Jasmine Sivels v. State of Indiana (mem. dec.) ( 2016 )

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.
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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
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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
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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
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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
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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
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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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