FOR PUBLICATION

ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

SCOTT KING                                        GREGORY F. ZOELLER
Scott King Group                                  Attorney General of Indiana
Merrillville, Indiana
                                                  KARL M. SCHARNBERG
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana
                                                                                  FILED
                                                                                Feb 18 2013, 9:24 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                       CLERK
                                                                                     of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court




MICHAEL R. SUDBERRY,                              )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )       No. 45A03-1206-CR-298
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                         The Honorable Thomas P. Stefaniak, Jr., Judge
                               Cause No. 45G04-1108-FB-76



                                      February 18, 2013


                              OPINION - FOR PUBLICATION


CRONE, Judge
                                       Case Summary

          During a physical altercation, Michael R. Sudberry threw a pan of hot water on his

brother, who sustained second degree burns. At trial, Sudberry raised the defense of self-

defense. Thereafter, the State was allowed to present evidence that Sudberry had previously

threatened his brother. The jury found Sudberry guilty of battery resulting in serious bodily

injury.

          On appeal, Sudberry argues that the trial court abused its discretion by admitting

testimony about his earlier threat because it was too remote in time to be probative of his

intent. The threat was made approximately a year before the battery, but the evidence

reflected that nothing had happened during that time to cause Sudberry to act on his threat.

We conclude that the trial court did not abuse its discretion by admitting the evidence.

Sudberry also argues that the State failed to rebut his claim of self-defense. The evidence

favorable to the verdict supports a conclusion that Sudberry was a mutual combatant and did

not communicate an intent to withdraw from the fight, that he escalated the fight, and that he

used more force than was reasonably necessary. Thus, the evidence was sufficient to rebut

his claim of self-defense, and we affirm his conviction.

                                Facts and Procedural History

          Sudberry and his brother, Kenneth Sudberry, both moved in with their mother, who

has poor health, eyesight, and hearing. On the morning of August 27, 2011, Kenneth sat

down at the kitchen table next to his mother to have breakfast. Sudberry stated that he had

been sitting there, but Kenneth refused to move. Sudberry picked up a glass of water and


                                               2
dumped it on Kenneth. Kenneth got up, filled a glass with water, and threw the water on

Sudberry. The brothers then started pushing each other.

       According to Kenneth, neither of them punched or kicked the other. After they

stopped pushing each other, Sudberry picked up a pencil and stabbed Kenneth in the

abdomen. Kenneth pushed Sudberry toward the bathroom, and Sudberry fell to the floor in

the bathroom. Kenneth initially blocked Sudberry from getting back to the kitchen, but then

let him pass. Kenneth claimed that Sudberry picked up a pot of hot water from the stove and

“then proceeded to stand directly in my face to yell and spit in my face. And he said, [‘P]ush

me again.[’]” Tr. at 78. Kenneth moved Sudberry “out of [his] face with [his] shoulder” and

stepped back. Id. Sudberry then threw the water on him. Kenneth fell to the floor, and

Sudberry hit him with the pot and pressed it against his face. Kenneth managed to get up and

push Sudberry again.

       Sudberry then went to his room, and Kenneth called the police. Officers Marla Guye

and Troy Campbell responded to the scene. Officer Guye attended to Kenneth and observed

that he had a scratch from the pencil and his skin was peeling off where the water had hit

him. Kenneth was taken to a hospital, where he was treated for second-degree burns to the

left side of his face, neck, shoulder, and arm.1


       1
        Kenneth’s medical records related to these injuries were admitted into evidence as State’s Exhibit 29.
Indiana Administrative Rule 9(G)(1)(b)(xi) excludes from public access:

       [a]ll medical, mental health, or tax records unless determined by law or regulation of any
       governmental custodian not to be confidential, released by the subject of such records, or
       declared by a court of competent jurisdiction to be essential to the resolution of litigation as
       declared confidential by Ind. Code §§ 16-39-3-10, 6-4.1-5-10, 6-4.1-12-12, and 6-8.1-7-1.


                                                      3
Pursuant to Indiana Trial Rule 5(G):

        (1) Whole documents that are excluded from public access pursuant to Administrative Rule
        9(G)(1) shall be tendered on light green paper or have a light green coversheet attached to the
        document, marked “Not for Public Access” or “Confidential.”

