MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing FILED
the defense of res judicata, collateral
estoppel, or the law of the case. Sep 05 2017, 6:22 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jane H. Conley Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Angela Kinney, September 5, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1704-CR-726
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina R.
Appellee-Plaintiff. Klineman, Judge
Trial Court Cause No.
49G17-1701-F6-2268
Bradford, Judge.
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Case Summary
[1] Appellant-Defendant Angela Kinney and Michael Kinney were married and
are the parents of two children, C.K. and K.K. (collectively, “the Children”).
At some point, Kinney and Michael separated, after which Michael was
awarded custody of the Children. In January of 2017, Michael and the
Children resided with Michael’s mother, Carol Henderson.
[2] On January 16, 2017, Kinney went to Henderson’s residence and, while there,
engaged in a number of unlawful acts including punching and choking
Henderson and choking and biting Michael. Appellee-Plaintiff the State of
Indiana (“the State”) subsequently charged Kinney with Level 6 felony
domestic battery, two counts of Level 6 felony strangulation, Level 6 felony
battery against a public safety official, and two counts of Class A misdemeanor
battery resulting in bodily injury. Following a bench trial, Kinney was found
guilty as charged. The trial court subsequently merged one of the Class A
misdemeanor battery charges with the Level 6 felony domestic battery charge
and sentenced Kinney to an aggregate term of 365 days with credit for time
served and the remainder suspended to probation.
[3] On appeal, Kinney contends that the trial court abused its discretion by failing
to conduct a competency hearing prior to the start of trial. Kinney also
contends that the evidence is insufficient to sustain her conviction for Level 6
felony domestic battery. Concluding otherwise, we affirm.
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Facts and Procedural History
[4] Kinney and Michael were married and are the parents of the Children. At
some point, Kinney and Michael separated, after which Michael was awarded
custody of the Children. In January of 2017, Michael and the Children were
living with Henderson.
[5] On January 16, 2017, Kinney went to Henderson’s residence. When Kinney
arrived at the residence, the Children were both in K.K.’s bedroom. After
knocking on the front door, Kinney “barged in” the residence. Tr. Vol. II, p.
27. Kinney then attempted to go “back to [K.K.’s] bedroom.” Tr. Vol. II, p.
27. The situation turned violent after Michael requested that Kinney leave the
residence.
[6] While standing in the living room, Kinney indicated that she “wasn’t leaving
without her children and she was going to take them home.” Tr. Vol. II, p. 10.
Henderson positioned herself between Kinney and the Children and stated
“You’re not taking your children home. You lost that parental rights seven (7)
years ago” when Michael was awarded custody. Tr. Vol. II, p. 10. Kinney
then “punched [Henderson] in the eye and ran” back toward K.K.’s bedroom. 1
Tr. Vol. II, p. 10. Kinney ran back into K.K.’s bedroom and “slammed the
door.” Tr. Vol. II, p. 11.
1
As a result of being punched in the eye, Henderson suffered bruising and a cut that ran “from the center of
the eye all the way to the side of [her] brow.” Tr. Vol. II, p. 11.
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[7] Michael and Henderson followed Kinney to the bedroom. Kinney resisted their
attempts to enter the room. Eventually, Henderson and Michael were able to
open the door. Michael pushed Kinney away from the door and stated “You
don’t hit my mom.” Tr. Vol. II, p. 11. Henderson then indicated that she was
going to call the police, after which Kinney attacked her. Kinney “grabbed
[Henderson] by the throat with one (1) hand.” Tr. Vol. II, p. 12. Henderson
gagged and had difficulty breathing because Kinney was squeezing her neck.
Henderson later indicated that “it felt like [Kinney] was trying to rip my
esophagus off of me.” Tr. Vol. II, p. 12.
[8] Kinney next “went after” Michael. Tr. Vol. II, p. 13. Kinney “put her hands
around [Michael’s] neck and started choking [him].” Tr. Vol. II, p. 30.
Michael “couldn’t breathe” and “felt like [Kinney] was tearing [his] skin.” Tr.
Vol. II, p. 30. Kinney “had a hold of [Michael’s] neck while [they] were
standing for at least a minute.” Tr. Vol. II, p. 31. While squeezing Michael’s
neck, Kinney said, “Die, b[****], die.” Tr. Vol. II, p. 31. Eventually, Michael
was able to take Kinney to the ground. Once on the ground, Michael
attempted to restrain Kinney until police arrived. While on the ground, Kinney
“swung a few times” at Michael and bit his left shoulder. Tr. Vol. II, p. 31.
