MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be                                     Jan 31 2020, 9:19 am
regarded as precedent or cited before any
                                                                               CLERK
court except for the purpose of establishing                               Indiana Supreme Court
                                                                              Court of Appeals
the defense of res judicata, collateral                                         and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark Small                                               Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General

                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Alexzander F. Dutton,                                    January 31, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-799
        v.                                               Appeal from the Clinton Superior
                                                         Court
State of Indiana,                                        The Honorable Justin H. Hunter,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         12D01-1710-F3-1094



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020                    Page 1 of 12
                                                Case Summary
[1]   Alexzander F. Dutton appeals his conviction for level 3 felony aggravated

      battery and his two convictions for level 5 felony battery. He argues that the

      State failed to present sufficient evidence to rebut his self-defense claim, that the

      prosecutor committed misconduct resulting in fundamental error, and that his

      convictions violate constitutional protections against double jeopardy. We

      conclude that the State presented sufficient evidence to rebut Dutton’s self-

      defense claim and that any error committed by the prosecutor was not

      fundamental. However, we conclude, and the State acknowledges, that remand

      to vacate Dutton’s level 5 felony convictions is required to avoid double

      jeopardy concerns. Accordingly, we affirm Dutton’s conviction for level 3

      felony aggravated battery and remand with instructions to the trial court to

      vacate his level 5 felony battery convictions.


                                   Facts and Procedural History 1
[2]   The facts most favorable to the verdicts show that on the night of September 30-

      October 1, 2017, Dutton and his friend Ricky Deck went to a bar in Mulberry.

      Carl Boldenow was also at the bar. Both Dutton and Boldenow consumed

      alcoholic beverages. At some point, Boldenow, his friend Janelle Stingley, and

      Stingley’s cousin Jenny Brettnacher went outside to smoke. Upon their return,

      they encountered Dutton and Deck standing outside in front of the bar.



      1
        Many of the citations to the transcript in Dutton’s appellant’s brief are incorrect, which hindered our
      review.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020                    Page 2 of 12
      Boldenow, Dutton, and Deck engaged in casual conversation, which began as

      joking and then became personal. Both Dutton and Boldenow became angry,

      but it did not appear that they were about to engage in a physical fight. Tr. Vol.

      1 at 172. Dutton and Deck went back inside the bar. Deck told a bartender

      that there might be a problem but did not specify what that problem might be.

      Dutton approached the bartender and told her that there was no problem and

      everything was okay. Id. at 160.


[3]   About twenty or thirty minutes later, Dutton and Deck decided to leave the bar

      to get Dutton’s girlfriend Ashley Oliver and because Dutton wanted to work on

      his truck. Tr. Vol. 2 at 119. They exited the bar and walked near a bonfire

      where Boldenow, Stingley, and Brettnacher were standing. Dutton and

      Boldenow began “exchanging words” and threatening to kick each other’s butt.

      Tr. Vol. 1 at 194. Dutton and Deck turned back toward Boldenow, and

      Boldenow started walking toward them. Stingley “jumped in to try to stop the

      whole situation.” Id. at 195. Stingley grabbed the back of Boldenow and told

      him to stop and that the arguing was unnecessary. Id. at 194. Stingley yelled for

      Brettnacher, who came to stand in front of Boldenow. Stingley released

      Boldenow, walked up to Dutton, and said, “Just go home. Like this is stupid.

      You guys are fighting for nothing.” Id. at 195. Dutton and Deck walked away.

      Boldenow, Stingley, and Brettnacher went back into the bar, and then Stingley

      and Brettnacher went home.


[4]   Dutton and Deck returned to the bar with Oliver about thirty minutes to an

      hour after they left. Tr. Vol. 2 at 184. Dutton had been working on his truck

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020   Page 3 of 12
      that day and had some of the tools he had used in his pockets. Id. at 171, 184.

      Prior to and at the time of Dutton’s return, Toby Hamilton and Justin

      Ecenbarger were standing outside the bar door. Hamilton and Ecenbarger

      knew Boldenow, but they did not know Dutton. While Hamilton and

      Ecenbarger were standing there, Ecenbarger saw Boldenow walk from

      Boldenow’s truck to the bar’s entrance. As Boldenow was about to go in the

      door to the bar, a group of people outside the bar, including Dutton, started to

      have “words” with Boldenow. Tr. Vol. 1 at 228. Boldenow and Dutton were

      “calling each other a pussy.” Id. at 229. Hamilton also heard Boldenow

      “getting into it” with another person, whom Hamilton later learned was

      Dutton. Id. at 246. Hamilton noticed that Dutton was near the retaining wall

      by the bar door, and then Dutton “backed off into the parking lot a little bit.”