        (2) When only a portion of a document contains information excluded from public access
        pursuant to Administrative Rule 9(G)(1), said information shall be omitted [or redacted] from
        the filed document, and set forth on a separate accompanying document on light green paper
        conspicuously marked “Not for Public Access” or “Confidential” and clearly designated [or
        identifying] the caption and number of the case and the document and location within the
        document to which the redacted material pertains.

Kenneth’s medical records were not tendered on light green paper, nor was any effort made to redact personal
identifiers such as Kenneth’s date of birth.

        Administrative Rule 9(G)(1.2) provides:

        During court proceedings that are open to the public, when information in case records that is
        excluded from public access pursuant to this rule is admitted into evidence, the information
        shall remain excluded from public access only if a party or a person affected by the release of
        the information, prior to or contemporaneously with its introduction into evidence,
        affirmatively requests that the information remain excluded from public access.

Thus, on the face of the rule, Kenneth’s medical records are no longer excluded because no objection was
made.
          However, in this case, there was a separation of witnesses in effect. Kenneth’s medical records were
not admitted during his testimony; thus, it would appear that he was not only absent from the courtroom when
his medical records were admitted, but he was not allowed to be present. Furthermore, it is unclear whether
Kenneth even knew that the State intended to offer his medical records into evidence. State’s Exhibit 29
contains a document titled “Authorization for Access, Use or Disclosure of Protected Health Information.”
The form advises that the patient has the “right to revoke this authorization at any time.” Id. At the bottom is a
line that reads, “Signature of Patient or Legal Representative,” and a signature purporting to be Kenneth’s
appears above that line. Id. However, there is a second line that reads, “If Signed by Legal Representative,
Relationship to Patient,” and illegible writing appears above that line. Id. Thus, it is unclear whether Kenneth
personally authorized the release. Even assuming that he did sign the release and never revoked his
authorization, there is no indication that he intended to allow the State to submit them into evidence at a public
trial in a completely unredacted format.
          This case is a perfect illustration of how Administrative Rule 9 often creates a Catch-22 for non-
parties. A non-party’s confidential information can become a matter of public record unless an objection is
made, but Administrative Rule 9 does nothing to insure that non-parties are provided a meaningful opportunity
to object. The proponent of the evidence is not required to notify the non-party that confidential information
affecting the non-party is going to be offered into evidence. Nor does the rule make an exception to the
contemporaneous objection requirement when the non-party has been excluded from the court pursuant to a
separation of witnesses order, which is frequently requested by the parties. While we believe that disclosures
of a non-party’s confidential information are most often an oversight, Administrative Rule 9 carries potential
for deliberate abuse. We urge the supreme court to reconsider how Administrative Rule 9 applies to non-
parties.


                                                        4
       Officer Campbell arrested Sudberry, read him his Miranda rights, and took him to the

police department. Officer Campbell noticed that Sudberry had some scratches on his arms

and some redness on his face. Sudberry told Officer Campbell that Kenneth had hit him and

knocked him down twice. He claimed that he then picked up the pot and told Kenneth to

stop hitting him. He stated that Kenneth hit him in the chest, and he threw the hot water at

Kenneth.

       Detective JerVean Gates was assigned to further investigate the case. He spoke to

Sudberry’s mother, but she was unable to say who started the fight. Sudberry gave a

videotaped statement to Detective Gates on August 29, 2011. At that time, Sudberry did not

have any visible injuries, but he claimed that he was sore and had loose teeth. The video

reflects that Sudberry tried to show his loose teeth, but Detective Gates denied being able to

see that his teeth were loose. Sudberry claimed that Kenneth had initiated the fight. He

stated that Kenneth was punching him, and he was unable to punch him back. Sudberry

stated that he felt like he had done everything he could to end the fight and was acting in self-

defense when he threw the hot water on Kenneth. Sudberry said that, after the fight, he went

to his room and changed his shirt, which had been torn, and he called his girlfriend to tell her

that he would probably be going to jail.

