Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              Jul 19 2013, 6:33 am
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:

BARBARA J. SIMMONS                                  GREGORY F. ZOELLER
Oldenburg, Indiana                                  Attorney General of Indiana

                                                    JOSEPH Y. HO
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JESUS MONDRAGON,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A04-1212-CR-635
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                       The Honorable Dan Moore, Judge Pro Tempore
                            Cause No. 49G17-1210-CM-74008


                                          July 19, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                  STATEMENT OF THE CASE

          Jesus Mondragon (“Mondragon”) appeals his conviction of domestic battery, a

Class A misdemeanor.1

          We affirm.

                                           ISSUE

Whether the State presented sufficient evidence to rebut Mondragon’s self-defense claim.

                             FACTS AND PROCEDURAL HISTORY

          In October 2012, Mondragon and Sarah Cervantes (“Cervantes”) lived together

with their daughter in an apartment rented by Cervantes.          On October 26, 2013,

Mondragon drove Cervantes’ Jeep as he took Cervantes and their daughter to the

babysitter. Cervantes took their daughter into the babysitter’s home and returned to the

Jeep.      Upon her return, Cervantes saw that Mondragon was smoking a marijuana

cigarette. Cervantes told Mondragon not to smoke marijuana in her vehicle. Mondragon

became upset, continued to smoke the marijuana, and began screaming at Cervantes and

driving at a high rate of speed.

          Mondragon lost control of the Jeep, causing the vehicle to “almost flip[].” (Tr.

11). At some point while he was driving, Mondragon smashed and broke the windshield

on the driver’s side of the jeep. Mondragon screamed at Cervantes, blaming her for the

near-accident. He then stopped the Jeep, exited, and began walking away. Cervantes

moved to the driver’s seat and drove toward Mondragon to pick him up.
1
    Ind. Code § 35-42-2-1.3(a).

                                              2
      Mondragon entered the Jeep and again began yelling at Cervantes. He punched

her three times in the right arm, which “hurt a lot.” (Tr. 14). When she put her hand in

his face to stop him, he punched her in the left eye. He then punched her multiple times

with a closed fist on her head and arm.         When Cervantes moved her hand away,

Mondragon continued to punch her. At some point during the encounter, Mondragon

broke the windshield on the passenger side of the jeep.

      Cervantes drove to her apartment and called the police. Officer Thomas Smith

(“Officer Smith”) of the Indianapolis Metropolitan Police Department responded to the

call and observed that Cervantes was shaking, crying, and had a swollen left eye. Officer

Smith arrested Mondragon.

      Mondragon was charged with the Class A misdemeanors of domestic battery and

battery. After a bench trial, the trial court found him guilty of both charges. The trial

court merged the battery conviction into the domestic battery conviction and sentenced

Mondragon to 365 days with credit for 35 days served with the remainder of the term

suspended to probation.

      Mondragon now appeals.

                            DISCUSSION AND DECISION

      Mondragon contends that the State failed to provide sufficient evidence to rebut

his self-defense claim. In support of his contention, Mondragon emphasizes that his

testimony differed from Cervantes.



                                            3
      Our standard of review for sufficiency claims is well settled.        In reviewing

sufficiency of the evidence claims, this court does not reweigh the evidence or assess the

credibility of witnesses. Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans.

denied. Not only must the fact-finder determine whom to believe but also what portions

of conflicting testimony to believe. In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App. 1999),

trans. denied. We consider only the evidence most favorable to the judgment, together

with all reasonable inferences drawn therefrom. Davis, 791 N.E.2d at 269-70. The

conviction will be affirmed if there is substantial evidence of probative value to support

the conclusion of the trier of fact. Id. at 270. Reversal is appropriate “only when

reasonable persons would not be able to form inferences as to each material element of

the offense.” Alvies v. State, 905 N.E.2d 57, 61 (Ind. Ct. App. 2009).

      A valid claim of self-defense is legal justification for an otherwise criminal act.

Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). “A person is justified in using

reasonable force against any other person to protect the person or a third person frow

what the person reasonably believes to be the imminent use of unlawful force.” I.C. §

35-41-3-2(c). A person is not justified in using force if, among other things, (1) the

person is committing or is escaping after the commission of a crime; (2) the person

provokes unlawful action by another person with intent to cause bodily injury to the other

person; or (3) the person has 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

                                            4
continue unlawful action.” I.C. § 35-41-3-2(g). The amount of force that a person may

use depends on the urgency of the situation, and the self-defense claim will fail if the

person uses “more force than is reasonably necessary under the circumstances.” Harmon

v. State, 849 N.E.2d 726, 730-31 (Ind. Ct. App. 2006). When a person uses more force

than is reasonably necessary under the circumstances, the right of self-defense is

“extinguished.” Id. at 731.

       To sustain a defendant’s conviction, the State must negate at least one of the

elements of the self-defense claim. Wallace, 725 N.E.2d at 840. The State may meet its

burden by rebutting the defense directly, affirmatively showing that the defendant did not

act in self-defense, or simply relying upon the sufficiency of the State’s evidence in chief.

Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007), trans. denied. Whether the

State has met its burden is a question of fact for the factfinder. Id. This Court will affirm

if there is sufficient evidence of probative value to support the conclusion of the trier of

fact. Wallace, 725 N.E.2d at 840. If the 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. Wilson v. State, 770 N.E.2d 799,

800 (Ind. 2002). 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. Id. at 801. 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.

                                               5
       A defendant is guilty of Class A misdemeanor domestic battery if the State proves

that the defendant “knowingly or intentionally touches an individual who . . . is or was

living as if a spouse of another person . . . or has a child in common with the other person

. . . in a rude, insolent, or angry manner that results in bodily injury to the person.” Ind.

Code § 35-42-2-1.3(a). Here, Cervantes testified that Mondragon became angry and

began to cause pain by punching her in the arm, head, and left eye. Officer Smith

testified that he observed Cervantes swollen left eye.          Also, the State presented

photographs of Cervantes’ injuries.

       The evidence presented through Cervantes’ testimony is sufficient to establish that

Mondragon was the first aggressor. See McEwen v. State, 695 N.E.2d 78, 90 (Ind. 1998)

(holding that the defendant’s actions as the initial aggressor negated the defendant’s self-

defense claim). Cervantes’ testimony is also sufficient to establish that Mondragon’s use

of force was occasioned by his anger, not a reasonable fear of bodily harm. Mondragon

admitted that he was angry and that Cervantes’ only act was to defend herself after

Mondragon began hitting her. Mondragon, who the fact-finder reasonably believed was

bigger and stronger than Cervantes, could have easily repelled Cervantes. Instead, he

initially punched her and continued to do so after she tried to defend herself. The State

has clearly demonstrated that Mondragon did not act in self-defense.

       Mondragon asked the trial court to reject Cervantes’ testimony and believe his

testimony that he was defending himself. The trial court credited Cervantes’ testimony

and did not credit Mondragon’s. Mondragon is now asking us to reject Cervantes’

                                             6
testimony and believe that he acted in self-defense. We reject Mondragon’s invitation to

reweigh the evidence, and we affirm the conviction.

      Affirmed.

KIRSCH, J., and VAIDIK, J., concur.




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