Louis Board v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Jun 29 2012, 9:27 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. BURNS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LOUIS BOARD, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1111-CR-581
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Kimberly J. Brown, Judge
The Honorable Teresa A. Hall, Master Commissioner
Cause No. 49G16-1107-CM-51631
June 29, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Louis Board appeals his conviction for domestic battery as a class A
misdemeanor. Board raises one issue which we revise and restate as whether the
evidence is sufficient to support his conviction. We affirm.
The facts most favorable to the conviction follow. Latonia Allen and Board had a
child together. On July 16, 2011, Allen attended a birthday party at Lameisha Moore’s
residence in Marion County, and Board was present at the party. Board stared at Allen
during the party, and Allen asked Board why he was staring at her. Board stated that
Allen had been staring at him and that he “had owed [Allen] something.” Transcript at 8.
Allen told Board that he did not owe her anything but that he owed her daughter. After
further discussion, Board smacked Allen across her right cheek, and Allen jumped out of
her chair and attempted to grab Board, but Board grabbed Allen’s wrists and they
“tussled” for a minute or two. Id. at 9. Allen told Board that he “better let [her] go” and
“you better not hit me again,” and Board said, “I’ll hit you again if you talk about my
kids.” Id. at 21. Board’s sister eventually stood between Board and Allen. Allen
reached over and smacked Board across his left cheek. At some point, Board grabbed
Allen’s cell phone and threw the phone against a wall. The next day, Allen observed a
red mark across her arm and called the police. Lawrence Police Officer Michael Sostre
responded to the call, observed a scratch on Allen’s arm, and photographed Allen.
On July 22, 2011, the State charged Board with Count I, domestic battery as a
class A misdemeanor, Count II, criminal mischief as a class A misdemeanor, and Count
III, battery as a class B misdemeanor. At trial, when asked whether Board’s smack hurt,
Allen testified, “Not really.” Id. at 9. Allen also testified that the smack did not leave a
2
mark. When asked whether it hurt when Board grabbed her wrists, Allen indicated that it
did hurt “a little bit” and that Board was “holding kind of . . . tight.” Id. at 10. With
respect to whether Board’s act of grabbing her wrists left a mark, Allen testified that the
red mark on her arm was not present before the incident occurred and that “[t]here was
nothing else that [she] could have done between those hours that would have caused [her]
to have a red mark, other than when [they] got into at [sic] tussle.” Id. at 16-17. The
State introduced and the court admitted two pictures of Allen’s arm.
After closing arguments, the court stated: “I do find that the red marks indicate
[Board] caused those.” Id. at 40. The court also stated: “[Board] had a hold of her wrists
before the alleged victim slapped at him, at least per Mrs. Moore[’s] testimony. I do have
marks that she did say on the stand that him holding her wrist did hurt. She did say a
little, but she did say that they hurt.” Id. The court found Board guilty of domestic
battery as a class A misdemeanor, criminal mischief as a class B misdemeanor, and
battery as a class B misdemeanor. The court found that Count III merged with Count I.
The court sentenced Board to 365 days with 357 days suspended to probation for Count I
and 180 days with 172 days suspended for Count II. The court ordered the sentences to
be served concurrently.
The issue is whether the evidence is sufficient to sustain Board’s conviction for
domestic battery as a class A misdemeanor. When reviewing the sufficiency of the
evidence to support a conviction, we must consider only the probative evidence and
reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). We do not assess witness credibility or reweigh the evidence. Id. We consider
3
conflicting evidence most favorably to the trial court’s ruling. Id. We affirm the
conviction unless “no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind.
2000)). It is not necessary that the evidence overcome every reasonable hypothesis of
innocence. Id. at 147. The evidence is sufficient if an inference may reasonably be
drawn from it to support the verdict. Id.The offense of domestic battery as a class A misdemeanor is governed by Ind.
Code § 35-42-2-1.3(a) which provides:
A person who knowingly or intentionally touches an individual who:
(1) is or was a spouse of the other person;
(2) is or was living as if a spouse of the other person as provided
in subsection (c); or
(3) has a child in common with the other person;
in a rude, insolent, or angry manner that results in bodily injury to the
person described in subdivision (1), (2), or (3) commits domestic battery, a
Class A misdemeanor.