       Sudberry was charged with four counts of battery: count I was charged as a class B

felony and alleged that the injury created a substantial risk of death or caused serious

permanent disfigurement; count II was charged as a class C felony and alleged that he caused

serious bodily injury; count III was charged as a class C felony and alleged that the hot water


                                               5
was a deadly weapon; and count IV simply alleged battery as a class A misdemeanor. Prior

to trial, the State filed notice of intent to present evidence that Sudberry had previously

threatened Kenneth. The trial court initially disallowed this evidence.

       Sudberry’s trial was held on April 9 and 10, 2012. Kenneth testified to his version of

the story. Kenneth testified that his treatment for the burns took several months and that he

has lasting effects including a burning sensation, scarring, and stiffness. Sudberry did not

testify, but his self-defense claim was placed at issue through Officer Campbell’s report and

the taped statement to Detective Gates.

       Thereafter, the State was permitted to recall Kenneth and question him about the prior

incident with Sudberry in order to rebut Sudberry’s claim that he acted in self-defense. On

June 29, 2010, Kenneth, Sudberry, and their mother were in their mother’s bedroom having a

discussion “about family matters. Probably something having to do with [Kenneth and

Sudberry] not getting along.” Id. at 293. Sudberry left the room and pushed Kenneth out of

his way as he did so. Kenneth pushed him back. Sudberry then went to his room and got a

knife. He told Kenneth, “[I]f you push[ ] me again, I will kill you.” Id. at 291. Kenneth

testified that there were no other physical altercations between him and Sudberry between

June 29, 2010, and August 27, 2011.

       The jury found Sudberry guilty of counts II and IV, not guilty of count I, and

deadlocked as to count III. The State moved to dismiss count III, and judgment was entered

on count II only.




                                             6
                                  Discussion and Decision

       Sudberry raises two issues: (1) whether the trial court abused its discretion by

admitting evidence of his earlier threat against Kenneth; and (2) whether the State presented

sufficient evidence to prove that he did not act in self-defense.

                                  I. Admission of Evidence

       The trial court is vested with broad discretion in ruling on the admissibility of

evidence. Bryant v. State, 802 N.E.2d 486, 494 (Ind. Ct. App. 2004), trans. denied. “An

evidentiary ruling will be reversed on appeal only for an abuse of that discretion. An abuse

of discretion occurs when the trial court’s ruling is clearly against the logic and effect of the

facts and circumstances.” Id. (citation omitted).

       Sudberry argues that his prior threat against Kenneth was inadmissible pursuant to

Indiana Evidence Rule 404(b), which states:

       Evidence of other crimes, wrongs, or acts is not admissible to prove the
       character of a person in order to show action in conformity therewith. It may,
       however, be admissible for other purposes, such as proof of motive, intent,
       preparation, plan, knowledge, identity, or absence of mistake or accident ….

Evidence that would otherwise be excluded by Evidence Rule 404(b) is admissible if the

court determines that: (1) the evidence is relevant to a matter at issue other than the

defendant’s propensity to commit the charged act; (2) there is sufficient proof that the

defendant in fact committed the act; and (3) the probative value of the evidence is not

substantially outweighed by the danger of unfair prejudice. Camm v. State, 908 N.E.2d 215,

223 (Ind. 2009); see also Ind. Evidence Rule 403 (relevant evidence may be excluded if

probative value is substantially outweighed by danger of unfair prejudice).

                                               7
       Sudberry does not dispute that he placed his intent at issue during the trial by raising

the issue of self-defense. See Fisher v. State, 641 N.E.2d 105, 108 (Ind. Ct. App. 1994)

(“When a defendant alleges in trial a particular contrary intent, whether in opening statement,

by cross-examination of the State’s witnesses, or by presentation of his own case-in-chief, the

State may respond by offering evidence of prior crimes, wrongs, or acts to the extent

genuinely relevant to prove the defendant’s intent at the time of the charged offense.”)

(quoting Wickizer v. State, 626 N.E.2d 795, 799 (Ind. 1993)). Nor does he contend that there

was insufficient evidence that he in fact threatened Kenneth.

