Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
Feb 28 2014, 8:30 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:
STEVEN KNECHT GREGORY F. ZOELLER
Vonderheide & Knecht, P.C. Attorney General of Indiana
Lafayette, Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
D.K., )
)
Appellant-Defendant, )
)
vs. ) No. 08A02-1308-JV-734
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE CARROLL SUPERIOR COURT
The Honorable Kurtis Fouts, Judge
Cause No. 08D01-1302-JD-6
February 28, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
FRIEDLANDER, Judge
Sixteen-year-old D.K. appeals a true finding that he committed an act that would
constitute the offense of Battery,1 a class A misdemeanor, if committed by an adult. D.K.
presents the following restated issue for review: Did the State present sufficient evidence to
rebut his claim of self-defense?
We affirm.
The facts favorable to the judgment are that on November 21, 2012, fourteen-year-old
D.J. was visiting at the house of two of his friends. D.K. and four friends were skateboarding
at a church across the street. At some point, D.J. and his friends went out of the house and
started shouting at D.K. and his friends, calling them “queers, fags, gay, whatever.”
Transcript at 60. A short time later, D.J. and his friends traveled to a nearby Citgo station to
get something to drink. When they reached a corner near the courthouse, D.J. saw D.K. and
his friends across the street. D.K. walked up to D.J. and his friends and told them to stop
calling them names. D.K. then returned to his friends and they left. D.J. and his friends went
to the Citgo station, where D.J. met his girlfriend. D.J. and his girlfriend stayed there, while
D.J.’s friends left. A short time later, D.J. and his girlfriend were talking in an alley near the
Citgo station, with D.J. straddling his bicycle and his girlfriend sitting nearby on the ground.
D.K. and his friends appeared in the alley and approached D.J. and his girlfriend. D.K.’s
friends sat and talked with D.J.’s girlfriend while D.K. walked up to D.J. and spoke with him
about the previous name-calling incidents. A less-than-friendly discussion ensued, during
which D.J. drew back his fist and told D.K. that if D.K. hit him, he would hit D.K. back. At
1
Ind. Code Ann. § 35-42-2-1 (West, Westlaw current through 2013 1st Reg. Sess. & 1st Reg. Technical Sess.).
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that point, D.K. struck D.J. on the left side of his face, knocking him to the ground and
rendering him unconscious. D.K. and his friends then left the scene. D.J. was unconscious
for approximately thirty seconds and his nose bled profusely. Subsequent examination
revealed that D.J. had suffered a fractured cheekbone on the left side of his face.
As a result of the incident, the State filed a petition alleging that D.K. was a
delinquent child because he committed an act that would constitute the offense of battery
resulting in serious bodily injury if it were committed by an adult. At the hearing, D.K.
admitted striking D.J., but claimed he did so in self-defense. The court entered a true finding
of juvenile delinquency and placed D.K. on unsupervised probation for 180 days.
D.K. contends the evidence was insufficient to rebut his claim of self-defense. The
standard for reviewing a challenge to the sufficiency of evidence to rebut a claim of self-
defense is the same standard used for any claim of insufficient evidence. Wallace v. State,
725 N.E.2d 837 (Ind. 2000). As in adult criminal cases, a true finding that a child committed
a delinquent act must be based upon proof beyond a reasonable doubt. Ind. Code Ann. § 31–
37–14–1 (West, Westlaw current through 2013 1st Reg. Sess. & 1st Reg. Technical Sess.).
We review sufficiency claims in this context utilizing the same standard employed in
challenges to the sufficiency of evidence supporting adult criminal convictions. See B.K.C.
v. State, 781 N.E.2d 1157 (Ind. Ct. App. 2003). Pursuant to that standard:
[w]hen reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Henley
v. State, 881 N.E.2d 639, 652 (Ind. 2008). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of
probative value such that a reasonable trier of fact could have concluded the
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defendant was guilty beyond a reasonable doubt. Id.
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
To prevail on a self-defense claim, D.K. 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. Wilson v. State, 770 N.E.2d 799
(Ind. 2002); see also Ind. Code Ann. § 35–41–3–2 (West, Westlaw current through 2013 1st
Reg. Sess. & 1st Reg. Technical Sess.). When a self-defense claim is raised and finds
support in the evidence, the State bears the burden of negating at least one of the necessary
elements. Wilson v. State, 770 N.E.2d 799. The State may meet its burden by offering
evidence directly rebutting the defense by affirmatively showing that the defendant did not
act in self-defense, or by simply relying upon the sufficiency of the evidence from its case-in-
chief. Miller v. State, 720 N.E.2d 696 (Ind. 1999). If a defendant is convicted, or, as in this
case, a true finding of juvenile delinquency is entered, despite the claim of self-defense, we
will reverse only if no reasonable person could say that self-defense was negated beyond a
reasonable doubt. Wilson v. State, 770 N.E.2d 799.
This incident was the culmination of a series of confrontations involving D.K. and
D.J. The State presented evidence that, with respect to the final confrontation, D.K. walked
up to within a foot of D.J. and initiated a discussion of the previous confrontations.
According to D.J.’s girlfriend, it was not a friendly conversation. Finally, at some point
during the conversation, D.J. “drew his hand back, like he was getting ready to hit” D.K. and
“threatened to hit [D.K.] if [D.K.] hit him.” Id. at 25. D.K. responded immediately by
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punching D.J. in the face with such force that he knocked D.J. out and broke his cheekbone.
Generally, a self-defense claim is not available to an initial aggressor. See I.C. § 35–
41–3–2(g)(3) (“a person is not justified in using force if: ... the person ... is the initial
aggressor”). Quite apart from the existence or reasonableness of D.K.’s belief that D.J. was
preparing to strike him, the evidence consistent with the true finding demonstrated that D.K.
initiated the final confrontation with D.J. by seeking him out in the alley, walking to within a
foot of D.J. while D.J. was astride his bicycle, and entering into a discussion with D.J. that
was less than pleasant. The foregoing evidence supports the conclusion that D.K. provoked
the confrontation that led to him striking D.J.
Moreover, in order to establish a claim of self-defense, D.K. was required to establish
that he struck D.J. because he reasonably believed it necessary to protect himself from D.J.’s
imminent use of unlawful force. See I.C. § 35-41-3-2(c). In evaluating D.K.’s claim of self-
defense, the juvenile court considered conflicting evidence on this point. D.J.’s girlfriend
testified that when D.J. drew his hand back, it was accompanied by a statement that he would
hit D.K. if D.K. hit him first. In recounting his version of the incident, D.K. made no
mention of the statement D.J.’s girlfriend attributed to D.J. when he drew his hand back.
Without this statement, D.K.’s claim of self-defense would be somewhat more compelling.
In evaluating the evidence, however, we are constrained by our standard of review to
consider only the evidence supporting the judgment, drawing all inferences in favor of the
judgment. See Bailey v. State, 907 N.E.2d 1003. The evidence consistent with this standard
did not establish that D.K. could reasonably have believed that D.J. threatened the imminent
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use of unlawful force at the time D.K. struck D.J. in the face.
In summary, viewing the evidence consistent with the true finding, we cannot
conclude that no reasonable person could say that D.K’s claim of self-defense was negated
beyond a reasonable doubt. See Wilson v. State, 770 N.E.2d 799.
Judgment affirmed.
KIRSCH, J., and BAILEY, J., concur.
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