MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                   FILED
this Memorandum Decision shall not be                         Aug 16 2017, 9:11 am

regarded as precedent or cited before any                          CLERK
                                                               Indiana Supreme Court
court except for the purpose of establishing                      Court of Appeals
                                                                    and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General

                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Travis Allen,                                            August 16, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1609-CR-1982
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Allan W. Reid,
Appellee-Plaintiff                                       Commissioner
                                                         Trial Court Cause No.
                                                         49G16-1606-CM-24839



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-1982 | August 16, 2017   Page 1 of 6
                                             Case Summary
[1]   Travis D. Allen appeals his conviction for class A misdemeanor domestic

      battery, following a bench trial. Allen claims that the State failed to present

      sufficient evidence to rebut his self-defense claim. We disagree and therefore

      affirm his conviction.


                                 Facts and Procedural History
[2]   On June 27, 2016, Allen and his girlfriend, Rachel Hardy, had a barbeque party

      in the pool area of their apartment complex. The couple were in a romantic

      relationship, had been living together, and had two children together. A verbal

      altercation occurred when Hardy objected to Allen offering food to two females

      who were walking by the barbecue. The situation escalated when the couple

      returned to their apartment, at which time Allen attempted to choke Hardy

      “two or three times.” Tr. Vol. 2 at 10. Hardy called the police. The officer who

      arrived at the scene talked with both Hardy and Allen, but no arrest was made

      at that time.


[3]   After an hour or so, Allen started “talking crazy” and attacked Hardy by

      choking her. Id. at 11. Shortly thereafter, Allen attacked Hardy again. She tried

      to get away from Allen, but he grabbed her arm, causing her to fall to the

      ground and scratch her elbow. Several of the neighbors heard the altercation,

      came over to the apartment, and intervened. The neighbors told Allen, “leave

      her alone, get off her, you can’t be doing that to her and stuff.” Id. at 13. The




      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-1982 | August 16, 2017   Page 2 of 6
      neighbors then attacked Allen, causing a knot on his head and swelling of his

      eye. Hardy called the police a second time.


[4]   Officer Christopher Mills of the Indianapolis Metropolitan Police Department

      responded to the scene. Officer Mills observed that Hardy was upset and

      complained of pain in her elbow. According to Officer Mills, Hardy had “an

      abrasion on her left elbow that appeared fresh.” Id. at 27. Officer Mills also

      observed that Allen’s left eye was swollen. Allen told Officer Mills that he

      received the injury to his eye when he was “jumped by some males in the

      apartment complex.” Id. at 28, 47.


[5]   The State charged Allen with two counts of class A misdemeanor domestic

      battery and two counts of class A misdemeanor battery resulting in bodily

      injury. At trial, Allen claimed that Hardy attacked him and that he acted in self-

      defense. The State dismissed one count of domestic battery and one count of

      battery. The court found Allen guilty of the remaining two charges, merged the

      class A misdemeanor battery into the class A misdemeanor domestic battery,

      and entered judgment of conviction on the domestic battery verdict. The trial

      court imposed a one-year sentence. Allen now appeals.


                                     Discussion and Decision
[6]   To prove that Allen committed domestic battery as a class A misdemeanor, the

      State was required to show that he knowingly or intentionally touched Hardy, a

      person with whom he had a common child, in a rude, insolent, or angry

      manner that resulted in bodily injury. Ind. Code § 35-42-2-1.3(a). The State

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-1982 | August 16, 2017   Page 3 of 6
      alleged that Allen committed domestic battery against Hardy by grabbing her

      arm and pulling her to the ground, resulting in pain, swelling, and/or bruising.

      Allen claims that he acted in self-defense and that the State failed to rebut this

      claim with sufficient evidence.


[7]   The standard of review for a challenge to the sufficiency of evidence to rebut a

      self-defense claim is the same as the standard for any sufficiency of the evidence

      claim. Kimbrough v. State, 911 N.E.2d 621, 635 (Ind. Ct. App. 2009). We

      neither reweigh the evidence nor assess the credibility of the witnesses. Jackson

      v. State, 925 N.E.2d 369, 375 (Ind. 2010). We consider only the probative

      evidence and reasonable inferences therefrom that support the conviction, and

      we consider conflicting evidence most favorably to the trial court’s ruling.

      Stephenson v. State, 53 N.E.3d 557, 560 (Ind. Ct. App. 2016). If a 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. Kimbrough, 911 N.E.2d at 635.


[8]   A valid self-defense claim is a legal justification for an otherwise criminal act.

      Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). A person is justified in using

      reasonable force against another 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. To prevail on such a claim, the defendant must

      show that he was in a place where he had a right to be, acted without fault, and

      “was protecting himself from what he reasonably believed to be the imminent

      use of unlawful force.” Dixson v. State, 22 N.E.3d 836, 839 (Ind. Ct. App. 2014),

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-1982 | August 16, 2017   Page 4 of 6
       trans. denied (2015). An initial aggressor or a mutual combatant, whether or not

       the initial aggressor, must withdraw from the encounter and communicate the

       intent to do so to the other person, before he may claim self-defense. Wilson v.

       State, 770 N.E.2d 799, 801 (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 beyond a reasonable doubt. Id at 800. The State

       can rebut the defendant’s self-defense claim by relying on the evidence of its

       case-in-chief. Carroll v. State, 744 N.E.2d 432, 434 (Ind. 2001).


[9]    Allen notes that he was in a place where he had a right to be and claims that he

       was not the instigator of the encounter. He maintains that it is far more likely

       from the evidence that Hardy was the aggressor and caused him to protect

       himself. He points to the verbal altercation that occurred earlier in the day and

       describes Hardy as being even more upset when she found an empty bottle of

       alcohol in the kitchen sink. He contends that Hardy struck him with the empty

       bottle, causing injury to his nose and eye.


[10]   However, the evidence most favorable to the trial court's ruling showed that

       Allen initiated the physical confrontation by attacking Hardy on two or three

       separate occasions. On one occasion, she attempted to walk away from Allen

       when he grabbed her arm, causing her to fall and suffer an abrasion to her

       elbow. Officer Mills confirmed the presence of the abrasion on Hardy’s elbow

       and testified that the injury appeared fresh when he arrived on the scene. Hardy

       testified that she did not hit Allen or strike him with an empty bottle. Both



       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-1982 | August 16, 2017   Page 5 of 6
       Hardy and Officer Mills testified that Allen’s swollen eye occurred when

       neighbors in the apartment complex attacked him in Hardy’s defense.


[11]   The factfinder was not required to credit Allen’s self-serving version of events.

       In essence, Allen’s argument is merely a request that we reweigh the evidence,

       which we will not do. Even by Allen’s own account, he and Hardy were

       engaged in a mutual altercation that escalated without any attempt by Allen to

       withdraw from the encounter. Based upon the record, we conclude that the

       State presented probative evidence from which a reasonable trier of fact could

       have found that Allen did not validly act in self-defense and that he was guilty

       of domestic battery as a class A misdemeanor. Therefore, we affirm Allen’s

       conviction.


[12]   Affirmed.


       Baker, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-1982 | August 16, 2017   Page 6 of 6
