MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D), this                              Nov 14 2018, 7:26 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the                            CLERK
                                                                          Indiana Supreme Court
purpose of establishing the defense of res judicata,                         Court of Appeals
                                                                               and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf                                     Curtis T. Hill, Jr.
South Bend, Indiana                                    Attorney General of Indiana
                                                       Matthew B. MacKenzie
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Richard E. Carter,                                         November 14, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-1074
        v.                                                 Appeal from the St. Joseph
                                                           Superior Court
State of Indiana,                                          The Hon. Jenny Pitts Manier,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           71D05-1706-CM-2784



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1074 | November 14, 2018                 Page 1 of 5
                                          Case Summary
[1]   In June of 2017, Richard Carter (“Carter”) and his wife Pamela attended a

      neighborhood barbeque, during which Pamela and Carter consumed alcohol

      and argued. Later, the argument became a physical altercation when Carter

      punched Pamela with a closed fist and “stomped” on her. The State charged

      Carter with Class A misdemeanor domestic battery and a jury found him guilty

      as charged. Carter contends that the State failed to present evidence sufficient

      to rebut his claim that he had acted in self-defense. Because we disagree, we

      affirm.



                            Facts and Procedural History
[2]   On June 25, 2017, Pamela, her son Alvin Avance, and Carter attended a

      neighborhood barbeque in South Bend, during which Pamela and Carter

      consumed alcohol and argued. Avance took his daughter and left, and,

      approximately one hour later, a friend told Avance that he should check on

      Pamela at her home. Avance found Pamela on her bed, asking for help, and on

      the telephone, having called 911. Avance noticed that both of Pamela’s eyes

      appeared to have been hit (with one almost swollen shut) and that she was

      disoriented and had trouble standing on her own. Pamela told Avance, “He

      hurt me, he hurt me, he hurt me.” Tr. Vol. II p. 39.


[3]   South Bend Police Officer Matthew Ryan responded to Pamela’s 911 call and

      arrived with Pamela still on the line. Officer Ryan arrived to find Carter,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1074 | November 14, 2018   Page 2 of 5
      Pamela, and Avance in the home and noticed that Pamela’s left eye was almost

      swollen shut. When asked what had happened, Pamela explained to Officer

      Ryan that she began arguing with Carter when she returned from a store,

      apparently for failing to purchase him some cigarettes. The argument escalated,

      and Carter struck her in the face with a closed fist. Pamela fell to the ground,

      and Carter began “stomping” on her. Tr. Vol. II p. 72. At some point after

      Carter punched her, Pamela managed to scratch him on the face.


[4]   On June 29, 2017, the State charged Carter with domestic battery. On March

      2, 2018, a jury found Carter guilty as charged, and, on March 28, 2018, the trial

      court sentenced him to 3551 days of incarceration.


                                   Discussion and Decision
[5]   To convict Carter of domestic battery, the State was required to prove that he

      knowingly touched Pamela, a family or household member, in a rude, insolent,

      or angry manner. Ind. Code § 35-42-2-1.3(a)(1). Carter does not deny striking

      Pamela but contends that the State failed to rebut his claim that he acted in self-

      defense:


               When a defendant challenges the State’s sufficiency of the
               evidence to rebut a claim of self-defense, the standard of review
               remains the same as for any sufficiency of the evidence claim.
               We neither reweigh the evidence nor assess the credibility of



      1
        The trial court indicated at Carter’s sentencing hearing that his sentence was to be 365 days of
      incarceration, (Tr. Vol. II 159, 160), but the trial court’s “Judgment Order” indicates that the sentence is 355
      days. The State seems to concede that Carter’s sentence is 355 days. (Appellee’s Br. 4).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1074 | November 14, 2018                    Page 3 of 5
               witnesses but look solely to the evidence most favorable to the
               judgment with all reasonable inferences to be drawn therefrom.
               We will affirm a conviction where such evidence and reasonable
               inferences constitute substantial evidence of probative value
               sufficient to support the judgment.
               Self-defense is recognized as a valid justification for an otherwise
               criminal act. When raised, a defendant must establish that he or
               she was in a place where he or she had the right to be, acted
               without fault, and was in reasonable fear or apprehension of
               death or great bodily harm. Once a defendant claims self-
               defense, the State bears the burden of disproving at least one of
               these elements beyond a reasonable doubt for the defendant’s
               claim to fail. 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. Whether the State has met its burden is a
               question of fact for the jury.
      Miller v. State, 720 N.E.2d 696, 699–700 (Ind. 1999) (citations omitted).


[6]   Carter contends that he was without fault and struck Pamela out of reasonable

      fear for his safety. Officer Ryan, however, testified that Pamela told him that

      Carter was the initial aggressor and that she had scratched Carter only after he

      had punched her in the face with a closed fist and “stomped” on her. The jury

      was entitled to believe this evidence and conclude that Carter was the initial

      aggressor, and “[s]elf-defense […] is unavailable to a defendant who is the

      initial aggressor[.]”2 Id. at 700. Carter points to his testimony that Pamela “got



      2
         Indiana Code section 35-41-3-2(g) provides a limited exception to this general rule, namely, that “a person
      is not justified in using force if [the person 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.” Carter does not claim, much less establish, that the
      altercation in this case fits within this scenario.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1074 | November 14, 2018                   Page 4 of 5
      in [his] face[,] kind of went off on [him, and] scratched [him] in [his] face”

      before he used any force against her. Tr. Vol. II pp. 90, 92. The jury, however,

      was not required to credit this testimony and did not. Carter’s argument is

      nothing more than an invitation to reweigh the evidence, which we will not do.

      Miller, 720 N.E.2d at 699.


[7]   The judgment of the trial court is affirmed.


      Bailey, J., and Mathias, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1074 | November 14, 2018   Page 5 of 5
