Terry Baksh v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jun 11 2018, 6:10 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Barbara J. Simmons Curtis T. Hill, Jr.
Oldenburg, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Terry Baksh, June 11, 2018
Appellant-Defendant, Court of Appeals Case No.
49A04-1711-CR-2591
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Clayton A.
Appellee-Plaintiff Graham, Judge
Trial Court Cause No.
49G07-1611-CM-44639
Altice, Judge.
Case Summary
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[1] Following a bench trial, Terry Baksh was convicted of Class A misdemeanor
battery. On appeal, Baksh argues that the State failed to present sufficient
evidence to rebut his claim of self-defense.
[2] We affirm.
Facts & Procedural History
[3] Around 3:00 a.m. on October 4, 2016, Baksh and Cindy Taylor became
involved in a verbal argument at Taylor's home. Baksh was the nephew of
Taylor's boyfriend, and both were living with Taylor at the time. Taylor
accused Baksh of failing to pay rent that he had agreed to pay. The argument
ended with no resolution as Baksh merely indicated he might consider moving
out, rather than paying Taylor rent. The two went to bed and did not speak
until that afternoon when Taylor returned home from work.
[4] Upon returning home, Taylor went upstairs to Baksh's room, where she found
him lying on his bed and playing on his cell phone. Taylor recalled their
conversation from earlier that morning and asked Baksh whether he had
decided to stay or leave. The conversation quickly escalated and became
heated. Taylor accused Baksh of lying to her about the intent to pay the rent
money, and Baksh became angry. Taylor told Baksh to leave her house, and he
began to pack.
[5] While Baksh gathered his belongings, Taylor continued to badger him, calling
him a liar. Baksh began to shout and punch his bed and then he got up, moved
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towards Taylor, and yelled he was "not a fucking liar" Transcript Vol. II at 42.
Taylor flinched as Baksh approached her and Baksh hit her in the head with a
closed fist. Taylor then attempted to defend herself and fight back but to no
avail. Baksh picked her up, slammed her into a bookshelf, threw her against
two dressers, and then pinned her against a glass window. As Baksh released
his grip, Taylor fell from the window, and curled up in the fetal position. Baksh
then placed Taylor in a chokehold.
[6] After Baksh released Taylor from his hold, Taylor told Baksh to leave the
house. He proceeded to run across the street to a neighbor's home, while
Taylor took pictures of her injuries with her cell phone. She then called the
police. Officer Noel Gudat, an officer with the Indianapolis Metropolitan
Police Department, observed Taylor had been hit several times on her head and
neck, was bleeding substantially, and noted that it was difficult for her to
swallow. Taylor continued to suffer pain from her injuries for nearly a month.
With Taylor's permission, Officer Gudat entered the house where he observed
gashes on the walls, blood stains by the window, and pools of blood on a
dresser.
[7] On November 11, 2016, the State charged Baksh with Class A misdemeanor
battery resulting in a bodily injury. Following a bench trial on October 17,
2017, Baksh was found guilty as charged. The trial court sentenced Baksh to
365 days in prison with 180 days suspended to probation. Baksh now appeals.
Additional facts will be provided as necessary.
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Decision & Discussion
[8] Baksh argues that the State did not present sufficient evidence to rebut his claim
of self-defense. "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 of any
sufficiency of the evidence claim." Wilson v. State, 770 N.E.2d 799, 801 (Ind.
2002). We may not reweigh the evidence or judge the credibility of witnesses.
Bocanegra v. State, 969 N.E.2d 1026, 1028 (Ind. Ct. App. 2012). Where there is
sufficient evidence of probative value to support the conclusion of the trier of
fact, the trial court's verdict will be affirmed. Ferrell v. State, 746 N.E.2d 48, 51
(Ind. 2001).
[9] Ind. Code Section 35-41-3-2(c) provides that " [a] person is justified in using
reasonable force against any other person to protect the person or a third party
from what the person reasonably believes to be the imminent use of unlawful
force." To succeed on a valid self-defense claim, a defendant must show (1) he
was in a place that he 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 800-01; see also Bryant v. State, 984
N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied; Tharpe v. State, 955 N.E.2d
836, 844 (Ind. Ct. App. 2011). trans. denied. Once a self-defense claim is raised
by the defendant, the burden is then placed on the State to disprove the claim
beyond a reasonable doubt. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999).
The State may accomplish this by rebutting one of the elements directly, by
affirmatively showing that the defendant did not act in self-defense, or by
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relying on the sufficiency of its evidence in chief. Hood v. State, 87 N.E.2d 492,
497 (Ind. Ct. Ap. 2007), trans. denied
[10] A person is not justified in using force if he has "entered into combat with
another person or is the initial aggressor unless the person withdraws from the
encounter and communicates to the other person the intent to do so and the
other person nevertheless continues or threatens to continue unlawful action."
I.C. Section 35-41-3-2(g)(3).
[11] An "initial aggressor" is one who provokes a fight or who willingly participates
in it. See Bryant v. State, 984 N.E.2d at 251 ("This evidence reasonably
establishes that Bryant provoked the fight, or at least participated willingly in it,
which undermines his claim of self-defense."). In Bryant, A jail inmate was
found to be an initial aggressor after he became involved in an argument with
another inmate, challenged him to a fight, and was convicted, despite
conflicting evidence as to who tried to hit whom first. Id. Additionally, this
Court found a defendant was an initial aggressor after a verbal argument
escalated into a physical altercation that resulted in the defendant choking and
punching the victim. See Cole v. State, 28 N.E.3d 1126, 1129-30 (Ind. Ct. App.
2015).
[12] Here, Baksh was the initial aggressor. The verbal dispute between Taylor and
Baksh intensified when Baksh punched his bunk bed and aggressively moved
towards Taylor while yelling. Given Baksh's hostile actions that occurred
immediately before Taylor raised her hands, it is reasonable to infer that
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Taylor's actions were not an overt act of aggression, but rather, a reasonable
defensive reaction to Baksh's aggressiveness. Baksh was the initial aggressor
because his violent and forceful actions caused what had previously been a
verbal argument to transform into a physical altercation between Taylor and
himself. Baksh instigated the fight with his belligerent actions and additionally,
was the first person to make physical contact. Uncontroverted testimony from
both Taylor and Baksh established that Baksh struck Taylor multiple times in
between her shoulder and head with a closed fist as she attempted to defend
herself from his initial attack. Because the State's evidence supports the
determination that Baksh was the initial aggressor, Baksh's self-defense claim
fails and the evidence at trial was sufficient for his conviction.
[13] Judgement affirmed.
[14] Najam, J. and Robb, J., concur.
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