Kinney continued to struggle until responding officers arrived.
[9] When Indianapolis Metropolitan Police Officers Jason Hitchcock and Shane
Nicholsen arrived at Henderson’s home, they were met by Henderson who was
“seemed very upset.” Tr. Vol. II, pp. 47-48. Henderson “was crying and [ ]
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was screaming that she needed help and that [the officers] needed to hurry.”
Tr. Vol. II, p. 48.
[10] Upon entering the home, Officer Hitchcock observed
Ms. Kinney on the ground, uhm, screaming and there was, uhm,
blood all over her hands and then [Michael] was holding on to
her, uhm, trying to, uhm, I guess like contain her and, uhm, he
was saying that – he was yelling at us saying, “I need your help.
You need to come help me.”
Tr. Vol. II, p. 48. Kinney was “squirming, fighting, [and] screaming.” Tr. Vol.
II, p. 48. She was “very agitated, uhm, very belligerent. Uh, she – she was
speaking in tongues, saying that, uh, she was God and that, uhm, that we were
– meaning us as officers and the others in the room – we were all going to hell
and, uhm, that there was nothing that we could do, uhm, to her.” Tr. Vol. II,
p. 49. Kinney was “acting belligerent, yelling a lot of things that didn’t really
make sense.” Tr. Vol. II, p. 49.
[11] [A]s Officer Nicholsen was getting information from those that
were in the residence, uhm, Ms. Kinney was sitting down at the
time. She immediately stood up and started to state, uhm, yell at
[Henderson] and [Michael] that she was going to kill them and
was saying that she is God and that everybody was going to Hell.
Tr. Vol. II, p. 50. Officer Hitchcock then told her “Ma’am, you need to relax
and have a seat.” Tr. Vol. II, p. 50. Kinney ignored Officer Hitchcock’s
commands and “continued to yell and act belligerent, uhm, screaming
profanities.” Tr. Vol. II, p. 50. Officer Hitchcock “then told her, ‘Ms. Kinney,
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you need to sit down now.’” Tr. Vol. II, p. 50. At that point, Kinney
“immediately turned to [Officer Hitchcock], yelled profanities in [his] face and
then with her right leg kicked [Officer Hitchcock] in [his] right shin.” Tr. Vol.
II, p. 50. The kick to the shin caused Officer Hitchcock to suffer pain. After
Kinney kicked him, Officer Hitchcock “performed an IMPD-taught leg sweep”
and “took Ms. Kinney to the ground.” Tr. Vol. II, p. 51. Kinney was then
placed under arrest.
[12] The next day, the State charged Kinney with Level 6 felony domestic battery,
two counts of Level 6 felony strangulation, Level 6 felony battery against a
public safety official, and two counts of Class A misdemeanor battery resulting
in bodily injury. The matter proceeded to a bench trial on February 28, 2017.
Before the trial commenced, the State indicated that it had “concerns as to
competency, uh, given some of the statements that were made at the time of the
arrest.” Tr. Vol. II, p. 4. The State further indicated that its concerns had been
addressed with defense counsel. Defense counsel, however indicated that he
did not “have any concerns about Ms. Kinney’s competency.” Tr. Vol. II, p. 4.
Defense counsel further indicated that Kinney understood the nature of the
proceedings and had been able to assist in developing a defense. The trial court
stated that “given that [defense counsel] doesn’t seem to share [the State’s]
concerns and he’s the one in, uhm, contact with, uhm, Ms. Kinney, I’m, uhm,
going to proceed with trial.” Tr. Vol. II, pp. 5-6.
[13] Following the conclusion of trial, Kinney was found guilty as charged. The
trial court subsequently merged one of the Class A misdemeanor battery
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charges with the Level 6 felony domestic battery charge and sentenced Kinney
to an aggregate term of 365 days with credit for time served and the remainder
suspended to probation. This appeal follows.
Discussion and Decision
I. Competency Hearing
[14] Kinney first contends that the trial court abused its discretion by failing to
conduct a competency hearing prior to the start of trial. “The trial court must
hold a competency hearing when the court has reasonable grounds to believe
that defendant lacks the ability to understand the proceedings and assist in the
preparation of [her] defense.” Timmons v. State, 500 N.E.2d 1212, 1217 (Ind.
1986) (citing Ind. Code § 35-36-3-1).
However, the right to a hearing is not absolute. Goodman v. State
(1983), Ind., 453 N.E.2d 984, 985. A hearing is required by
statute and due process only when there is evidence before the
court that creates a reasonable doubt as to the defendant’s
competency. Pate v. Robinson (1966), 383 U.S. 375, 385, 86 S. Ct.
