Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
before any court except for the
                                                             FILED
                                                           Dec 06 2012, 8:54 am
purpose of establishing the defense of
res judicata, collateral estoppel, or the                         CLERK
                                                                of the supreme court,
law of the case.                                                court of appeals and
                                                                       tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

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

                                                JODI KATHRYN STEIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

TONI COX,                                       )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )       No. 49A02-1205-CR-367
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                        The Honorable Dan Moore, Judge Pro Tem
                           Cause No. 49F07-1201-CM-005140




                                     December 6, 2012



               MEMORANDUM DECISION - NOT FOR PUBLICATION



ROBB, Chief Judge
                                Case Summary and Issue

       Following a bench trial, Toni Cox appeals her conviction of disorderly conduct, a

lesser-included offense to the charged offense of Class A misdemeanor battery. On

appeal, Cox raises one issue, which we restate as whether sufficient evidence supports

her disorderly conduct conviction when the trial court based her acquittal of battery on

self-defense. Concluding that the trial court followed the applicable law and there is

sufficient evidence that Cox lost her claim to self-defense through her use of

unreasonable force and failure to withdraw from the fight, we affirm.

                              Facts and Procedural History

      Around 2:30 a.m. on January 5, 2012, Cox pulled into Latisha Tozier’s driveway

with passengers Dustin Stonehouse and Amanda Kelso. Stonehouse, an on-again, off-

again boyfriend of Tozier’s who was intoxicated that night, wanted to see if another man

was at Tozier’s house. Stonehouse left Cox’s vehicle and knocked on the door; Tozier

permitted him to look around and then told Stonehouse that he needed to leave. Tozier

followed Stonehouse out the back door. When Tozier saw Cox, Tozier, upset, yelled at

both to leave. Cox backed up her vehicle but once she reached the end of Tozier’s

driveway drove forward toward Tozier. Then, either Cox got out of her vehicle on her

own to fight Tozier, or Tozier pulled Cox out of the vehicle by her hair. The two fought,

pulling each other’s hair and hitting each other. Stonehouse ended the fight when he

tackled Tozier to the ground, causing her to strike her head. As Tozier lay on the ground

on her back, Cox kicked her in the face and ribs. Cox and Stonehouse got back in Cox’s

vehicle and left. Responding to a dispatch call, Indianapolis Metropolitan Police Officer

Doug Himmel observed that Tozier had dried blood around her mouth and an injury
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under one eye. Tozier’s fourteen-year-old son witnessed the fight while standing at the

front door.

       The State charged Cox with Class A misdemeanor battery and Class A

misdemeanor criminal recklessness. The trial court sua sponte found Cox guilty of Class

B misdemeanor disorderly conduct as a lesser-included offense to battery and not guilty

of criminal recklessness:

       I don’t think the State has proved a battery beyond a reasonable doubt in as
       much as self defense might . . . might, in fact, be a defense. I don’t think
       they’ve disproved self defense beyond a reasonable doubt. . . . I think what
       the State did prove is a lesser included offense of disorderly conduct.
       Fighting, ma’am, is a crime. It’s a class B misdemeanor. I think that in this
       particular case, take me up if you want to, that the disorderly [conduct] of
       engaging in fighting was factually included in your charge of battery. Um, I
       think the State’s proved, despite your claim of self defense, uh, a crime of
       disorderly conduct, and here’s why: I think that whether you were pulled
       out of the car or got out of the car, whether it was self defense or not, I
       think at some point you kicked some ass. That’s what I think. I think there
       was a time when you were defending yourself and there was a time when
       you’re giving a little more. I think at that point, um, it was disorderly
       conduct. So, I am going to find that the State failed to prove its case of
       battery as a class A misdemeanor, failed to prove its case of criminal
       recklessness as a class A misdemeanor, but that you are guilty of the lesser
       included offense ... lesser included factually, of disorderly conduct.

Transcript at 60-61 (emphases added). Cox now appeals.

                                 Discussion and Decision

                                  I. Standard of Review

       Our standard of review for sufficiency claims is well-settled: if the probative

evidence and reasonable inferences drawn from the evidence could have allowed a

reasonable factfinder to find the elements of the crime proven beyond a reasonable doubt,

we will affirm. Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind. 2001). We neither reweigh

the evidence nor judge the credibility of the witnesses, and we respect the factfinder’s
                                            3
exclusive province to weigh conflicting evidence. 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. Wilson v. State, 770 N.E.2d 799, 801

(Ind. 2002).

                              II. Sufficiency of the Evidence

       Cox briefly argues that the trial court abused its discretion in rejecting her self-

defense claim under the mistaken belief that self-defense was not applicable to the charge

of disorderly conduct. However, Cox fails to demonstrate that the trial court meant

anything other than that her claim of self-defense did not apply to the facts of the case.

We initially observe that we presume the trial judge is aware of and knows the law.

Dumas v. State, 803 N.E.2d 1113, 1121 (Ind. 2004). And there is a strong presumption

on appeal that a trial court has acted correctly and has followed the applicable law.

Moran v. State, 622 N.E.2d 157, 159 (Ind. 1993). This presumption can be overcome

when a judge’s remarks demonstrate error “with clarity and certainty sufficient to

overcome the presumption.” Id. at 159-60. Based upon the record, we conclude the trial

court’s statements support the conclusion that it merely determined that the facts did not

support a claim of self-defense. We cannot say that Cox has overcome the presumption

that the trial court acted correctly and followed the applicable law.

       To the extent Cox merely asserts that the State failed to rebut her claim of self-

defense with respect to disorderly conduct, sufficient evidence supports her conviction.

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

Code § 35-41-3-2; Wilson, 770 N.E.2d at 800. In order to prevail on such a claim, the

defendant must show that she: (1) was in a place where she had a right to be; (2) did not
                                              4
provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear

of death or great bodily harm. Wilson, 770 N.E.2d at 800. 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.

       Cox lost her claim to self-defense through her use of unreasonable force and her

failure to withdraw from the mutual fight. The trial court found that, even if Cox was

initially defending herself from Tozier, she used more force than was necessary. After

closing arguments, the trial court told Cox:

       I think that whether you were pulled out of the car or got out of the car,
       whether it was self defense or not, I think at some point you kicked some
       ass. . . . I think there was a time when you were defending yourself and
       there was a time when you’re giving a little more. I think at that point, um,
       it was disorderly conduct.

Tr. at 61. The amount of force that an individual may use to protect herself must be

proportionate to the urgency of the situation. 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. The evidence in

the record showed that after Cox and Tozier fought and Stonehouse knocked Tozier to

the ground, Cox kicked at Tozier’s face and ribs as Tozier lay on her back. Tozier had

been overpowered, yet Cox continued to strike at her. At that point, Cox’s claim of self-

defense was extinguished.

       Moreover, at trial, Cox admitted to fighting with Tozier. Regardless of whether

Tozier initiated the fight, Cox failed to withdraw and communicate her withdrawal to

Tozier. “[A] mutual combatant, whether or not the initial aggressor, must declare an

armistice before he or she may claim self-defense.” Wilson, 770 N.E.2d at 801 (citing
                                               5
Ind. Code § 35-41-3-2(e)(3) (2002)). Cox never withdrew; in fact, when Tozier lay on

her back, Cox continued the fight by kicking at Tozier’s face and ribs. At that point,

Cox’s claim of self-defense was extinguished.

                                      Conclusion

      We conclude that the trial court followed the applicable law and sufficient

evidence supports Cox’s conviction of disorderly conduct. We therefore affirm.

      Affirmed.

MAY, J., and PYLE, J., concur.




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