MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Oct 14 2016, 8:48 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jasmine Sivels,                                          October 14, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1602-CR-323
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Ronnie Huerta,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G19-1509-CM-33756



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-323 | October 14, 2016    Page 1 of 8
                                Case Summary and Issue
[1]   Following a bench trial, Jasmine Sivels was found guilty of battery resulting in

      bodily injury, a Class A misdemeanor. Sivels raises one issue for our review:

      whether the State presented sufficient evidence to rebut Sivels’ claim of self-

      defense. Concluding the State presented sufficient evidence to rebut Sivels’

      assertion that she acted in self-defense, we affirm her conviction.



                            Facts and Procedural History
[2]   On August 24, 2015, Sivels and five of her friends cut through a side yard at the

      duplex where Sivels and her mother lived. Christine and April Mathews lived

      next door to Sivels in the duplex. Sivels and her mother had an ongoing

      dispute with Christine and April regarding access to the side yard, which was

      located on the Mathewses’ side of the house. The Mathewses expressed

      concern that they walked their dog in the side yard, and they did not want the

      dog eating trash or other items dropped in the yard. In addition, the dog was

      large and they did not want anyone to surprise them when they had the dog

      out. At one time, the Mathewses posted a no trespassing sign in the yard but it

      disappeared during the night.


[3]   On the day in question, Christine and April saw Sivels and her friends cutting

      through the side yard. Christine confronted the group, declaring they were not

      allowed in the yard. Sivels replied that she had lived at the house for five years

      and “goes where she wants.” Transcript at 10. When Christine reiterated her


      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-323 | October 14, 2016   Page 2 of 8
      concerns for the dog, Sivels threatened to shoot both Christine and the dog.

      Next, Sivels went to a nearby car, opened the door, and patted the seat, which

      Christine believed “insinuate[d] that there was a gun.” Id. at 12. As the

      argument progressed, Christine and April decided to return to their house,

      turning their backs to Sivels and her friends. Sivels and her friends then

      attacked the Mathewses from behind.


[4]   While the physical altercation ignited and ended quickly, April received

      punches to the back of the head and kidney area. April’s attackers swung her

      around by her hair, and she saw a boy with a gun while Christine was lying on

      the ground. Christine recalled multiple attackers striking her ears and jaw

      before she lost consciousness. Assuming the fetal position to deflect the kicks

      and punches, Christine was unsure of who hit her. Neighbors quickly

      intervened by threatening to call police if the attackers did not stop. One

      neighbor, Redeena McKamey, testified that she observed Sivels strike April

      approximately four or five times in the face, arms, and head. After the attack,

      the Mathewses went to the hospital to receive treatment for their injuries. Both

      Christine and April missed three days of work following the event. In the days

      following the incident, the Mathewses saw Sivels who, while making boxing

      motions, asked if the Mathewses “wanted [their] a** beat again.” Id. at 35.


[5]   The State charged Sivels with two counts of battery resulting in bodily injury,

      both Class A misdemeanors, Count I for battery against Christine and Count II

      for battery against April. Sivels moved for a Trial Rule 41(B) involuntary

      dismissal of both counts following the State’s case-in-chief. The trial court

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      dismissed Count I for acts against Christine because Christine was unable to

      identify who attacked her and McKamey did not specifically observe Sivels

      strike Christine. As to Count II, Sivels testified that she warned her friends to

      avoid the Mathewses’ yard. According to Sivels, April first addressed the group

      with provoking language, and Sivels informed her friends, “I just got on my

      probation and I need you all to stop.” Id. at 115. Instead, one of Sivels’ friends

      swung at Christine. Sivels claimed she attempted to break up the fight to no

      avail, receiving punches and blows herself as a result of her efforts. Sivels

      claimed she never touched the Mathewses. The trial court found Sivels guilty

      of battery resulting in bodily injury to April. Sivels now appeals her conviction.



                                 Discussion and Decision
                                     I. Standard of Review
[6]   Sivels argues she acted in self-defense throughout the incident with the

      Mathewses. When a claim of self-defense is presented, the State assumes the

      burden of negating of at least one of the necessary elements. McEwen v. State,

      695 N.E.2d 79, 90 (Ind. 1998). In the event the defendant is convicted despite

      asserting a claim of self-defense, we will reverse only if no reasonable person

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

      Wilson v. State, 770 N.E.2d 799, 800-01 (Ind. 2002). “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.” Id. at 801.

      “We neither reweigh the evidence nor judge the credibility of witnesses. If

      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-323 | October 14, 2016   Page 4 of 8
      there is sufficient evidence of probative value to support the conclusion of the

      trier of fact, then the verdict will not be disturbed.” Id. (internal citation

      omitted).


