Opinion
23A-CR-563
08-23-2023
William E. Evans, Jr., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Timothy J. Burns Indianapolis, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Kathy Bradley Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Marion Superior Court The Honorable Jose Salinas, Judge Trial Court Cause No. 49D23-2110-CM-32822
ATTORNEY FOR APPELLANT
Timothy J. Burns
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Kathy Bradley
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Riley, Judge.
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, William Evans, Jr. (Evans), appeals his conviction for battery, a Class B misdemeanor, Ind. Code § 35-42-2-1(c)(1).
[¶2] We affirm.
ISSUE
[¶3] Evans presents this court with one issue, which we restate as: Whether the State disproved beyond a reasonable doubt that Evans acted in self-defense.
FACTS AND PROCEDURAL HISTORY
[¶4] The evidence most favorable to the judgment is that around 1:00 p.m. on October 25, 2021, Evans was driving a van in a shopping plaza parking lot in Speedway, Indiana, with his seventeen-year-old grandson, Jacob, in the passenger seat. Evans drove up behind the truck of Roy Taylor (Taylor), who was stopped in the traveling lane of the parking lot. Evans honked his horn two or three times and then pulled around Taylor and quickly parked close by in front of a cell phone store.
[¶5] Taylor pulled over and parked his truck close to Evans' van. Taylor got out of his truck and approached the passenger window of Evans' van, whereupon Jacob told him to back up and called Taylor a racial slur. Taylor started to back away. By that time, Evans had exited the van and approached Taylor. Evans pushed Taylor in the chest. Jacob, who had also exited the van, then punched Taylor in the nose. Taylor grabbed Evans and attempted to use him as a shield to ward off further blows from Jacob. Taylor fell to the ground with Evans on top of him and hit his head on the pavement. An employee at the cell phone store, Brandi Crew (Crew), and another bystander intervened and broke up the fight. Evans and Jacob quickly returned to the van and drove away, hitting another parked car in the parking lot in the process. Crew called 9-1-1.
[¶6] On October 25, 2021, the State filed an Information, charging Evans with Class B misdemeanor battery. On January 10, 2023, the trial court convened Evans' bench trial. Taylor testified in line with the aforementioned facts. Taylor characterized Evans' demeanor throughout the encounter as "angry". (Transcript p. 70). According to Evans, who also testified at trial, he had acted in self-defense because Taylor had initiated the physical contact by bumping him with his chest and head when Evans was trying to walk around Taylor. Evans claimed that after being chest and head bumped by Taylor, Evans shoved Taylor and attempted to walk around Taylor again, whereupon Taylor threw a punch at Evans. In Evans' version of events, Jacob then jumped into the fray, and Jacob and Taylor fought until being separated by Crew.
[¶7] At the close of the evidence, the trial court found that Evans was guilty of Class B misdemeanor battery. On February 21, 2023, the trial court sentenced Evans to 180 days, with four days of credit for time served and the remaining 176 days suspended with no probation.
[¶8] Evans now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
[¶9] Evans argues that the State did not sufficiently rebut his claim of self-defense. We review such claims using the same standard of review applied to other claims of insufficient evidence. Hughes v. State, 153 N.E.3d 354, 361 (Ind.Ct.App. 2020), trans. denied. We do not reweigh the evidence or assess the credibility of the witnesses. Id. In addition, in conducting our review, we consider only the evidence most favorable to the judgment. Wolf v. State, 76 N.E.3d 911, 916 (Ind.Ct.App. 2017).
[¶10] "A defendant can raise self-defense as a justification for an otherwise criminal act." Larkin v. State, 173 N.E.3d 662, 670 (Ind. 2021) (citing I.C. § 35-41-3-2). Under Indiana's self-defense statute,
[a] person is justified in using reasonable force against any other person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force.I.C. § 35-41-3-2(c). In order to prevail on a claim of self-defense, a defendant must show that he "(1) was in a place where he had a right to be; (2) acted without fault; and (3) was in reasonable fear or apprehension of bodily harm." Richardson v. State, 79 N.E.3d 958, 964 (Ind.Ct.App. 2017), trans. denied. A person is not "without fault" for purposes of the self-defense statute if he provokes, instigates, or participates willingly in the violence. Id. Rather, the initial aggressor in a fight may only claim self-defense if "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." I.C. § 35-41-3-2(g)(3).
[¶11] Once a defendant claims self-defense, the State has the burden of disproving beyond a reasonable doubt at least one of the elements, and the State may do so by "'rebutting the defense directly, by affirmatively showing that the defendant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief.'" Brown v. State, 738 N.E.2d 271, 273 (Ind. 2000) (quoting Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999)). This court will affirm the defendant's conviction "if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt." Id.
[¶12] The State charged Evans with battery in relevant part as follows:
On or about October 25, 2021, [Evans] did knowingly touch [] Taylor in a rude, insolent, or angry manner by shoving him[.]
(Appellant's App. Vol. II, p. 20). Taylor testified at trial that Evans instigated the violence on October 25, 2021, by angrily shoving him, precipitating the additional violence that followed. The act of pushing or shoving another person is a touch which may support a conviction for Class B misdemeanor battery. See, e.g., Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009) (holding that evidence that a student pushed past a teacher's extended arm was sufficient to sustain his conviction for Class B misdemeanor battery). Evans could not claim self-defense because the evidence most favorable to the judgment shows that he was the initial aggressor and that he made no attempt to withdraw. See Wolf, 76 N.E.3d at 916 (rejecting Wolf's sufficiency argument based on his version of events which contradicted other evidence supportive of his conviction and observing that "[w]hen the facts are viewed in accordance with the standard of review, Wolf cannot claim self-defense because he initiated the violence"). Thus, the State presented sufficient evidence to support Evans' conviction and to rebut his claim of self-defense.
[¶13] On appeal, Evans argues that his conviction must be reversed because "[h]e acted in self-defense to being attacked by [] Taylor who stepped out of his vehicle and initiated physical contact on [Evans]." (Appellant's Br. p. 8). In support of this argument, Evans relies on his own trial testimony that Taylor had chest and head butted him before Evans pushed Taylor, a version of events that contradicted Taylor's regarding who initiated the violence that day. "The trier of fact is entitled to determine which version of the incident to credit." Wolf, 76 N.E.3d at 916 (quoting Scott v. State, 867 N.E.2d 690, 695 (Ind.Ct.App. 2007), trans. denied). Evans requests that we reassess Taylor's credibility and reweigh the evidence by crediting Evans' own version of events over Taylor's. This is contrary to our standard of review. See Hughes, 153 N.E.3d at 361 (observing that when reviewing the evidence supporting a claim of selfdefense, "[w]e neither reweigh the evidence nor judge the credibility of witnesses").
CONCLUSION
[¶14] Based on the foregoing, we hold that the State disproved Evans' claim of selfdefense beyond a reasonable doubt.
[¶15] Affirmed.
[¶16] Bradford, J. and Weissmann, J. concur.