MEMORANDUM DECISION
                                                                         FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as                        Sep 19 2017, 8:39 am

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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Troy D. Warner                                           Curtis T. Hill, Jr.
Deputy Public Defender                                   Attorney General of Indiana
South Bend, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Travis Wayne Vena,                                       September 19, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1704-CR-867
        v.                                               Appeal from the St. Joseph Superior
                                                         Court.
                                                         The Honorable Julie Verheye,
State of Indiana,                                        Magistrate.
Appellee-Plaintiff.                                      Trial Court Cause No.
                                                         71D03-1701-CM-195




Barteau, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-867 | September 19, 2017     Page 1 of 6
                                          Statement of the Case
[1]   Travis Wayne Vena appeals his conviction of disorderly conduct, a Class B
                           1
      misdemeanor. We affirm and remand.


                                                    Issues
[2]   Vena raises two issues, which we restate as:

                 I.       Whether the State presented sufficient evidence to rebut
                          Vena’s claim of self-defense.
                 II.      Whether the trial court abused its discretion in ordering
                          Vena to pay restitution.

                                   Facts and Procedural History
[3]   On the evening of January 7, 2017, Justin Rohr went to a bar with his

      housemates, Vena and Jesus Bueno. Vena and Bueno began arguing with

      Rohr, who was depressed over a recently-ended romantic relationship, so the

      three men left to go home. Vena and Bueno yelled at Rohr all the way home.


[4]   When they returned home, Rohr went down to the basement alone and smoked

      a cigarette. Next, he went upstairs to the kitchen, where Vena confronted him

      and said he needed to move out. Vena further told Rohr to return his key to the

      house. Rohr gave him the key and turned to leave the kitchen. Vena then hit

      Rohr three times while Rohr’s back was turned, striking him in the head.




      1
          Ind. Code § 35-45-1-3 (2014).



      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-867 | September 19, 2017   Page 2 of 6
[5]   Rohr struck back at Vena and then went into the front room. Bueno confronted

      him as he tried to leave the house. As Rohr and Bueno struggled, Vena struck

      Rohr in the back of the head again, this time with a piece of wood. Rohr

      escaped outside, and Vena slammed the door in his face. Rohr went to his

      mother’s house and then to the hospital to seek treatment for his injuries, which

      included a cut on the top of his head that required surgical staples. Later, a

      police officer came to the house to investigate. Vena initially denied that there

      had been a fight even though he had a swollen nose and blood on his hand.


[6]   Vena later presented a different version of events, claiming that Rohr was angry

      while they were at the bar, and when they returned home they argued and Rohr

      struck him first. Vena further claimed Rohr’s attack led to a three-person

      scuffle, which in turn resulted in Rohr being ejected from the house.


[7]   The State charged Vena with disorderly conduct. The case was tried to the

      bench, and Vena argued self-defense. The magistrate determined Vena was

      guilty and imposed a sentence, which included an order of restitution for Rohr’s

      medical bills. This appeal followed.


                                   Discussion and Decision
                                             I. Self-Defense
[8]   Vena argues his conviction must be reversed because the State failed to present

      sufficient evidence to rebut his claim of self-defense. A valid claim of self-

      defense is a legal justification for an otherwise criminal act. Henson v. State, 786

      N.E.2d 274, 277 (Ind. 2003). A person may use reasonable force against

      Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-867 | September 19, 2017   Page 3 of 6
       another to protect himself or herself or a third person from what he or she

       reasonably believes to be the imminent use of unlawful force. Ind. Code § 35-

       41-3-2 (2013). To prevail on a claim of self-defense, a defendant must show he

       or she: (1) was in a place he or she had a 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. Wolf v. State, 76 N.E.3d 911, 915 (Ind. Ct. App.

       2017).


[9]    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. Bryant v. State, 984 N.E.2d 240, 250 (Ind. Ct. App. 2013),

       trans. denied. In reviewing a challenge to the sufficiency of the evidence to rebut

       a claim of self-defense, we neither reweigh the evidence nor judge the credibility

       of the witnesses. Id. We instead consider only the probative evidence and

       reasonable inferences drawn from the evidence that support the verdict. Id. A

       conviction despite a claim of self-defense will be reversed only if no reasonable

       person could say that self-defense was negated by the State beyond a reasonable

       doubt. Id.


[10]   In this case, the State presented sufficient evidence for the finder of fact to

       determine beyond a reasonable doubt that the State had rebutted Vena’s claim

       of self-defense. Per Rohr, Vena attacked him without provocation, thus

       instigating the violence, as Rohr attempted to leave the kitchen. Rohr had

       given his house key to Vena. Further, Rohr’s injuries indicate he was attacked

       from behind, which tends to show Vena did not have a fear of great bodily

       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-867 | September 19, 2017   Page 4 of 6
       harm or death. Vena and Bueno continued to fight with Rohr as he attempted

       to leave the house, and Vena struck Rohr on the head with a piece of wood

       during the struggle. In addition, when questioned by the police Vena did not

       initially claim self-defense, choosing instead to falsely assert no fight had

       occurred.


[11]   Vena points to testimony indicating that Rohr attacked him first. He further

       notes the police never found the piece of wood with which he struck Rohr.

       These arguments amount to a request to reweigh the evidence, which we

       cannot do. See Tharpe v. State, 955 N.E.2d 836, 845 (Ind. Ct. App. 2011) (State

       provided sufficient evidence to rebut self-defense; evidence favorable to

       judgment indicated defendant was the aggressor), trans. denied.


                                              II. Restitution
[12]   Vena argues the trial court erred in ordering him to pay restitution to Rohr for

       Rohr’s medical bills. When a court sentences a defendant for a felony or

       misdemeanor, the court may order the defendant to make restitution to a victim

       of the crime. Ind. Code § 35-50-5-3 (2014). Damages may include “medical

       and hospital costs incurred by the victim . . . as a result of the crime.” Id. A

       restitution order is within the trial court’s discretion, and we review that portion

       of a defendant’s sentence for an abuse of discretion. Mata v. State, 866 N.E.2d

       346, 349 (Ind. Ct. App. 2007). An abuse of discretion occurs if the court’s

       decision is clearly against the logic and effects of the facts and circumstances

       before it. Bennett v. State, 862 N.E.2d 1281, 1286 (Ind. Ct. App. 2007).


       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-867 | September 19, 2017   Page 5 of 6
[13]   Vena argues the trial court should not have ordered him to pay restitution

       because Rohr was “the initial aggressor” in their struggle. Appellant’s Br. p. 9.

       We disagree. Viewing the facts in the light most favorable to the judgment,

       Vena started the fight. Thus, Vena caused Rohr’s injuries, and we find no

       abuse of discretion in the trial court’s award of restitution.


[14]   We note there is an inconsistency in the trial court’s orders regarding

       restitution. At trial, the State submitted bills showing Rohr incurred $1,314 in

       medical expenses due to the attack. The court stated, “I am going to order

       restitution in the amount of $1,314 . . . .” Tr. Vol. 2, p. 44. In both the order

       setting the terms of probation and in a docket entry, the court noted it ordered

       restitution in the amount of $1,314. However, as the State concedes, the court’s

       order of judgment and restitution directs Vena to pay “$1324.00.” Appellant’s

       App. Vol. 2, p. 26. We conclude the reference to $1,324 is a scrivener’s error

       and remand to the trial court to issue a corrected order of judgment and

       restitution.


                                                Conclusion
[15]   For the reasons stated above, we affirm the judgment of the trial court but

       remand with instructions to correct the order of restitution.


[16]   Affirmed and remanded.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1704-CR-867 | September 19, 2017   Page 6 of 6