836, 842, 15 L. Ed. 2d 815; Perry v. State (1984), Ind., 471 N.E.2d
270, 273. Evidence sufficient to require a hearing must be
determined on the facts of each case, and the decision lies within
the province of the trial judge. Absent an abuse of discretion, the
trial court’s decision will not be disturbed. Perry, 471 N.E.2d at
273.
Fine v. State, 490 N.E.2d 305, 308 (Ind. 1986). “The tests for competence to
stand trial are whether the defendant has sufficient present ability to consult
with defense counsel with a reasonable degree of rational understanding and
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whether defendant has a rational as well as a factual understanding of the
proceedings against him.” Brown v. State, 485 N.E.2d 108, 110 (Ind. 1985)
(citing Dusky v. U.S., 362 U.S. 402 (1960); Johnson v. State, 262 Ind. 516, 520,
319 N.E.2d 126, 128 (1974)). In determining whether a competency hearing is
necessary, the trial court may “observe a defendant’s demeanor, including any
uncooperative behavior[.]” Timmons, 500 N.E.2d at 1217 (citing Brown, 485
N.E.2d at 110.
[15] On the morning of Kinney’s trial, the State indicated that it had concerns
regarding Kinney’s competency in light of her behavior in the days leading up
to and the time of the January 16, 2017 incident. In discussing the State’s
concern, the parties and the trial court engaged in the following exchange:
[The State]: Uh, yes, your Honor. I – the State would like
to put on the record that, uhm, that we have concerns as to
competency, uh, given some of the statements that were made at
the time of the arrest. Uhm, it has been addressed this with
Defense counsel.
[Trial Court]: Okay. [Defense Counsel]?
****
[Defense Counsel]: I – I don’t have any concerns about Ms.
Kinney’s competency. I know my colleague, Ms. Frick, went
and spoke with Ms. Kinney at the jail and there were some things
said but she did understand the – my job, the prosecutor’s job,
your job, everything that is – she understands the nature of
what’s going on, I guess, and she’s been able to assist me in – in
developing a defense.
[Trial Court]: Is the only basis for your concern the events
of the day in question?
[The State]: Uhm, our concern started two (2) weeks
before. Uh, she’s alleged to have, uh, told the family numerous
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times that she was God and Collin Kinney was Jesus. Uhm,
when the cops arrived, she’s alleged to have said the cops could
not do anything to her because she, uhm, will be going on an
island. Uh, this gives the State–
****
[Trial Court]: Okay. Uhm, well given that [Defense
Counsel] doesn’t seem to share those concerns and he’s the one
in, uhm, contact with, uhm, Ms. Kinney, I’m, uhm, going to
proceed with trial.
Tr. Vol. II, pp. 4-6.
[16] “Mental illness itself is not a unitary concept. It varies in degree. It can vary
over time. It interferes with an individual’s functioning at different times in
different ways.” Ind. v. Edwards, 554 U.S. 164, 175 (2008). As such, one who
suffers from mental illness may be competent to stand trial at times and
incompetent to stand trial at others. Again, the standard for deciding whether
one is competent to stand trial is whether the defendant, at the time of trial,
possesses the ability to consult rationally with counsel and factually
comprehend the proceedings against him or her. Brewer v. State, 646 N.E.2d
1382, 1384 (Ind. 1995) (citing Mato v. State, 429 N.E.2d 945, 946 (Ind. 1982)).
[17] The trial court noted the State’s concern about Kinney’s prior mental state but
found that, as of the morning of trial, Kinney was competent to stand trial.
However, Kinney’s counsel, who was in direct contact and discussions with
Kinney, explicitly stated that he did not share the State’s concerns. Specifically,
defense counsel noted that Kinney understood the proceedings against her and
was able to competently assist in her defense. Kinney, herself, seems to
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acknowledge that she was competent at the time of trial, noting that she was
capable of and in fact did testify “coherently” during trial. Appellant’s Br. p. 8.
The trial court was in the best position to judge Kinney’s then-mental state as it
could observe Kinney’s demeanor, statements, and behavior. Given the record
before us, we agree with the trial court’s assessment of Kinney’s mental state on
the morning of trial. We therefore conclude that the trial court did not abuse its
discretion by failing to conduct a competency hearing prior to the start of trial.
II. Sufficiency of the Evidence
[18] Kinney also contends that the evidence is insufficient to sustain her conviction
for Level 6 felony domestic battery.
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) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
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presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original). Upon review, appellate courts do not reweigh the evidence or assess
the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.
