Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                  Jun 26 2014, 8:51 am
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

                                                 JAMES B. MARTIN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DESMOND McGEE,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A05-1311-CR-555
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Linda E. Brown, Judge
                           Cause No. 49F10-1304-CM-21382



                                       June 26, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
          In this case, a verbal altercation between two co-workers quickly turned violent.

Appellant-defendant Desmond McGee punched the victim, Kristopher Krafcsik, in the

jaw. McGee claimed that he acted in self-defense because Krafcsik’s “tone and words”

made him feel as though his physical safety was in danger. Appellant’s Br. p. 8.

          Although McGee was initially charged with Battery, 1 a class A misdemeanor, for

inflicting bodily injury upon Krafcsik, the trial court found him guilty of the lesser-

included offense of class B misdemeanor battery.2 We reject McGee’s claim of self-

defense, concluding that the evidence was sufficient to support McGee’s conviction and

affirm the judgment of the trial court.

                                           FACTS

          Krafcsik and McGee worked together at Blossom Chevrolet in Indianapolis. On

February 6, 2013, Krafcsik was walking through the door to the business. At some point,

McGee approached Krafcsik and accused him of leaving some paperwork in McGee’s

office. Krafcsik replied that he did not know what McGee was talking about and denied

leaving any documents in his office. After McGee made these accusations two more

times, McGee told Krafcsik to clean his office. In response, Krafcsik, who testified that

he was standing about thirty feet away, told McGee to “go f**k [himself.]” Tr. p. 8.

          Krafcsik claimed that McGee “closed that thirty feet really quick,” approached

Krafcsik, and “socked” [him] in the jaw.” Id. McGee’s punch initially shocked Krafcsik,


1
    Ind. Code § 35-42-2-1(a)(1)(A).
2
    I.C. § 35-42-2-1(a).
                                              2
but it subsequently caused him pain. Krafcsik raised his hands to his face to make sure

that McGee was not going to hit him again. McGee then got “up into” Krafcsik’s chest

and threatened him, while three other individuals were attempting to restrain him. Id. at

9.

       Krafcsik stepped away after McGee punched him. When Krafcsik turned from

McGee and began walking toward the sales office, McGee was “right in [Krafcsik’s] ear”

behind him. Id. at 10. Krafcsik then asked if McGee was going to “sucker punch” him

again. Id. Krafcsik interrupted a manager’s meeting and explained what had occurred.

       McGee admitted that he “pushed” Krafcsik, but denied pushing him “in the face.”

Tr. p. 45. McGee claimed that he shoved Krafcsik to “get some separation between

[them],” and thought that Krafcsik “was going to try to do something” because Krafcsik

had raised his voice. Id. at 42, 45.

       The State charged McGee with class A misdemeanor battery. However, following

a bench trial on October 22, 2013, McGee was found guilty of battery, a class B

misdemeanor, as a lesser-included offense. McGee was subsequently sentenced, and he

now appeals.

                             DISCUSSION AND DECISION

       In addressing McGee’s challenge to the sufficiency of the evidence, we do not

reweigh the evidence or judge the credibility of the witnesses, and respect “the jury’s

exclusive province to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124,

126-27 (Ind. 2005). We will affirm the defendant’s conviction if the probative evidence

                                           3
and reasonable inferences drawn from the evidence could have allowed a reasonable trier

of fact to find the defendant guilty beyond a reasonable doubt. Id. Under Indiana Code

section 35-42-2-1(a), a person who “knowingly or intentionally touches another person in

a rude, insolent, or angry manner commits battery, a class B misdemeanor.”

      Here, Krafcsik testified that McGee “closed that 30 feet really quick” between the

two of them shortly after the incident began. Tr. p. 8. McGee approached Krafcsik and

punched him in the jaw. Id. And even McGee’s self-serving account of the incident,

claiming that he pushed Krafcsik—but not in the face—supports his conviction for

battery as a class B misdemeanor. In short, McGee’s claim is inviting us to make a

credibility determination and reweigh the evidence, which we will not do. McHenry, 820

N.E.2d at 126-2.

      Additionally, we note that to prevail on a claim of self-defense, the defendant must

show that he is justified in using reasonable force against another person to protect

himself from what that person reasonably believes to be the imminent use of unlawful

force. I.C. § 35-41-3-2(c). For McGee to succeed on his self-defense claim, he was

required to demonstrate that he was in a place where he had a right to be, he did not

provoke, instigate, or participate willingly in the violence, and had a reasonable fear of

death or great bodily harm. Boyer v. State, 883 N.E.2d 158, 162 (Ind. Ct. App. 2008).

Also, the amount of force used to protect oneself must be proportionate to the urgency of

the situation. Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995).



                                            4
      While McGee claims that he was acting in self-defense when he “pushed”

Krafcsik, we review the question of whether the State negated the defendant’s claim of

self-defense beyond a reasonable doubt. Boyer, 883 N.E.2d at 162. We look solely to

the evidence most favorable to the verdict together with all reasonable inferences to be

drawn therefrom. Id. We will reverse a conviction where the defendant claims self-

defense only if no reasonable person can say that the State disproved self-defense beyond

a reasonable doubt. Id.

      Here, the State’s evidence established that McGee instigated the confrontation

with Krafcsik and punched Krafcsik in the jaw. Tr. p. 8. The trial court, as the finder of

fact, could reasonably find that there was no evidence of a physical attack from

Krafcsik—imminent or otherwise—that McGee would have been justified to repel. That

said, even if the trial court had chosen to credit McGee’s account that he “pushed”

Krafcsik to “get some separation,” the trial court could reasonably conclude that

Krafcsik’s alleged act of raising his voice to McGee did not justify McGee’s use of

physical force. Thus, we reject McGee’s claim of self-defense and affirm his conviction.

      The judgment of the trial court is affirmed.

BARNES, J., and CRONE, J., concur.




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