Mark H. Greedy v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Sep 27 2016, 7:51 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
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark H. Greedy, September 27, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1512-CR-2324
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven J. Rubick,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G07-1508-CM-30942
Mathias, Judge.
[1] The State charged Mark Greedy (“Greedy”) with the battery and bodily injury
of Karen Hiser (“Hiser”), his housemate. Greedy was convicted after a bench
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trial in Marion Superior Court. He now attacks his conviction on the grounds of
insufficient evidence and the failure of his affirmative defense of self-defense.
[2] We affirm.
Facts and Procedural Posture
[3] In August 2015, Greedy and Hiser lived together as housemates in Greedy’s
Indianapolis home. On August 28, 2015, Hiser was entertaining two friends,
Jay and Alissa, whom Greedy did not like. As a result, Hiser reported, Greedy
engaged in a sustained campaign of harassment of Hiser and her friends in an
attempt to drive Jay and Alissa from his house. That campaign ended in
violence early in the morning of August 29, when Hiser followed Greedy into
her bedroom to speak with him. As she turned the corner into the room, a cane-
wielding Greedy struck Hiser twice across the face. Jay and Alissa fled; Hiser
took refuge at her mother’s house and called the police.
[4] Officers of the Indianapolis Metropolitan Police Department (“IMPD”) were
dispatched to Hiser’s mother’s home, where they took Hiser’s statement and
photographs of her face. Those photographs show swelling, bruising, and
possibly a cut. Later in the morning of August 29, IMPD officers accompanied
Hiser to Greedy’s house, where Hiser collected some belongings and officers
interviewed, photographed, and then arrested Greedy for battering Hiser.
Greedy told the officers that Hiser attacked him and he retaliated.
[5] Greedy was charged with battery causing bodily injury, a Class A
misdemeanor. His case was tried to the bench in Marion Superior Court on
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December 3, 2015. Hiser and two responding IMPD officers testified for the
State; Greedy did not testify and presented no evidence in his defense. The
court found Greedy guilty and sentenced him to thirty days’ confinement in the
Marion County jail. This appeal followed.
Whether Greedy’s Guilt Was Proved by Sufficient Evidence
[6] The State bears the burden of proving all elements of the crime charged beyond
a reasonable doubt. Powers v. State, 540 N.E.2d 1225, 1227 (Ind. 1989). On
direct appeal, a defendant may attack his conviction as unsupported by
evidence sufficient to have satisfied the State’s burden.
[7] When reviewing the sufficiency of the evidence, we neither reweigh the
evidence nor reevaluate its credibility. Henley v. State, 881 N.E.2d 639, 652 (Ind.
2008). Rather, we view the facts of the case and the reasonable inferences to be
drawn from them in the light most favorable to the judgment. Bailey v. State, 907
N.E.2d 1003, 1005 (Ind. 2009). We affirm unless no reasonable trier of fact
could have found the elements of the crime proved beyond a reasonable doubt.
Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007). A conviction may be upheld
even if supported only by the uncorroborated testimony of a single witness,
including the victim’s. Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012).
[8] Here, Hiser testified that Greedy hit her with a cane twice across the face. Tr. p.
7-8. An IMPD officer testified to Greedy’s own statement that Greedy had
“fought” Hiser. Id. at 33. The photographic evidence, taken within hours of the
incident, showed bruising, swelling, and possibly a cut on Hiser’s face. Ex. Vol.,
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State’s Ex. 2, Def.’s Ex. B. No more is required for us to uphold the trial court’s
judgment that Greedy knowingly touched Hiser in a rude, insolent, or angry
manner so as to cause her bodily injury, see Ind. Code § 35-42-2-1(c) (2015), and
was thus guilty of the crime charged.
[9] Greedy argues that the record will bear, at most, a finding of “mutual combat,”
but not battery. Appellant’s Br. at 10. This argument is unavailing. Combat
does not excuse or preclude battery because first aggression is not an element of
the offense. See I.C. § 35-42-2-1(c) (2015). Two combatants are generally
batterers of one another by definition, and it is entirely within the discretion of
the prosecutor to charge either, both, or neither. Cain v. State, 955 N.E.2d 714,
718 (Ind. 2011) (“Prosecutors have broad discretionary power to choose the
persons whom they prosecute . . . .”). Indeed, the trial court was willing to
credit the defense’s claim that “there was a mutual fight” between Greedy and
Hiser, Tr. p. 45, but concluded that this does not acquit Greedy of battery. We
agree.
Whether Greedy’s Defense of Self-Defense Was Raised and
Then Disproved by Sufficient Evidence
[10] We review challenges to the sufficiency of the evidence rebutting an accused’s
defense under the same standard as any sufficiency challenge. Wilson v. State,
770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh evidence nor reevaluate
witness credibility. Id. The evidence is viewed in the light most favorable to the
judgment below, which will not be disturbed unless no reasonable trier of fact
could have reached the same conclusion. Id.Court of Appeals of Indiana | Memorandum Decision 49A04-1512-CR-2324 | September 27, 2016 Page 4 of 8
[11] Because the State is required to prove the elements of its case beyond a
reasonable doubt, due process requires careful allocation of burdens of proof
with respect to an accused’s defenses. See Mullaney v. Wilbur, 421 U.S. 684(1975). Of self-defense, it is usually said, “[w]hen 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” of the defense. Wilson, 770 N.E.2d at 800.
