Travis Wayne Vena v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as Sep 19 2017, 8:39 am
precedent or cited before any court except for the CLERK
purpose of establishing the defense of res judicata, Indiana Supreme Court
Court of Appeals
collateral estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Troy D. Warner Curtis T. Hill, Jr.
Deputy Public Defender Attorney General of Indiana
South Bend, Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Travis Wayne Vena, September 19, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1704-CR-867
v. Appeal from the St. Joseph Superior
Court.
The Honorable Julie Verheye,
State of Indiana, Magistrate.
Appellee-Plaintiff. Trial Court Cause No.
71D03-1701-CM-195
Barteau, Senior Judge
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Statement of the Case
[1] Travis Wayne Vena appeals his conviction of disorderly conduct, a Class B
1
misdemeanor. We affirm and remand.
Issues
[2] Vena raises two issues, which we restate as:
I. Whether the State presented sufficient evidence to rebut
Vena’s claim of self-defense.
II. Whether the trial court abused its discretion in ordering
Vena to pay restitution.
Facts and Procedural History
[3] On the evening of January 7, 2017, Justin Rohr went to a bar with his
housemates, Vena and Jesus Bueno. Vena and Bueno began arguing with
Rohr, who was depressed over a recently-ended romantic relationship, so the
three men left to go home. Vena and Bueno yelled at Rohr all the way home.
[4] When they returned home, Rohr went down to the basement alone and smoked
a cigarette. Next, he went upstairs to the kitchen, where Vena confronted him
and said he needed to move out. Vena further told Rohr to return his key to the
house. Rohr gave him the key and turned to leave the kitchen. Vena then hit
Rohr three times while Rohr’s back was turned, striking him in the head.
1
Ind. Code § 35-45-1-3 (2014).
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[5] Rohr struck back at Vena and then went into the front room. Bueno confronted
him as he tried to leave the house. As Rohr and Bueno struggled, Vena struck
Rohr in the back of the head again, this time with a piece of wood. Rohr
escaped outside, and Vena slammed the door in his face. Rohr went to his
mother’s house and then to the hospital to seek treatment for his injuries, which
included a cut on the top of his head that required surgical staples. Later, a
police officer came to the house to investigate. Vena initially denied that there
had been a fight even though he had a swollen nose and blood on his hand.
[6] Vena later presented a different version of events, claiming that Rohr was angry
while they were at the bar, and when they returned home they argued and Rohr
struck him first. Vena further claimed Rohr’s attack led to a three-person
scuffle, which in turn resulted in Rohr being ejected from the house.
[7] The State charged Vena with disorderly conduct. The case was tried to the
bench, and Vena argued self-defense. The magistrate determined Vena was
guilty and imposed a sentence, which included an order of restitution for Rohr’s
medical bills. This appeal followed.
Discussion and Decision
I. Self-Defense
[8] Vena argues his conviction must be reversed because the State failed to present
sufficient evidence to rebut his claim of self-defense. A valid claim of self-
defense is a legal justification for an otherwise criminal act. Henson v. State, 786
N.E.2d 274, 277 (Ind. 2003). A person may use reasonable force against
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another to protect himself or herself or a third person from what he or she
reasonably believes to be the imminent use of unlawful force. Ind. Code § 35-
41-3-2 (2013). To prevail on a claim of self-defense, a defendant must show he
or she: (1) was in a place he or 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. Wolf v. State, 76 N.E.3d 911, 915 (Ind. Ct. App.
2017).
[9] When 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 beyond a
reasonable doubt. Bryant v. State, 984 N.E.2d 240, 250 (Ind. Ct. App. 2013),
trans. denied. In reviewing a challenge to the sufficiency of the evidence to rebut
a claim of self-defense, we neither reweigh the evidence nor judge the credibility
of the witnesses. Id. We instead consider only the probative evidence and
reasonable inferences drawn from the evidence that support the verdict. Id. A
conviction despite a claim of self-defense will be reversed only if no reasonable
person could say that self-defense was negated by the State beyond a reasonable
doubt. Id.[10] In this case, the State presented sufficient evidence for the finder of fact to
determine beyond a reasonable doubt that the State had rebutted Vena’s claim
of self-defense. Per Rohr, Vena attacked him without provocation, thus
instigating the violence, as Rohr attempted to leave the kitchen. Rohr had
given his house key to Vena. Further, Rohr’s injuries indicate he was attacked
from behind, which tends to show Vena did not have a fear of great bodily
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harm or death. Vena and Bueno continued to fight with Rohr as he attempted
to leave the house, and Vena struck Rohr on the head with a piece of wood
during the struggle. In addition, when questioned by the police Vena did not
initially claim self-defense, choosing instead to falsely assert no fight had
occurred.
[11] Vena points to testimony indicating that Rohr attacked him first. He further
notes the police never found the piece of wood with which he struck Rohr.
These arguments amount to a request to reweigh the evidence, which we
cannot do. See Tharpe v. State, 955 N.E.2d 836, 845 (Ind. Ct. App. 2011) (State
provided sufficient evidence to rebut self-defense; evidence favorable to
judgment indicated defendant was the aggressor), trans. denied.
II. Restitution
[12] Vena argues the trial court erred in ordering him to pay restitution to Rohr for
Rohr’s medical bills. When a court sentences a defendant for a felony or
misdemeanor, the court may order the defendant to make restitution to a victim
of the crime. Ind. Code § 35-50-5-3 (2014). Damages may include “medical
and hospital costs incurred by the victim . . . as a result of the crime.” Id. A
restitution order is within the trial court’s discretion, and we review that portion
of a defendant’s sentence for an abuse of discretion. Mata v. State, 866 N.E.2d
346, 349 (Ind. Ct. App. 2007). An abuse of discretion occurs if the court’s
decision is clearly against the logic and effects of the facts and circumstances
before it. Bennett v. State, 862 N.E.2d 1281, 1286 (Ind. Ct. App. 2007).
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[13] Vena argues the trial court should not have ordered him to pay restitution
because Rohr was “the initial aggressor” in their struggle. Appellant’s Br. p. 9.
We disagree. Viewing the facts in the light most favorable to the judgment,
Vena started the fight. Thus, Vena caused Rohr’s injuries, and we find no
abuse of discretion in the trial court’s award of restitution.
[14] We note there is an inconsistency in the trial court’s orders regarding
restitution. At trial, the State submitted bills showing Rohr incurred $1,314 in
medical expenses due to the attack. The court stated, “I am going to order
restitution in the amount of $1,314 . . . .” Tr. Vol. 2, p. 44. In both the order
setting the terms of probation and in a docket entry, the court noted it ordered
restitution in the amount of $1,314. However, as the State concedes, the court’s
order of judgment and restitution directs Vena to pay “$1324.00.” Appellant’s
App. Vol. 2, p. 26. We conclude the reference to $1,324 is a scrivener’s error
and remand to the trial court to issue a corrected order of judgment and
restitution.
Conclusion
[15] For the reasons stated above, we affirm the judgment of the trial court but
remand with instructions to correct the order of restitution.
[16] Affirmed and remanded.
Bradford, J., and Brown, J., concur.
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