 Pursuant to Ind. Appellate Rule 65(D),                                     Jul 18 2013, 6:32 am
 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:

ERIC K. KOSELKE                                      GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     GEORGE P. SHERMAN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES F. NOEL,                                       )
                                                     )
       Appellant-Defendant,                          )
                                                     )
           vs.                                       )      No. 49A02-1212-CR-1005
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )

                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Robert Altice, Judge
                        The Honorable Patricia Gifford, Senior Judge
                             Cause No. 49G02-1203-FA-16900



                                           July 18, 2013

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
                                                      James Noel (“Noel”) appeals his conviction in Marion Superior Court for Class A

felony attempted murder. Noel claims that the State failed to present sufficient evidence

to rebut his claim of self-defense. We disagree and affirm.

                                                                                                                                                                                                                                   Facts and Procedural History

                                                      Patricia Johnson (“Patricia”) and her daughter, Jackie Bundy (“Jackie”) lived with

Jackie’s three children on Arsenal Avenue in Indianapolis. Their friends often stopped

by, including Jackie’s former fiancé, Paul Parks (“Parks”), and Noel. Both Noel and

Parks were close friends with Jackie, having each had a romantic relationship with her in

the past. Parks was also close with Jackie’s family. During the course of Noel and

Parks’s mutual friendships with Jackie, Parks obtained $150 worth of Vicodin from Noel,

but failed to pay his debt to Noel for two years.

                                                      Eventually, Noel became angry that Parks had not paid him. Noel began to

threaten Parks, indicating that he would “beat [Parks’s] ass” and that he was “going to

get” Parks. Tr. pp. 42, 127. Additionally, Noel spoke with Parks on the phone a number

of times, and tended to be aggressive and derogatory, saying, “Bitch, do you got my

money?” and “You got my money? I want my money. I’ll show you how we do it in

Memphis.”1 Tr. pp. 41-42. In late 2011, when Patricia became aware of Noel’s threats

to Parks, she informed Noel that he was no longer welcome at her home. Noel knew that

Parks continued his close friendship with Patricia’s family, and despite Patricia’s

admonishment to stay away, Noel asked Patricia’s neighbor, George Gates (“Gates”) to

inform him if he saw Parks’s vehicle in the area.

	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
1
         Noel is originally from Memphis, Tennessee. Tr. p. 243.
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                                                      On March 11, 2012, Parks and his friend, Jeremy Green (“Green”), visited

Patricia’s home. After recognizing Parks’s SUV, Gates called Noel to inform him that

Parks was at Patricia’s home. Noel, who was at his own home watching a movie with

Jackie and Torrance Williams (“Williams”), left with them to find Parks. Parks had been

at Patricia’s home for around an hour and a half when Noel, Jackie, and Williams arrived.

Noel went to the door and knocked. Upon hearing that Noel was there, Parks and Green

prepared to leave the home, and saw Noel upon exiting. The men all went to the public

sidewalk, where an altercation between Parks and Noel ensued.2

                                                      Seeing Noel with his hand behind his back, and not knowing whether Noel was

armed, Parks drew a box knife from his pocket and held it at his side. Noel said

something to the effect of, “Gotcha, bitch,” and told Parks, “I’m going to cut your

f***ing head off.” Tr. pp. 53, 158. Noel stepped in front of Parks and drew a hatchet

from his back pocket. Noel then struck Parks with the hatchet twice, claiming that he

believed that Parks was trying to “gut” him with the box knife. Tr. p. 262. Although

Parks attempted to block Noel’s blows with his arm, he was struck twice in the back of

the head and neck with the hatchet. Parks began staggering and was bleeding profusely

when Noel pulled back his arm to strike again. Patricia yelled for Noel to stop, and

Green stepped in to attempt to gain control of the hatchet. All three men fell to the

ground before Green was able to wrest the hatchet from Noel’s grip and throw it into the

front yard of the home.



	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
2
  Parks was forty-four years old, five feet, four inches tall and between 125 and 140 pounds at the time of
the altercation; Noel was sixty-one years old, six feet, one inch tall, and between 180 and 190 pounds.
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                                                      Meanwhile, Patricia and an anonymous caller each notified police of the ensuing

struggle. As police arrived, Noel fled, and Parks was then taken by ambulance to seek

medical care. In addition to the large and deep lacerations to the back of his head and

neck from the hatchet, Parks suffered a variety of other bruises and contusions. The

following day, Noel contacted Parks by telephone to ask Parks if he had Noel’s watch,

which he had lost during the altercation. Noel also told Parks that he had tried to chop

Parks’s head off.

                                                      On March 13, 2012, Noel was arrested and charged with one count of Class A

felony attempted murder. A jury trial was held on September 4 and 5, 2012, which

concluded in a hung jury and a mistrial.3 On November 19, 2012, Noel waived his right

to trial by jury and was tried again, this time in a bench trial, on November 19 and 20,

2012, and the court found Noel guilty as charged.4 At each trial, Noel raised a claim of

self-defense. Following his conviction, Noel was sentenced on November 28, 2012 to

twenty-five years executed.5 Noel now appeals.

