDUM DECISION
                                                                    Feb 11 2015, 10:09 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing 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

                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Terry Sowell                                             February 11, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A05-1407-CR-298
        v.                                               Appeal from the Marion Superior
                                                         Court Criminal Division 8
                                                         The Honorable Amy Jones, Judge
State of Indiana,                                        Pro Tempore
Appellee-Plaintiff                                       Case No. 49F08-1403-CM-013550




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015     Page 1 of 6
[1]   Terry Sowell appeals his convictions of two counts of class A misdemeanor

      Battery.1 He presents the following issue for our review: Did the State present

      sufficient evidence to support his convictions?


[2]   We affirm.

[3]   On the evening of March 15, 2014, Sowell was at the residence he shared with

      his wife and two stepchildren, twenty-year old Tamara and sixteen-year-old W.

      Tamara and W. overheard Sowell shouting at their mother in the kitchen and

      went to investigate. When they got to the kitchen, however, they saw that their

      mother was no longer in the room, so they walked down the hallway back

      toward their respective bedrooms. Sowell followed them, telling them that they

      were rude and disrespectful. Tamara told Sowell that he did not know what he

      was talking about, and Sowell responded by throwing a hard plastic cup with

      liquid at Tamara, striking her in the face and causing her pain. Tamara

      responded by hitting Sowell, and Sowell then grabbed Tamara by the hair and

      the two fell to the floor. Sowell began choking Tamara. When W. saw what

      was happening, he grabbed a knife and stabbed Sowell twice in the back.

      Sowell then got up and chased W. out of the house. When Sowell caught up




      1
       Ind. Code Ann. § 35-42-2-1 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular
      Session and Second Regular Technical Session of the 118th General Assembly).

      Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015      Page 2 of 6
      with W., he threw him to the ground and stuck his finger in W.’s eye, causing

      pain. Sowell then got off of W., went back into the house, and told W. and

      Tamara to stay out of the house.


[4]   Tamara then re-entered the house to get her shoes, and W. accompanied her.

      Sowell told them to call their father because he wanted to fight him. Tamara

      knocked the phone out of Sowell’s hand and she and W. then ran outside with

      Sowell in pursuit. Sowell began throwing things at W., including a grill, a two

      by four, and a chair. The chair grazed W.’s leg. Sowell then grabbed Tamara

      and pinned her to the ground. W., who had obtained another knife, then cut

      Sowell’s arm, causing him to release Tamara. Tamara then got up and went to

      find her mother, but by that time the police had arrived. After police spoke

      with the family, Sowell was arrested.

[5]   The State charged Sowell with two counts of class A misdemeanor battery, one

      count listing Tamara as the victim and the other listing W. as the victim. A

      bench trial was held on June 4, 2014, and Sowell was found guilty as charged.

      Sowell now appeals.

[6]   Sowell argues that the State presented insufficient evidence to support his

      convictions. In reviewing a challenge to the sufficiency of the evidence, we

      neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.

      State, 911 N.E.2d 601 (Ind. Ct. App. 2009). Instead, we consider only the

      evidence supporting the conviction and the reasonable inferences to be drawn

      therefrom. Id. If there is substantial evidence of probative value from which a


      Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015   Page 3 of 6
      reasonable trier of fact could have drawn the conclusion that the defendant was

      guilty of the crime charged beyond a reasonable doubt, then the judgment will

      not be disturbed. Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct. App. 2008). It

      is not necessary that the evidence overcome every reasonable hypothesis of

      innocence; rather, the evidence is sufficient if an inference may reasonably be

      drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144 (Ind.

      2007).

[7]   In order to convict Sowell of both counts of class A misdemeanor battery as

      charged, the State was required to prove that he knowingly touched both

      Tamara and W. in a rude, insolent, or angry manner and that the touching

      resulted in bodily injury. See I.C. § 35-42-2-1. On appeal, Sowell challenges

      only the intent element of the offenses; that is, he asserts that the State

      presented insufficient evidence to prove that he acted knowingly.


[8]   Intent is a mental state and, absent an admission by the defendant, the trier of

      fact must resort to the reasonable inferences drawn from both the direct and

      circumstantial evidence to determine whether the defendant had the requisite

      intent to commit the offense in question. Stokes v. State, 922 N.E.2d 758 (Ind.

      Ct. App. 2010), trans. denied. A person’s conduct is knowing “if, when he

      engages in the conduct, he is aware of a high probability that he is doing so.”

      Ind. Code Ann. § 35-41-2-2 (West, Westlaw current with all 2014 Public Laws

      of the 2014 Second Regular Session and Second Regular Technical Session of

      the 118th General Assembly).



      Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015   Page 4 of 6
[9]    Sowell argues that he could not have acted knowingly because he was being

       physically attacked by Tamara and W. According to Sowell, “[w]hen one is

       under assault by others, it cannot be argued that he acts knowingly when he is

       being stabbed in the back.” Appellant’s Brief at 6. This argument is nothing

       more than a request to reweigh the evidence and judge the credibility of

       witnesses. The evidence favorable to the judgment establishes that Sowell

       initiated the altercation with Tamara by throwing a cup at her face. When

       Tamara hit him back, he grabbed her hair and began choking her when they fell

       to the ground. W. then came to his sister’s defense by stabbing Sowell in the

       back. Sowell then got up and chased W. outside, where he threw him to the

       ground and poked him in the eye. It was certainly reasonable for the trial court

       to infer from these actions that Sowell acted knowingly.


[10]   Moreover, even if Sowell had acted in response to being attacked, this would

       not mean that he did not act knowingly; rather, it would raise the possibility

       that his actions were justified as self-defense. Sowell concedes that he is

       precluded from raising self-defense on appeal because it was not offered as a

       defense at trial. Nevertheless, his sufficiency argument is a thinly-veiled

       attempt to do just that—although he cites no authority and develops no cogent

       analysis in support of a self-defense claim. See Smith v. State, 822 N.E.2d 193,

       202-03 (Ind. Ct. App. 2005) (“a party waives any issue raised on appeal where

       the party fails to develop a cogent argument or provide adequate citation to

       authority and portions of the record”), trans. denied. Waiver notwithstanding,

       we note that the defense of self-defense is not available when the defendant “has


       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015   Page 5 of 6
       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 (West, Westlaw current with all

       2014 Public Laws of the 2014 Second Regular Session and Second Regular

       Technical Session of the 118th General Assembly). See also Weedman v. State,

       21 N.E.3d 873 (Ind. 2014). The evidence set forth above establishes that Sowell

       was the initial aggressor in this incident, and there is no indication that he

       attempted to withdraw from the encounter or communicated his intent to do so.

       For all of these reasons, Sowell’s convictions were supported by sufficient

       evidence.

[11]   Judgment affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015   Page 6 of 6