      Id.


[5]   Hamilton and Ecenbarger were just going to depart, when Dutton said

      something apparently offensive to Boldenow. Id. at 247. Ecenbarger said to

      Boldenow, “[L]et’s just turn around and go in the bar.” Id. at 230. As he said

      this, Ecenbarger had his hands on Boldenow, but Boldenow was not making

      eye contact with him; Boldenow was looking over Ecenbarger’s shoulder, and

      Ecenbarger could “see in his eye that they [i.e., Boldenow and Dutton] were

      gonna have a scuffle.” Id. Hamilton was standing between Dutton, who was in

      front of him, and Ecenbarger and Boldenow, who were somewhere behind him.

      Hamilton observed Dutton trying to get something out of his pants pocket and

      said, “[H]ey what do you have in your pocket there?” Id. at 231, 247.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020   Page 4 of 12
      Hamilton saw Dutton pull something out of his pants pocket that had a handle

      with metal, which was later identified as a ball-peen hammer. Id. at 248.

      When Ecenbarger heard Hamilton say, “[H]ey what do you have in your

      pocket there,” Ecenbarger turned away from Boldenow. Id. at 231. Hamilton

      noticed Boldenow come around his right and move toward Dutton. Hamilton

      thought that Boldenow “was trying to get his hands on [Dutton] for something

      … just trying to grab him.” Id. at 248. When Ecenbarger realized that Dutton

      had something in his right hand, Ecenbarger thought things were getting “a

      little out of hand” and decided to go back into the bar. Id. at 231. Hamilton

      saw Dutton hit Boldenow on the head with the hammer. Id. at 249. As

      Ecenbarger was walking in the door to the bar, he heard “like a melon smack”

      and Hamilton say, “[W]hat did you do that for?” Id. at 232.


[6]   Hamilton observed Dutton, Deck, and Oliver walk away. Boldenow was lying

      on the ground bleeding, and “it was bad.” Id. at 249. As Dutton was walking

      away from the bar, Bryson Hamilton, who was taking out the trash, heard

      Dutton say, “[T]hey’re gonna take me to jail[,]” or, “I’m going to jail.” Id. at

      184. Police later discovered Dutton’s hammer in a dumpster outside the bar.


[7]   Boldenow was rushed to the hospital, where he underwent an emergency

      craniotomy for his injury and was put on a ventilator. He remained

      hospitalized for a week. As a result of the injury inflicted by Dutton, Boldenow

      suffers permanent hearing loss, permanent speech problems, memory loss, and

      severe headaches. Boldenow remembers very little about the night he was

      injured.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020   Page 5 of 12
[8]    The State charged Dutton with level 3 felony aggravated battery causing serious

       permanent disfigurement or protracted loss or impairment of the function of a

       bodily member or organ, level 5 felony battery resulting in serious bodily injury,

       and level 5 felony battery by means of a deadly weapon. A jury trial was held.

       As part of the State’s case-in-chief, Stingley, Ecenbarger, Hamilton, and

       Boldenow, among others, testified. At the close of the State’s evidence, Dutton

       moved for judgment on the evidence, arguing in part that the State’s evidence

       showed that he had acted in self-defense. The trial court denied the motion,

       and Dutton proceeded to present his case. He testified, and his counsel argued

       to the jury that Dutton acted in self-defense. The jury found Dutton guilty as

       charged.


[9]    The trial court entered judgment of conviction on all three counts. For his level

       3 felony aggravated battery conviction, the trial court sentenced Dutton to eight

       years, with five years executed and three years on probation. The trial court

       indicated that it would “merge” the two level 5 felony convictions with the level

       3 felony conviction “for purposes of sentencing” to avoid a double jeopardy

       violation. Tr. Vol. 3 at 56. This appeal ensued.


                                      Discussion and Decision

             Section 1 – The evidence is sufficient to rebut Dutton’s
                               self-defense claim.
[10]   Dutton asserts that the State failed to present sufficient evidence to rebut his

       self-defense claim. The standard of review for a challenge to the sufficiency of


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020   Page 6 of 12
       evidence to rebut a self-defense claim is the same as the standard for any

       sufficiency claim. Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We neither

       reweigh the evidence nor judge the credibility of witnesses. Id. We will affirm

       the conviction unless, considering only the evidence and reasonable inferences

       favorable to the judgment, no reasonable factfinder could have found that the

       State disproved self-defense beyond a reasonable doubt. Carroll v. State, 744

       N.E.2d 432, 433 (Ind. 2001). 2


[11]   Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,

       984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “A person is justified in

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

       person from what the person reasonably believes to be the imminent use of

       unlawful force.” Ind. Code § 35-41-3-2(c). Further, a person “is justified in

       using deadly force[, and] does not have a duty to retreat[,] if the person

       reasonably believes that that force is necessary to prevent serious bodily injury

       to the person or a third person or the commission of a forcible felony.” Id.