       Sudberry’s sole contention is that the threat was too remote in time to be relevant and

probative of his intent at the time of the battery. Sudberry compares his case to Bryant.

Bryant was accused of murdering his stepmother. At trial, Bryant attempted to prove that his

father was the murderer. In support of his theory, Bryant wanted to present evidence that his

father had punched his stepmother approximately eighteen months before her death. The trial

court concluded that the incident was too remote to have any probative value, and we agreed.

Bryant, 802 N.E.2d at 497.

       The State compares Sudberry’s case to Berry v. State, 704 N.E.2d 462 (Ind. 1998).

Berry was accused of killing his grandmother and his parents. A van similar to Berry’s was

seen driving at a high rate of speed away from their home around the time of the murders. A

few days later, he was located in another county, led the police on a high speed chase, and

managed to escape. A few weeks later, he was finally apprehended in Illinois. At trial, the

State presented evidence that “that relations were strained and that the defendant often


                                              8
argued with his parents about his lifestyle, particularly his failure or refusal to find

employment.” Id. at 464. Berry’s brother testified that there had been an argument between

Berry and his parents approximately six months prior to the murders, during which Berry had

said, “I will kill you all and then leave.” Id. Berry was convicted of the murders, and on

appeal, he argued that his brother’s testimony about the threat was inadmissible pursuant to

Evidence Rules 404(b) and 403. Our supreme court held that the threat was not too remote in

time to be admissible, that it “showed the degree to which relations had become strained,”

and that the seriousness of the threat “was a matter of weight for the jury to decide.” Id.

       Sudberry’s threat to Kenneth occurred a little over a year before the battery; thus, it

was not as remote as the incident in Bryant, but less recent than the threat in Berry. Sudberry

threatened to kill Kenneth if he pushed him again. Kenneth testified that there were no

physical altercations between him and Sudberry between the date of the threat and the date of

the battery. Thus, a reasonable jury could conclude that Sudberry did not have a reason to act

on his threat until the date of the battery. Sudberry notes that he did not carry out his threat –

he did not kill Kenneth; however, the evidence was undisputed that Sudberry severely injured

Kenneth and that Kenneth received assistance only because he managed to call 911 himself.

We agree with the State that this case is more comparable to Berry than Bryant; therefore, we

conclude that the trial court did not abuse its discretion by admitting the evidence of

Sudberry’s threat.




                                                9
                                   II. Sufficiency of Evidence

       Sudberry argues that the State did not rebut his claim of self-defense. To prevail on a

claim of self-defense, the defendant must show that he: (1) was in a place where he had the

right to be; (2) did not provoke, instigate, or participate willingly in the violence; and (3) had

a reasonable fear of death or great bodily harm. Wilson v. State, 770 N.E.2d 799, 800 (Ind.

2002). “When a claim of self-defense is raised and finds support in the evidence, the State

has the burden of negating at least one of the necessary elements.” Id.

       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. We neither reweigh the evidence nor judge the credibility of
       witnesses. 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. at 801. A person is not justified in using force if “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 continue unlawful action.” Ind. Code § 35-41-3-2(g)(3). A claim of

self-defense will also fail if the person “uses more force than is reasonably necessary under

the circumstances.” Harmon v. State, 849 N.E.2d 726, 731 (Ind. Ct. App. 2006).

       The evidence favorable to the verdict is that Sudberry and Kenneth spilled some water

on each other and started pushing each other. After a pause in the fight, Sudberry picked up

a pencil and stabbed Kenneth with it. Kenneth pushed Sudberry to the floor, but allowed him

to get up and return to the kitchen. Sudberry then threw a pot of hot water on Kenneth.

Kenneth fell to the floor, and Sudberry hit him with the pot and pressed it against his face.


                                               10
This evidence supports a conclusion that Sudberry was a mutual combatant and did not

withdraw from the fight or communicate an intent to do so; alternatively, it supports a

conclusion that Sudberry escalated the fight and used more force than was reasonably

necessary. Therefore, we conclude that there was sufficient evidence to rebut Sudberry’s

claim of self-defense, and we affirm his conviction.

      Affirmed.

KIRSCH, J., and MATHIAS, J., concur.




                                            11