                              II. Sufficiency of the Evidence
[7]   “A valid claim of self-defense is legal justification for an otherwise criminal

      act.” Cole v. State, 28 N.E.3d 1126, 1137 (Ind. Ct. App. 2015). Self-defense is

      defined by statute in Indiana: “A person is justified in using reasonable force

      against any other 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(c). In order to prevail on a self-defense claim, a defendant

      must establish that she (1) was in a place where 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. Wilson, 770 N.E.2d at 800.


[8]   As to the first element, the Mathewses had asked Sivels and her mother to stay

      out of the side yard in the past, and on the day of the fight, the Mathewses

      informed Sivels and her friends they did not have permission to enter the yard.

      The yard was on the Mathewses’ side of the duplex and a no trespassing sign

      had previously been posted in the yard. Clearly, the Mathewses thought they

      had the right to exclude people from the side yard. Just as clearly, Sivels

      thought she had the right to use the side yard. Sivels and the Mathewses rented

      units in a single building and there was no evidence regarding whether the yard

      was in fact a common area. It is therefore not entirely clear whether Sivels had


      Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-323 | October 14, 2016   Page 5 of 8
       a right to occupy the side yard. Regardless, the defendant must establish all

       three elements of a self-defense claim. If the State’s evidence rebutted either of

       the remaining two elements, Sivels’ self-defense claim fails.


[9]    With regard to the second element—whether Sivels provoked, instigated, or

       participated willingly in the fight—the evidence supports the conclusion Sivels

       did not act without fault. Sivels and her friends cut through the yard despite

       knowing such an act could incite a response from the Mathewses, and Sivels

       argued with the Mathewses saying she would go where she wanted. In

       response to a request she stay out of the side yard, Sivels threatened to shoot

       both the Mathewses and their dog, and her following actions implied she had a

       gun at her disposal. While it is not clear who in Sivels’ group first assaulted the

       Mathewses, Sivels’ actions provoked the confrontation. Moreover, Sivels acted

       as a willing participant in the fight by punching April multiple times. See Cole,

       28 N.E.3d at 1137 (holding a defendant’s self-defense claim failed when

       evidence showed he instigated the fight by first verbally attacking the victim and

       putting his hands on the victim to pin him against a counter and then, after the

       victim pushed him away and said he did not want to fight, willingly escalated

       the aggression by grabbing the victim by the neck). Sivels’ repeated physical

       attacks against April demonstrate she intended to engage in the fight. Sivels’

       statements in the days following the fight, implying she wished to cause further

       injury, bolster the conclusion Sivels willingly participated in the aggressive acts.


[10]   Finally, Sivels’ acts against the Mathewses were unreasonable. “Where a

       person has used more force than is reasonably necessary to repel an attack, the

       Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-323 | October 14, 2016   Page 6 of 8
       right of self-defense is extinguished, and the ultimate result is that the intended

       victim then becomes the perpetrator.” Geralds v. State, 647 N.E.2d 369, 373

       (Ind. Ct. App. 1995), trans. denied. Even if Sivels had a justifiable reason to

       defend herself, Sivels had to respond with an amount of force proportional to

       the urgency of the situation. Id. Up until the time the Mathewses turned their

       backs to Sivels’ group, the parties displayed only verbal aggression. Using

       physical force in response to the Mathewses’ verbal hostility cannot be

       described as reasonable. During the fight, both Christine and April lay on the

       ground, attempting to deflect the blows. McKamey observed Sivels strike April

       multiple times on her face and body. Sivels actions cannot be reasonably

       characterized as defensive when the Mathewses assumed the fetal position to

       escape the attack. See Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct. App.

       1999) (noting that although defendant was in a place he had a right to be and

       was not the first aggressor, his self-defense claim was defeated by evidence he

       retaliated for a punch in the face by stabbing the victim in the side and chasing

       the retreating victim). The Mathewses had turned away from Sivels and her

       friends when Sivels attacked April. The Mathewses did not present a physical

       threat to Sivels or her friends that justified their response.


[11]   Sivels argues her actions were misperceived and therefore reasonable because

       she attempted to prevent the fight, not instigate it. For example, she argues that

       because McKamey was standing an undisclosed distance away from the

       skirmish, she may have improperly interpreted Sivels’ actions as aggressive

       rather than defensive. Such an argument, however, invites us to reevaluate the


       Court of Appeals of Indiana | Memorandum Decision 49A05-1602-CR-323 | October 14, 2016   Page 7 of 8
       credibility of the witnesses in this case, which we will not do. See Wilson, 770

       N.E.2d at 801.



                                               Conclusion
[12]   The State presented sufficient evidence to rebut Sivels’ claim that she acted in

       self-defense, and we therefore affirm Sivels’ conviction for battery.


[13]   Affirmed.


       Mathias, J., and Brown, J., concur.




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