       “‘Deadly force’ means force that creates a substantial risk of serious bodily

       injury.” Ind. Code § 35-31.5-2-85. Here, there appears to be no dispute that

       Dutton’s self-defense claim involved force creating a substantial risk of serious

       bodily injury, and therefore he was required to show that he was justified in




       2
         Dutton incorrectly asserts that an appellate court will consider any uncontested evidence favorable to the
       defendant, citing Hathaway v. State, 906 N.E.2d 941, 944 (Ind. Ct. App. 2009), trans. denied. Appellant’s Br. at
       18. The standard of review from Hathaway on which Dutton relies applies to a trial court’s ruling on the
       admissibility of the evidence. 906 N.E.2d at 944. Here, our review is for the sufficiency of the evidence, and
       therefore the standard of review in Hathaway is inapplicable.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020                    Page 7 of 12
       using deadly force. To prevail on a claim of self-defense involving deadly force,

       Dutton was required to show 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 injury].” Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011). 3

       “When a claim of self-defense is raised and finds support in the evidence, the

       State bears the burden of negating at least one of the necessary elements.” King

       v. State, 61 N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied (2017). The

       State may meet its burden by rebutting the defense directly, by affirmatively

       showing the defendant did not act in self-defense, or by relying on the

       sufficiency of the case-in chief. Quinn v. State, 126 N.E.3d 924, 927 (Ind. Ct.

       App. 2019).


[12]   Self-defense involves both a subjective and an objective component. Washington

       v. State, 997 N.E.2d 342, 349 (Ind. 2013). A defendant must honestly believe

       that force is necessary to protect himself from serious bodily injury, and that

       belief must be objectively reasonable, i.e., it must be one that a reasonable

       person would have in those circumstances. Id. “A person who provokes,

       instigates, or participates willingly in the violence does not act without fault for

       the purposes of self-defense.” Richardson v. State, 79 N.E.3d 958, 964 (Ind. Ct.

       App. 2017). Also, “[a] claim of self-defense will fail if the person ‘uses more




       3
         While a reasonable fear of death or serious bodily injury is required in a case involving deadly force, “when
       a case does not involve deadly force, a defendant claiming self-defense must only show that he was protecting
       himself from what he ‘reasonably believe[d] to be the imminent use of unlawful force.’” Dixson v. State, 22
       N.E.3d 836, 839 (Ind. Ct. App. 2014) (quoting Ind. Code § 35-41-3-2(c)), trans. denied (2015).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020                   Page 8 of 12
       force than is reasonably necessary under the circumstances.’” Weedman v. State,

       21 N.E.3d 873, 892 (Ind. Ct. App. 2014) (quoting Sudberry v. State, 982 N.E.2d

       475, 481 (Ind. Ct. App. 2013)), trans. denied (2015). “The trier of fact is not

       precluded from finding that a person used unreasonable force simply because

       the victim was the initial aggressor.” McCullough v. State, 985 N.E.2d 1135,

       1138 (Ind. Ct. App. 2013).


[13]   The evidence and the reasonable inferences favorable to the verdicts indicate

       that Dutton and Boldenow had multiple verbal confrontations that evening.

       Dutton chose to return to the bar with Deck and Oliver, and Dutton willingly

       engaged in another verbal argument with Boldenow. During their exchange of

       insults, Dutton reached into his pocket to take out a hammer. Boldenow was

       angry and moved toward Dutton, but there was no indication that Boldenow

       was armed, and Dutton’s friend was present, so Dutton was not outnumbered.

       When Boldenow was close enough to Dutton, Dutton struck Boldenow on the

       head with a ball-peen hammer, causing Boldenow to lose consciousness and

       bleed profusely from a laceration on his head. Boldenow did not strike or

       physically assault Dutton. The jury saw and heard both Dutton and Boldenow.

