Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                      Sep 30 2014, 9:55 am
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:

RANDY M. FISHER                                   GREGORY F. ZOELLER
Deputy Public Defender                            Attorney General of Indiana
Leonard, Hammond, Thoma & Terrill
Fort Wayne, Indiana                               RICHARD C. WEBSTER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

TARAINKA A. CAIN,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )        No. 02A03-1402-CR-63
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Wendy W. Davis, Judge
                             Cause No. 02D06-1306-FD-699



                                      September 30, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                   CASE SUMMARY

       Appellant-Defendant Tarainka A. Cain appeals her convictions for Class D felony

criminal recklessness, Class A misdemeanor battery, Class B felony aggravated battery,

and Class C felony criminal recklessness. Cain struck Toesha Scott in the head with a glass

beer bottle, breaking the bottle and severely lacerating Scott’s face. Cain argues that

Appellee-Plaintiff the State of Indiana failed to present sufficient evidence to negate her

claim of self-defense. Finding that Cain and Scott were engaged in mutual combat when

Cain struck Scott with the beer bottle, we conclude that the State sufficiently negated

Cain’s self-defense claim.    Cain also argues that her convictions violate Indiana’s

prohibition against double jeopardy. Finding each of Cain’s convictions to be supported

by the same alleged act—that of striking Scott with a beer bottle—we conclude that Indiana

common law prohibits Cain’s convictions for Class D felony criminal recklessness, Class

A misdemeanor battery, and Class C felony criminal recklessness. Only Cain’s Class B

felony aggravated battery conviction can stand. We affirm in part and vacate in part.

                      FACTS AND PROCEDURAL HISTORY

       On June 15, 2013, Cain and Scott attended a bridal shower for Scott’s cousin

Candace at a home located on Gay Street in Fort Wayne. Scott’s sister, Tekee, was also in

attendance. Following the bridal shower, the attendees all walked to the nearby Veterans

of Foreign Wars post (“the VFW”) for drinks. At some point, Scott and Tekee got into a

physical altercation in the VFW bathroom. Cain intervened and separated Scott and Tekee.

As the three exited the bathroom, Scott asked Cain why she had intervened, and a fight

between Scott and Cain ensued. Once the fight was broken up, everyone was asked to

                                            2
leave the VFW.

       Back at the Gay Street home, Scott apologized to Candace for fighting with Cain

and getting everyone kicked out of the VFW. Cain interrupted Scott’s apology from

several feet away, stating, “I’m going to beat you’re a** again.” Tr. p. 180. Scott then

turned and approached Cain, clapping her hands while stating, “[S]ounds like you would

beat my a**, you going to beat my a**[.] What is your issue?” Tr. p. 181. Another fight

between Scott and Cain ensued, during which Cain struck Scott in the head with a glass

beer bottle, breaking the bottle and severely lacerating Scott’s face. Scott fell to the ground,

and Cain fled the scene.

       On June 20, 2013, the State charged Cain with Count I, Class D felony criminal

recklessness; and Count II, Class A misdemeanor battery. On July 12, 2013, the State

added Count III, Class B felony aggravated battery; and Count IV, Class C felony criminal

recklessness. On September 26, 2013, the State added Count V, Class C felony criminal

recklessness, and, on October 7, 2013, the State dismissed Count IV. A jury trial was held

on January 8, 2013, during which Cain argued that she struck Scott with the beer bottle in

self-defense. The jury found Cain guilty as charged. On February 5, 2014, the trial court

sentenced Cain to one year and one hundred eighty-three days on Count I, one year on

Count II, ten years with six years executed on Count III, and four years on Count V. All

of Cain’s sentences were ordered to be served concurrently, for an aggregate sentence of

ten years with six years executed.

                             DISCUSSION AND DECISION

                                       I. Self-Defense
                                               3
      Cain argues that the State presented insufficient evidence to negate her claim of self-

defense.