“Bodily injury” is defined as “any impairment of physical condition, including physical
pain.” Ind. Code § 35-41-1-4 (2004). “It is not necessary that some physical trauma to
the body be shown.” Lewis v. State, 438 N.E.2d 289, 294 (Ind. 1982). It is sufficient
that the victim experienced physical pain by the defendant’s action. Id.Board does not challenge the proof that he touched Allen in a rude, insolent, or
angry manner and concedes that the record supports conviction of battery as a class B
misdemeanor. Board argues that the touching did not result in pain. Board also argues
that “[w]hen [Allen] tried to retaliate against [him], he grabbed her wrists and held them a
4
minute or two in an obvious attempt to stop [her] from striking him.” Appellant’s Brief
at 6. The State argues that the relevant statute makes no mention that the physical pain be
of any particular magnitude or of any particular duration. The State also argues that
Allen felt pain when Board grabbed her wrists and suffered a red mark or abrasion.
With respect to the argument regarding bodily injury, the record reveals that Board
smacked Allen across her right cheek and then grabbed Allen’s wrists and they “tussled”
for a minute or two. Transcript at 9. Allen testified that it hurt when Board grabbed her
wrists and that he was “holding kind of . . . tight.” Id. at 10. Allen also indicated that
Board’s action of grabbing her wrists resulted in a red mark on her arm. Based upon the
record, we conclude that the State presented evidence of a probative nature from which a
reasonable trier of fact could have found that Board was guilty of domestic battery as a
class A misdemeanor. See McCullough v. State, 888 N.E.2d 1272, 1276 (Ind. Ct. App.
2008) (holding that the evidence was sufficient to find that victim suffered bodily injury
where the defendant grabbed victim’s arm to pull her back into a car, he was hurting her
arm, and the arm was bruised as a result of the defendant’s actions), summarily affirmed
by 900 N.E.2d 745 (Ind. 2009).
To the extent that Board argues that he acted in self-defense, we observe that self-
defense is governed by Ind. Code § 35-41-3-2. A valid claim of self-defense is legal
justification for an otherwise criminal act. Wilson v. State, 770 N.E.2d 799, 800 (Ind.
2002). In order to prevail on a self-defense claim, a defendant must demonstrate he was
in a place he had a right to be; did not provoke, instigate, or participate willingly in the
violence; and had a reasonable fear of death or great bodily harm. Id. The amount of
5
force a person may use to protect herself depends on the urgency of the situation.
Harmon v. State, 849 N.E.2d 726, 730-731 (Ind. Ct. App. 2006). However, if a person
uses “more force than is reasonably necessary under the circumstances,” his self-defense
claim will fail. Id. at 731; see also Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct.
App. 1999) (“Where a person has used more force than necessary to repel an attack the
right to self-defense is extinguished, and the ultimate result is that the victim then
becomes the perpetrator.”).
When a defendant claims self-defense, the State has the burden of disproving at
least one of the elements beyond a reasonable doubt. Wilson, 770 N.E.2d at 800. If a
defendant is convicted despite his 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. Id. at 800-801. A mutual combatant, whether or not the initial
aggressor, must declare an armistice before he or she may claim self-defense. Id. at 801
(citing Ind. Code § 35-41-3-2(e)(3) (“[A] person is not justified in using force if . . . the
person 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.”)). The standard of review for a challenge to the sufficiency of the evidence to
rebut a claim of self-defense is the same as the standard for any sufficiency of the
evidence claim. Id. We neither reweigh the evidence nor judge the credibility of
witnesses. Id. If there is sufficient evidence of probative value to support the conclusion
of the trier of fact, then the verdict will not be disturbed. Id.6
The record reveals that Board was the initial aggressor, and Board does not point
to the record to suggest and our review does not reveal that Board withdrew from the
encounter or communicated to Allen the intent to do so. Based upon the record, we
conclude that the State presented evidence of a probative nature from which a reasonable
trier of fact could have found that Board did not validly act in self-defense and that he
was guilty of domestic battery as a class A misdemeanor. See Rodriguez v. State, 714
N.E.2d 667, 670-671 (Ind. Ct. App. 1999) (holding that sufficient evidence existed to
rebut the defendant’s claim of self-defense), trans. denied.
For the foregoing reasons, we affirm Board’s conviction for domestic battery as a
class A misdemeanor.
Affirmed.
BAKER, J., and KIRSCH, J., concur.
7