       The jury was required to consider whether under all the circumstances a

       reasonable person in Dutton’s position would have felt that he was in imminent

       danger of serious bodily injury and whether the use of deadly force was

       reasonable. We conclude that there was sufficient evidence to support a

       conclusion that a reasonable person in these circumstances would not have felt

       that he was in imminent danger of serious bodily injury and that striking


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020   Page 9 of 12
       Boldenow on the head with a ball-peen hammer constituted excessive force

       under the circumstances. Dutton’s argument is merely a request to reweigh the

       evidence, which we must decline. Accordingly, we conclude that there was

       sufficient evidence to rebut Dutton’s self-defense claim.


       Section 2 – The prosecutor’s closing argument did not result in
                            fundamental error.
[14]   In the midst of his sufficiency argument, Dutton contends that the prosecutor

       committed fundamental error during closing argument by inappropriately

       shifting the burden of proof to Dutton. Where, as here, a claim of prosecutorial

       misconduct has been waived by the defendant’s failure to preserve the issue, the

       defendant must establish not only the grounds for prosecutorial misconduct but

       also that the prosecutorial misconduct constituted fundamental error. 4 Ryan v.

       State, 9 N.E.3d 663, 667-68 (Ind. 2014). “Fundamental error is an extremely

       narrow exception to the waiver rule where the defendant faces the heavy

       burden of showing that the alleged errors are so prejudicial to the defendant’s

       rights as to ‘make a fair trial impossible.’” Id. at 668 (quoting Benson v. State,

       762 N.E.2d 748, 756 (Ind. 2002)). A fundamental error is one that “make[s] a

       fair trial impossible or constitute[s] a clearly blatant violation of basic and

       elementary principles of due process presenting an undeniable and substantial

       potential for harm.” Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018) (quoting



       4
         To preserve a claim of prosecutorial misconduct, the defendant must request an admonishment to the jury
       at the time the alleged misconduct occurs, and if further relief is desired, move for a mistrial. Ryan v. State, 9
       N.E.3d 663, 667 (Ind. 2014).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020                      Page 10 of 12
       Knapp v. State, 9 N.E.3d 1274, 1281 (Ind. 2014), cert. denied (2015)) (alterations

       in Durden).


[15]   Dutton takes issue with the following portion of the prosecutor’s closing

       argument:


               And as you’re considering the evidence and deciding whether or
               not I have met my burden for proof beyond a reasonable doubt
               that the accused committed the crimes that he’s accused of in this
               case. Then if there’s any doubt that I have reached my burden
               you give the benefit of that doubt to the defendant. Probably
               guilty. May be guilty. Is not guilty. In the accusation of a crime
               in a court of law. So I’m asking you in your consideration of
               things to be more balance[d]. To be equitable. To be fair to all
               people involved in this matter. Including the victim. Including
               the witnesses. Including the defendant. And I mean that in a
               general sense of this is not an opportunity for you to decide who
               are the angels and who are the demons.


       Tr. Vol. 2 at 229 (emphasis added).


[16]   Dutton claims that asking the jury to be “equitable” in weighing matters

       impermissibly shifted the burden of proof to him. Assuming, without deciding,

       that the prosecutor’s request that the jury be “equitable” was inappropriate, any

       error is certainly not fundamental. Just before making the allegedly improper

       statement, the prosecutor told the jury that the State had the burden of proof

       and that the defendant must get the benefit of any doubt. Then, shortly after

       making the statement, the prosecutor said, “Your review of the evidence is an

       objective review of the evidence whether or not I have met my burden. And as

       to the claim of self[-]defense I have a burden of disproving that by proof beyond

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020   Page 11 of 12
       a reasonable doubt as well.” Id. Considering the allegedly improper statement

       in context, we have no difficulty concluding that any possible error would not

       constitute a clearly blatant violation of basic and elementary principles of due

       process or present an undeniable and substantial potential for harm.


        Section 3 – Remand is appropriate to vacate the level 5 felony
                                convictions.
[17]   Dutton argues, and the State concedes, that all three battery counts were based

       on the same act of battery, namely, Dutton’s act of striking Boldenow on the

       head with the hammer. The trial court entered judgment of conviction on all

       three battery counts, but based on double jeopardy concerns, did not sentence

       Dutton on the level 5 felony convictions. Merging the convictions at sentencing

       is insufficient to cure the double jeopardy violation; the convictions must be

       vacated. Bass v. State, 75 N.E.3d 1100, 1103 (Ind. Ct. App. 2017). Accordingly,

       we remand to the trial court with instructions to vacate Dutton’s level 5 felony

       convictions.


[18]   Affirmed in part and remanded.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-799 | January 31, 2020   Page 12 of 12
