Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jul 08 2013, 10:06 am
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
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TERRENCE BOYD, )
)
Appellant-Defendant, )
)
vs. ) No. 49A05-1210-CR-498
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Rebekah Pierson-Treacy, Judge
Cause No. 49F19-1205-CM-33582
July 8, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Terrence Boyd (“Boyd”) appeals his conviction, after a bench trial, for battery as a
Class B misdemeanor.1
We affirm.
ISSUE
Whether the evidence is sufficient to sustain Boyd’s conviction for battery.
FACTS
On May 19, 2012, Boyd, his mother, Carolyn Inman (“Inman”), and his cousin
Natasha Capler (“Capler”), were at the Nails 4 U Salon in Indianapolis. Xiep Van Tien
(“Xiep”) and his son, Phi Thai Tien (“Phi”), were working at the salon that day. Inman
received a manicure, and Boyd requested a manicure from Phi. Phi informed Boyd that
he did not provide manicures to men. At some point, Inman became upset and began to
yell, causing Xiep to approach Inman. Xiep put his hands up in front of Inman and asked
her to calm down. Inman refused and kept yelling. Boyd stepped between Xiep and
Inman and pushed Xiep. Xiep testified that he fell and scraped his wrist because of Boyd
pushing him.
On May 22, 2012, the State charged Boyd with Class A misdemeanor battery.
The trial court conducted a bench trial on October 4, 2012. At the trial, Boyd testified
that he was trying to diffuse the situation between Xiep and Inman and that if he did
touch Xiep, it was not intentional. Teresa Lebeau (“Lebeau”) was also in the shop and
witnessed the incident. She testified that Xiep was trying to calm Inman down. Lebeau
1
Ind. Code § 35-42-2-1.
2
further testified that Boyd reached out and “made contact” with Xiep and that Boyd
appeared to be upset when he did it. (Tr. 44-45). The trial court found Boyd guilty of
battery as a Class B misdemeanor and sentenced him to four (4) days in jail.2
DECISION
Boyd argues that the evidence was insufficient to sustain his conviction for Class
B misdemeanor battery. Specifically, Boyd claims that there is no evidence that a
touching occurred, and, in the alternative, any touching that occurred was justified in the
defense of Inman.3
When reviewing the sufficiency of the evidence to support a conviction,
appellate courts must consider only the probative evidence and reasonable
inferences supporting the verdict. It is the fact-finder’s role, not that of
appellate courts, to assess witness credibility and weigh the evidence to
determine whether it is sufficient to support a conviction. To preserve this
structure, when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling. Appellate
courts affirm the conviction unless no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. It is therefore not
necessary that the evidence overcome every reasonable hypothesis of
innocence. The evidence is sufficient if an inference may reasonably be
drawn from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks and
citations omitted).
The trial court convicted Boyd of battery as a Class B misdemeanor. Thus, the
State’s evidence had to show that Boyd knowingly or intentionally touched Xiep in a
rude, insolent, or angry manner. Ind. Code §35-42-2-1. “A person engages in conduct
2
Despite Xiep’s testimony, the trial court, with no further explanation, found Boyd guilty of the lesser
included Class B misdemeanor battery without injury.
3
Boyd also claims that if any touching occurred, it was inadvertent. However, because Boyd chose to
press a claim of self-defense, his claim of inadvertency has no merit.
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‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he
is doing so.” I.C. § 35-41-2-2(b). “Any touching, however slight, may constitute
battery.” Impson v. State, 721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000). Here, Xiep
clearly testified that Boyd pushed him, and Lebeau testified that Boyd “made contact”
with Xiep. (Tr. 44-45). In addition, there was testimony that Boyd was angry at the time.
As a result, this evidence was sufficient for the trial court to infer that a battery occurred.
As to Boyd’s claim of defense of another, “a valid claim of defense of oneself or
another is legal justification for an otherwise criminal act.” Hobson v. State, 795 N.E.2d
1118, 1121 (Ind. Ct. App. 2003), trans. denied. Indiana Code § 35-41-3-2(a) provides
that “[a] person is justified in using reasonable force against another person to protect the
person or a third person from what the person reasonably believes to be the imminent use
of unlawful force.” “Reasonably believes,” as used in Indiana Code § 35-41-3-2,
“requires both subjective belief that force was necessary to prevent serious bodily injury,
and that such actual belief was one that a reasonable person would have under the
circumstances.” Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007).
When waving his hands in front of her face, Xiep meant to calm Inman down, not
injure her. Lebeau testified, in her opinion, that Xiep appeared to be trying to “diffuse
the situation.” (Tr. 42). Given the circumstances, we cannot say that it was reasonable
for Boyd to believe that unlawful force or serious bodily injury were imminent.
Accordingly, we affirm Boyd’s conviction for battery.
Affirmed.
KIRSCH, J., and VAIDIK, J., concur.
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