Sylvester Dunn v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Mar 31 2015, 9:27 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing 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
Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Sylvester Dunn, March 31, 2015
Appellant-Petitioner, Court of Appeals Case No.
49A05-1407-CR-327
v. Appeal from the Marion Superior
Court.
The Honorable Helen Marchal,
State of Indiana, Judge.
Appellee-Respondent The Honorable Stanley E. Kroh,
Magistrate.
Cause No. 49G16-1404-CM-17558
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision [Case number] | March 31, 2015 Page 1 of 5
[1] Sylvester Dunn appeals his conviction for Battery, a Class B misdemeanor. 1
Dunn argues that the State provided insufficient evidence to disprove his self-
defense argument. Finding that a reasonable fact-finder could find Dunn guilty
of battery based on the evidence presented, we affirm.
Facts
[2] On March 17, 2014, at or around 4.30 a.m., Dunn drove to his home after
getting off work. On arriving home, he found Lisa Day parked outside his
house, waiting inside her vehicle. At the time, Day and Dunn were
romantically involved. Dunn had agreed to rendezvous with Day earlier, but
he had failed to show. Knowing she would be angry with him, Dunn did not
stop at his house. Instead, he drove to a gas station a few blocks away. Day
followed him in her vehicle.
[3] On arriving at the station, Dunn and Day pulled up to different pumps. Dunn
opened his driver side door, and Day stood in front of the door, refusing to
move. An argument ensued, and Day shoved an open hand into Dunn’s face.
In response, Dunn pushed Day to the pavement. Dunn then entered his vehicle
and closed the door. At that moment, Day kicked the rear of Dunn’s vehicle.
In response to the kick, Dunn exited the vehicle and Day retreated to her own
vehicle. Dunn chased after Day and grabbed by her shirt, holding her against
the side of her vehicle. He told Day: “[g]et [your] ass home, leave me the fuck
1
Indiana Code § 35-42-2-1(b).
Court of Appeals of Indiana | Memorandum Decision [Case number] | March 31, 2015 Page 2 of 5
alone.” Tr. p. 21. Dunn then released his grip on Day’s shirt, returned to his
vehicle, and drove away. Day called the police.
[4] On April 10, 2014, Dunn was charged with Battery, a Class A misdemeanor.2
On June 24, 2014, after a bench trial, Dunn was convicted of the lessor
included offense of battery, a class B misdemeanor. The trial court found that
Dunn was acting in self-defense when he pushed Day to the pavement, but it
concluded that Dunn did not act in self-defense when he chased Day down and
held her against her vehicle. Dunn was sentenced to eight days in jail with time
served. Dunn now appeals his conviction.
Discussion and Decision
[5] When reviewing a challenge to the sufficiency of the evidence supporting a
conviction, this Court neither reweighs the evidence nor judges the credibility of
the witnesses. Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App.
2008). Instead, “we must consider only the probative evidence and reasonable
inferences supporting the verdict.” McHenry v. State, 820 N.E.2d 124, 126 (Ind.
2005). “If there is sufficient evidence of probative value to support the
conclusion of the trier-of-fact, then the verdict will not be disturbed.” Pinkston v.
State, 821 N.E.2d 830, 841-42 (Ind. Ct. App. 2004).
2
Ind. Code § 35-42-2-1(c).
Court of Appeals of Indiana | Memorandum Decision [Case number] | March 31, 2015 Page 3 of 5
[6] During trial, Dunn raised a claim of self-defense. Indiana Code section 35-41-
3-2(d) provides:
A person:
(1) is justified in using reasonable force, including deadly force, against
any other person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to prevent
or terminate the other person’s unlawful entry of or attack on the
person’s dwelling, curtilage, or occupied motor vehicle.
Thus, a defendant claiming self-defense must show that he was using force that
he reasonably believed to be necessary to prevent or terminate an attack on his
dwelling, curtilage, or occupied motor vehicle.3 Id.; See also Dixson v. State, 22
N.E.3d 836, 839 (Ind. Ct. App. 2014), trans. pending (when a defendant is
claiming self-defense in a case that does not involve deadly force, the defendant
must only show that which is required by statute in order to prove self-defense).
Once self-defense is raised as a claim, the State has the burden of negating at
least one of the necessary elements of self-defense. Wilson v. State, 770 N.E.2d
799, 800 (Ind. 2002). Dunn claims that the State failed to negate the reasonable
belief factor for his claim of self-defense.
[7] In Wilson, our Supreme Court held that an attack was unlikely made in self-
defense when the attack occurred after the aggressor was “attempting to leave
3
This standard differs from the standard applied to self-defense when deadly force is used. When deadly
force is used, the defendant must also show that he: “(1) was in a place where 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.
Court of Appeals of Indiana | Memorandum Decision [Case number] | March 31, 2015 Page 4 of 5
the area.” Id. at 801. Instead, such an attack gave rise to an inference that the
defendant “was retaliating for the initial assault.” Id. Here, the trial court
found that Dunn did not act in self-defense because Day “was retreating”
when he grabbed her and held her against her vehicle. Tr. p. 29. Specifically,
because Day was retreating, the trial court found that Dunn could not
reasonably have believed that the force he used was necessary to prevent or
terminate Day’s harm to the motor vehicle. Id. Additionally, Day had already
ceased her attack on the vehicle before being chased down by Dunn. The
inferences and conclusions drawn by the trial court negated the reasonable
belief element necessary for a claim of self-defense.
[8] We cannot conclude that the trial court erred in drawing its conclusion. Thus,
we find that the evidence was sufficient to support Dunn’s conviction.
[9] Accordingly, the judgment of the trial court is affirmed.
Vaidik, C.J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision [Case number] | March 31, 2015 Page 5 of 5