                                                                                                                                                                                                                                   Discussion and Decision

                                                      Under Indiana Code section 35-41-5-1, an attempt to commit murder is classified

as a Class A felony, and a person is said to have “attempt[ed] to commit a crime when,

acting with the culpability required for commission of the crime, he engage[d] in conduct

that constitutes a substantial step toward commission of the crime.” “A person who



	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
3
         Judge Robert Altice conducted the initial jury trial.
4
         Senior Judge Patricia Gifford conducted the bench trial.
5
         Judge Altice resumed control of the case for sentencing.	  
	                                                                                                                                                                                                                                           4
knowingly or intentionally kills another human being” commits murder. Ind. Code § 35-

42-1-1.6 However, under Indiana Code section 35-41-3-2(c),

                                                      A person is justified in using reasonable force against any other person to
                                                      protect the 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 the force is necessary to prevent
                                                      serious bodily injury to the person . . . No person in this state shall be
                                                      placed in legal jeopardy . . . for protecting the person . . . by reasonable
                                                      means necessary.

To succeed on his claim of self-defense, Noel was required to demonstrate that: (1) he

was in a place where he had a right to be; (2) he acted without fault; and (3) he had a

reasonable fear of death or serious bodily harm. Hood v. State, 877 N.E.2d 492, 497

(Ind. Ct. App. 2007), trans. denied (citing Wallace v. State, 725 N.E.2d 837, 840 (Ind.

2000)).

                                                      The State must then disprove at least one of those elements beyond a reasonable

doubt in order to rebut the defendant’s claim of self-defense. Id. (citing Miller v. State,

720 N.E.2d 696, 700 (Ind. 1999)). In order to disprove the claim, the State may either

rebut the defense directly, by presenting affirmative evidence that the defendant did not

act in self-defense, or, it may rely on the sufficiency of its evidence in chief. Id. The

fact-finder determines whether the State has met its burden. Id.

                                                      Noel contends that the State’s evidence was insufficient to rebut his claim of self-

defense. We review an appeal for sufficiency of the evidence to rebut a claim of self-
	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  	  
6
   In addition, our supreme court has held that a jury instruction purporting to set out the elements of
attempted murder must inform the jury that the State has prove beyond a reasonable doubt that the
defendant, acting with the specific intent to kill the victim, engaged in conduct which was a substantial
step toward such killing. Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991).
	                                                                                                                                                                                                                                 5
defense in the same manner as we review a typical appeal for the sufficiency of the

evidence. Hood, 877 N.E.2d at 497 (citing Wallace, 725 N.E.2d at 840). That is, we

neither reweigh the evidence, nor assess the credibility of witnesses. Id. If sufficient

evidence of probative value exists to support the conclusion of the trier of fact, we will

not disturb the trial court’s judgment. Id.

       Here, the State presented sufficient evidence to rebut Noel’s claim of self-defense.

With respect to whether Noel was in a place where he had a right to be, it is clear that

Noel was not, at least during the beginning of the altercation. Although the injuries and

physical altercation took place on a public sidewalk, Noel began the confrontation by

arriving at Patricia’s home and knocking on the front door, looking for Parks, despite

being told previously that he was not welcome there. While he did, in fact, retreat to the

public sidewalk before engaging with Parks physically, his initial arrival at Patricia’s

home, and his decision to confront Parks there provides sufficient evidence to rebut his

claim that he was in a place where he had a right to be.

       In addition, Noel does not dispute that he delivered the first blow in the altercation

with his hatchet. This was confirmed by the testimony of at least one eyewitness, as well.

Noel also does not dispute that he asked Gates to inform him if Parks was ever at

Patricia’s home, and he readily admits that he was motivated to go to Patricia’s home, in

part, to confront Parks about the ongoing debt. Thus, the record demonstrates that Noel

left his home armed and prepared for an altercation with Parks, and that Noel was the

primary aggressor. This is sufficient to rebut Noel’s claim that he acted without fault.




	                                            6
       Finally, there was ample evidence to support a finding that Noel’s professed fear

of bodily injury or death was not reasonable or did not exist. Although Noel testified that

Parks came at him with the box knife in an attempt to injure him, other evidence was

introduced by multiple witnesses to indicate that Parks’s knife was held down to his side,

nearly unseen, and certainly not drawn initially in aggression toward Noel. Noel suffered

no injury and presented no other evidence to support his claim that Parks attacked him.

Both Noel’s considerable size advantage over Parks and his choice of a more dangerous

weapon, a hatchet, compared to Parks’s small, box knife also supports a conclusion that

Noel’s claimed fear was not reasonable, if indeed he was fearful at all. Under all of these

facts and circumstances, a reasonable trier of fact, in this case the presiding judge, could

find that Noel’s claim to have reasonably feared was sufficiently rebutted by the State.

       Our standard of review prohibits us from reweighing the evidence or assessing the

credibility of witnesses. Hood, 877 N.E.2d at 497. Here, there was sufficient evidence of

probative value to rebut not one, but all three of the elements of Noel’s self-defense

claim. We therefore affirm the trial court’s judgment.

       Affirmed.

BAKER, J., and MAY., J. concur.




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