              A valid claim of defense of oneself or another person is legal
      justification for an otherwise criminal act. Ind. Code § 35-41-3-2(a); Wallace
      v. State, 725 N.E.2d 837, 840 (Ind. 2000). In order to prevail on such a claim,
      the defendant must show that he: (1) was in a place where he had a right to
      be; (2) did not provoke, instigate, or participate willingly in the violence; and
      (3) had a reasonable fear of death or great bodily harm. McEwen v. State,
      695 N.E.2d 79, 90 (Ind. 1998). 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. Id. If a defendant is convicted despite his
      claim of self-defense, this Court will reverse only if no reasonable person
      could say that self-defense was negated by the State beyond a reasonable
      doubt. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999). … 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 of the evidence claim.
      Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999). 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.

Wilson v. State, 770 N.E.2d 799, 800-01 (Ind. 2002).

      Cain acknowledges that she struck Scott with the beer bottle while the two were

engaged in “mutual combat” but claims she and Scott only “began fighting each other …

after Ms. Scott aggressively approached Ms. Cain, poking her and making hand gestures

in her face.” Appellant’s Br. p. 14. “[A] mutual combatant, whether or not the initial

aggressor, must declare an armistice before he or she may claim self-defense.” Wilson v.

State, 770 N.E.2d 799, 801 (Ind. 2002); Ind. Code § 35-41-3-2(g)(3). Cain does not assert,

nor does the record reveal, that she communicated the requisite desire to stop fighting

before she struck Scott with the beer bottle. Therefore, we conclude that a reasonable



                                             4
person could say that self-defense was negated by the State beyond a reasonable doubt.

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

                                  II. Double Jeopardy

       Cain also argues that her convictions violate Indiana’s prohibition against double

jeopardy. Whether convictions violate double jeopardy is a pure question of law, which

we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012), trans.

denied. Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall

be put in jeopardy twice for the same offense.”

       In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), our Supreme Court
       concluded that two or more offenses are the same offense in violation of
       Article I, Section 14 if, with respect to either the statutory elements of the
       challenged crimes or the actual evidence used to obtain convictions, the
       essential elements of one challenged offense also establish the essential
       elements of another challenged offense.

Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App. 2012).

       Additionally, “Indiana courts have ‘long adhered to a series of rules of statutory

construction and common law that are often described as double jeopardy, but are not

governed by the constitutional test set forth in Richardson.’” Simmons v. State, 793 N.E.2d

321, 327 (Ind. Ct. App. 2003) (quoting Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002).

This body of common law includes conviction and punishment for a crime which consists

of the very same act as another crime for which the defendant has been convicted and

punished. Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002) (finding defendant’s act of

stabbing victim could not support conviction for both Class A felony burglary and

attempted murder); Simmons, 793 N.E.2d at 327 (finding defendant’s act of striking victim


                                             5
with a baseball bat could not support conviction for battery as both a Class C felony and

Class A misdemeanor).

       Cain claims that the act alleged in support of each of her four convictions is the

same—that of striking Scott in the head with a beer bottle. The State contends that Cain

struck Scott with the bottle three times, each a separate act supporting Cain’s convictions

on Counts I, II, and III, respectively.1 We agree with Cain. Although there was evidence

before the jury that Cain struck Scott with a beer bottle three times, a review of the charging

informations and the State’s opening and closing arguments reveals that only the strike that

severely lacerated Scott’s face was presented in support of Cain’s convictions. The State

made no attempt to differentiate the other two alleged strikes as supporting separate

convictions. See Rutherford v. State, 866 N.E.2d 867, 872 (Ind. Ct. App. 2007) (discussing

such differentiation under the Richardson “same evidence” test). Only Cain’s conviction

on Count III can stand; therefore, we vacate Cain’s convictions on Counts I, II, and V.

       The judgment of the trial court is affirmed in part and vacated in part.

BARNES, J., and BROWN, J., concur.




       1
           The State seems to concede that Cain’s conviction on Count V is a double jeopardy violation.
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