If a defendant is convicted despite such a claim, the conviction will be upheld
on review unless no reasonable trier of fact could have found the defense
negated beyond a reasonable doubt. Id. at 800-01.
[12] At the threshold, it is therefore necessary to decide whether the State’s burden
has attached, that is, whether a claim of self-defense has been “raised” and
“found support in the evidence.”
[13] Self-defense is an affirmative defense of justification, “admitting that the facts of
the crime occurred but contending that the acts were justified.” Moon v. State,
823 N.E.2d 710, 716 (Ind. Ct. App. 2005), trans. denied. Indiana has allocated
the burden as to these defenses in two steps. Id. The first step requires the
defendant to produce evidence raising the defense. Id. This burden is sometimes
referred to as the burden of production. Hirsch v. State, 697 N.E.2d 37, 43 (Ind.
1998) (quoting 2 Paul H. Robinson, Criminal Law Defenses § 132 (1984)) (“The
burden of production for the defense of self-defense is always on the
defendant.”). See also Moore v. State, 673 N.E.2d 776, 779 (Ind. Ct. App. 1996)
(defining “burden of production” as “the burden of producing enough evidence
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such that [submission of the defense to the fact-finder] is warranted”), trans.
denied.
[14] This allocation differs from that required by defenses of mitigation, claims
which mitigate but do not wholly excuse the defendant’s culpability. Adkins v.
State, 887 N.E.2d 934, 938 (Ind. 2008) (discussing “sudden heat” as a
mitigation defense to murder and holding an unloaded weapon to be a
mitigation defense to pointing a firearm). In such cases, the defendant bears
“only the burden of placing the issue in question where the State’s evidence has
not done so.” Id. By contrast, in the affirmative defense of self-defense, the
defendant bears the burden of production or the initial burden of proof, and
“cannot make exculpatory statements outside court, present no evidence in
defense, preclude the state from cross-examining the assertions, and then be
entitled to have the self-serving statements constitute substantive evidence”
supporting submission of the defense to the trier of fact. Dearman v. State, 743
N.E.2d 757, 761 (Ind. 2001) (quoting Battles v. State, 688 N.E.2d 1230, 1234
(Ind. 1997)) (distinguishing defense of accident, on which the accused bears the
initial burden, from defenses of mitigation like sudden heat).
[15] In this light, we conclude that Greedy did not carry even the modest burden the
law placed on him. The record discloses no notice to the trial court that Greedy
intended to rely on the defense of self-defense. See Appellant’s App. pp. 7–11
(chronological case summary). Greedy himself did not testify, was thus
unavailable for cross-examination, and presented no evidence at trial. Tr. p. 42.
His closing argument did not so much as gesture in the direction of the defense
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but was devoted entirely to attacking Hiser’s credibility. Id. at 43-44. Before
rendering judgment, the trial court made a brief statement of its findings which
did not apparently contemplate self-defense. See id. at 45-46 (finding a “mutual
fight” occurred without finding a first aggressor). The sole reference made at
trial to any such claim was Greedy’s out-of-court statement to an IMPD officer
that Hiser attacked him first, a statement elicited from the officer on direct
examination by the State. Id. at 33. The statement was not thereafter referenced,
even on cross-examination of the testifying officer by Greedy’s counsel. See id.
at 35-41. Greedy was therefore not entitled to have his affirmative defense
submitted to the trier of fact for consideration, and it will not be considered for
the first time on appeal. Lafary v. Lafary, 476 N.E.2d 155, 159 (Ind. Ct. App.
1985). See also Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013)
(citing Ind. Trial Rule 8(C) (“A responsive pleading shall set forth affirmatively
and carry the burden of proving . . . any other matter constituting an . . .
affirmative defense.”)), trans. denied.
[16] In any event, consideration of Greedy’s claim on the merits would be of no
value to him. Self-defense generally does not shield an accused from liability if
he participated willingly in the violence. Wilson, 770 N.E.2d at 800. In such
cases, a mutual combatant must first declare an armistice before claiming self-
defense. Id. at 801; I.C. § 35-41-3-2(g)(3).
[17] As noted above, the trial court was willing to credit the defense’s claim of a
“mutual fight” between Greedy and Hiser. Tr. p. 45. However, no evidence at
all appears in the record that would support the claim that Greedy withdrew
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from combat, declared an armistice, and was then again threatened or attacked
by Hiser. Greedy’s self-defense claim would therefore fail on the merits.
[18] More than sufficient evidence appears in the record to support Greedy’s
conviction for battery causing bodily injury. Greedy failed to raise properly the
defense of self-defense. Even had he done so, no evidence favorable to the
judgment would support that defense. His conviction must therefore stand.
[19] Affirmed.
Robb, J., and Brown, J., concur.
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