Kip Hurt v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be Jan 25 2013, 9:41 am
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
KIP HURT, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1206-CR-286
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Viola Taliaferro, Judge
Cause No. 49F18-1106-FD-45739
January 25, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Following a bench trial, Kip Hurt was convicted of Battery1 as a class A
misdemeanor. Hurt appeals and argues that the State presented insufficient evidence to
support his conviction and to rebut his claim of defense of another person. We affirm.
On June 26, 2011, eighteen-year-old Sydney Guynn had some friends over to her
house to watch an awards show on television. At about 7:30 p.m., Guynn and two of her
friends decided to go to a store to pick up some snacks. As they approached Guynn’s car,
which was parked across the street from Hurt’s house, Hurt’s sixteen-year-old twin daughters
called out to Guynn. An argument ensued, and Guynn eventually got into the car to leave,
but was unable to pull away because the twins were blocking her way. Guynn then pulled the
car into her driveway and went back inside her house. She told her friends what was going
on and several of them went outside, where they confronted the twins on Guynn’s driveway.
At that point, Hurt became aware of the confrontation and exited his house, picking up
an aluminum softball bat as he went. Hurt approached Guynn while waving the bat back and
forth in front of him and told her to shut her mouth. Hurt then pointed the bat at Guynn’s
face and hit her in the mouth with it, and causing her lip to bleed. Guynn then ran back
inside to get her father, and the police were called. Officer Edward Ferrell of the
Indianapolis Metropolitan Police Department responded to the call. After conducting an
investigation and observing injuries to Guynn’s face, including a bloody and swollen lip,
Officer Ferrell arrested Hurt.
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Ind. Code Ann. § 35-42-2-1 (West, Westlaw current through 2012 2nd Reg. Sess.).
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As a result of these events, the State charged Hurt with class D felony criminal
recklessness and class A misdemeanor battery. Following a bench trial on May 7, 2012, Hurt
was acquitted of criminal recklessness and convicted of battery. Hurt now appeals.
Hurt argues that the State presented insufficient evidence to establish that he battered
Guynn. In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the
evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d 601 (Ind. Ct.
App. 2009). Instead, we consider only the evidence supporting the conviction and the
reasonable inferences to be drawn therefrom. Id. If there is substantial evidence of probative
value from which a reasonable trier of fact could have drawn the conclusion that the
defendant was guilty of the crime charged beyond a reasonable doubt, then the judgment will
not be disturbed. Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct. App. 2008). It is not
necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the
evidence is sufficient if an inference may reasonably be drawn from it to support the
conviction. Drane v. State, 867 N.E.2d 144 (Ind. 2007).
In order to convict Hurt of class A misdemeanor battery, the State was required to
prove that Hurt knowingly or intentionally touched Guynn in a rude, insolent, or angry
manner and that the touching resulted in bodily injury to Guynn. See I.C. § 35-42-2-1. In
support of his argument that the State presented insufficient evidence to support his
conviction, Hurt points to his own testimony that he did not hit anyone with the bat, as well
as the testimony of his wife and daughter that Guynn “walked into” the bat. Appellant’s
Brief at 6, 7.
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Hurt’s argument is without merit. Guynn testified that Hurt walked toward her
swinging the bat, cursed at her, told her to shut her mouth, and then hit her in the mouth with
the bat. Guynn testified further that the blow caused her mouth to bleed and damaged her
teeth seriously enough to require three trips to the dentist to repair. It is well settled that the
uncorroborated testimony of one witness, even if it is the victim, is sufficient to sustain a
conviction. Birari v. State, 968 N.E.2d 827 (Ind. Ct. App. 2012), trans. denied. Moreover,
Officer Ferrell and another responding officer testified that they observed the injuries to
Guynn’s face and photographs of those injuries were admitted into evidence at trial. This
evidence was more than sufficient to support Hurt’s conviction, and his arguments to the
contrary are nothing more than requests for this court to reweigh the evidence, judge the
credibility of witnesses, and consider conflicting evidence in a light unfavorable to the trial
court’s judgment, none of which we will do on appeal.
Hurt also argues that the State failed to rebut his claim that he acted in defense of his
daughters. “‘A valid claim of defense of oneself or another person is legal justification for an
otherwise criminal act.’” Simpson v. State, 915 N.E.2d 511, 514 (Ind. Ct. App. 2009)
(quoting Hobson v. State, 795 N.E.2d 1118, 1121 (Ind. Ct. App. 2003), trans. denied), trans.
denied; see also Ind. Code Ann. § 35-41-3-2(c) (West, Westlaw current through 2012 2nd
Reg. Sess.). To prevail on a claim of defense of another person, the defendant must 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. Simpson v. State, 915 N.E.2d 511. When a claim of defense of another person is
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raised and finds support in the evidence, the State bears the burden of negating at least one of
the necessary elements beyond a reasonable doubt. Id. We review challenges to the
sufficiency of the evidence to rebut a claim of defense of others under the same standard used
for any claim of insufficient evidence. Id.Once again, Hurt’s argument is simply a request for this court to consider conflicting
evidence in a light unfavorable to the conviction and judge the credibility of witnesses.
Specifically, Hurt points to defense witness testimony that two of Guynn’s companions were
armed, one with a knife and another with a gun. Guynn, however, testified that no one had a
gun or a knife, and Officer Ferrell testified that Hurt did not tell him that anyone had a
weapon. The evidence most favorable to the judgment reveals that Hurt’s daughters
participated willingly in the confrontation; indeed, one of Hurt’s daughters testified that she
intended to fight Guynn. Additionally, although Guynn and her friends were in the midst of a
heated verbal altercation with the twins, it is undisputed that no physical contact had
occurred. Even Hurt testified that no punches had been thrown. Moreover, Guynn testified
that Hurt walked toward her swinging the bat, cursed at her, told her to shut her mouth, and
then hit her in the mouth with the end of the bat. Under these facts and circumstances, it was
reasonable for the trial court to conclude that Hurt was the aggressor in the situation and did
not reasonably fear for his daughters’ safety. Accordingly, the State presented sufficient
evidence to rebut Hurt’s claim of defense of another person.
Judgment affirmed.
NAJAM, J., and BRADFORD, J., concur.
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