MEMORANDUM DECISION                                                           FILED
                                                                         Jul 20 2018, 6:28 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                                  CLERK
                                                                         Indiana Supreme Court
precedent or cited before any court except for the                          Court of Appeals
                                                                              and Tax Court
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Mark F. James                                          Curtis T. Hill, Jr.
Anderson, Agostino & Keller P.C.                       Attorney General of Indiana
South Bend, Indiana                                    Lee M. Stoy, Jr.
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Bryan Joseph Benway,                                       July 20, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-66
        v.                                                 Appeal from the St. Joseph
                                                           Superior Court
State of Indiana,                                          The Honorable John M.
Appellee-Plaintiff.                                        Marnocha, Judge
                                                           The Honorable Paul E. Singleton,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           71D02-1704-CM-1955



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-66 | July 20, 2018                      Page 1 of 5
                                           Case Summary
[1]   In February of 2017, Bryan Benway went to the house he used to live in with

      Sara Singleton to retrieve some of his belongings. When told his belongings

      were no longer there, Benway pushed Singleton and punched her several times.

      David Rosanski intervened, and Benway struck him in the face. The State

      charged Benway with Class A misdemeanor domestic battery and Class B

      misdemeanor battery. After a bench trial, the trial court found Benway guilty

      as charged and sentenced him to an aggregate sentence of 361 days with 301

      suspended. Benway contends that the State failed to rebut his claim that he

      acted in self-defense. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On February 11, 2017, Benway arrived unannounced at Singleton’s father’s

      house in South Bend and let himself in the front door without permission.

      Singleton and Benway had been in a relationship and lived together in the

      house until Benway was incarcerated briefly, and Benway was returning for his

      belongings. When Benway entered the house, Singleton and Rosanski were

      sitting in the living room. Benway and Singleton began to argue when she told

      him that none of his belongings were in the house. When Singleton asked

      Benway to leave, he pushed her to the ground and punched her in the face and

      head a “handful of times” with closed fists. Tr. Vol. I p. 12. Rosanski

      intervened by pulling Benway from Singleton. Benway hit Rosanski in the face,

      which split open his left eyebrow. Rosanski let go of Benway when Benway

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-66 | July 20, 2018   Page 2 of 5
      said he was done fighting, and Benway attempted to attack Singleton again.

      Rosanski restrained Benway again, and he finally left. Police who responded

      observed multiple abrasions on Rosanski’s face and redness and swelling on

      Singleton’s right cheek and a red mark on her head near her temple.


[3]   On May 1, 2017, the State charged Benway with Class A misdemeanor

      domestic battery and Class B misdemeanor battery. At trial on November 17,

      2017, Benway testified that he had acted in self-defense, testimony the trial

      court specifically found was not credible. The trial court found that for it to

      accept Benway’s version of events, it would have to believe “some very unlikely

      things that just based on common experience just [do not] happen.” Tr. Vol. I

      p. 38. The trial court found Benway guilty as charged and, on December 12,

      2017, sentenced him to an aggregate sentence of 361 days of incarceration with

      301 suspended.


                                 Discussion and Decision
[4]   Benway 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
              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.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-66 | July 20, 2018   Page 3 of 5
               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).


[5]   In general, “[s]elf-defense […] is unavailable to a defendant who is the initial

      aggressor[.]”1 Id. at 700. The evidence most favorable to the trial court’s

      judgment indicates that Benway was the initial aggressor, with both Singleton

      and Rosanski testifying that he was. Singleton testified that Benway first

      pushed her and then started hitting her when she asked him to leave. Rosanski

      testified that Benway let himself into the house, “started tripping out on

      [Singleton,]” and “ended up getting on top of her and […] hitting her.” Tr. Vol.

      II pp. 16, 17. Benway points to his testimony that Singleton attempted to slap

      him first and that, when he tried to defend himself, he was attacked by

      Rosanski and Singleton’s father’s girlfriend. The trial court, however,




      1
        Indiana Code section 35-41-3-2(g) provides, in part, 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.” Benway 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-66 | July 20, 2018                          Page 4 of 5
      specifically found Benway’s testimony to be incredible, which was its

      prerogative. Benway’s argument is nothing more than an invitation to reweigh

      the evidence, which we will not do.


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


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




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-66 | July 20, 2018   Page 5 of 5