2002).
A. Whether the Evidence is Sufficient to Prove Kinney Acted
Knowingly
[19] “[A] person who knowingly or intentionally: (1) touches a family or household
member in a rude, insolent, or angry manner; or (2) in a rude, insolent, or angry
manner places any bodily fluid or waste on a family or household member;
commits domestic battery, a Class A misdemeanor.” Ind. Code § 35-42-2-
1.3(a). However, the offense is a Level 6 felony if “[t]he person who committed
the offense is at least eighteen (18) years of age and committed the offense
against a family or household member in the physical presence of a child less
than sixteen (16) years of age, knowing that the child was present and might be
able to see or hear the offense.” Ind. Code § 35-42-2-1.3(b)(2). “A person
engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware
of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). “A person
engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his
conscious objective to do so.” Ind. Code § 35-41-2-2(a).
[20] With respect to this charge, the charging information alleges that
On or about January 17, 2017 [Kinney], being at least eighteen
(18) years of age, did knowingly touch Michael Kinney, a family
or household member, in a rude, insolent, or angry manner by
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biting him, and [Kinney] committed said offense in the presence
of [C.K.], a child less than 16 years of age; and/or [K.K.], a child
less than 16 years of age; knowing that the child was present and
might be able to see or hear the offense.
Appellant’s App. Vol. II – Confidential, pp. 20-21. Thus, in order to prove that
Kinney committed the charged Level 6 felony domestic battery, the State was
required to prove that she knowingly touched Michael in a rude, insolent, or
angry manner in the presence of the Children, both of whom were under the
age of sixteen.
[21] The evidence most favorable to the trial court’s judgment court indicates that
on January 16, 2017, Kinney “barged” into Henderson’s residence, where
Michael and the Children were staying. Tr. Vol. II, p. 27. Kinney subsequently
punched and choked Henderson. She also choked Michael. In order to stop
Kinney from choking anyone in the residence, Michael pushed Kinney to the
ground and restrained her until police arrived. While on the ground, Kinney
“swung a few times” at Michael and bit his left shoulder. Tr. Vol. II, p. 31.
Kinney continued to struggle until after she was subdued by responding
officers. The Children were present in the home when Kinney attacked
Michael.
[22] One may reasonably infer from the above-discussed evidence that Kinney acted
knowingly when she attacked Michael. As such, we conclude that the evidence
is sufficient to sustain Kinney’s conviction for Level 6 felony domestic battery.
Kinney’s claim to the contrary amounts to nothing more than an invitation for
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this court to reweigh the evidence, which we will not do. See Stewart, 768
N.E.2d at 435.
B. Whether the Evidence was Sufficient to Rebut Kinney’s
Claim of Self-Defense
[23] Furthermore, to the extent that Kinney argues that the evidence is insufficient
to rebut her claim of self-defense, we conclude otherwise. “The standard of
review for a challenge to the sufficiency of evidence to rebut a claim of self-
defense is the same as the standard for any sufficiency of the evidence claim.”
Kimbrough v. State, 911 N.E.2d 621, 635 (Ind. Ct. App. 2009) (citing Wilson v.
State, 770 N.E.2d 799, 801 (Ind. 2002)). “We neither reweigh the evidence nor
judge the credibility of witnesses. Wallace v. State, 725 N.E.2d 837, 840 (Ind.
2000). “If there is sufficient evidence of probative value to support the
conclusion of the trier of fact, then the verdict will not be disturbed.” Id. “If a
defendant is convicted despite his claim of self-defense, this Court will reverse
only if no reasonable person could say that self-defense was negated by the
State beyond a reasonable doubt.” Kimbrough, 911 N.E.2d at 635 (citing Wilson
at 800-01).
[24] 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 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. Ind. Code § 35-41-3-2. In order to prevail on
such a claim, the defendant must show that [s]he: (1) was in a
place where [s]he had a right to be; (2) did not provoke, instigate,
or participate willingly in the violence; and (3) had a reasonable
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fear of death or great bodily harm. Wilson, 770 N.E.2d at 800.
An initial aggressor or a mutual combatant, whether or not the
initial aggressor, must withdraw from the encounter and
communicate the intent to do so to the other person, before [s]he
may claim self-defense. 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. Id. The State
can rebut the defendant’s claim of self-defense by relying on the
evidence of its case-in-chief. Carroll v. State, 744 N.E.2d 432, 433
(Ind. 2001).
Id.
[25] The evidence presented during trial demonstrates that at the time of Kinney’s
attack on Michael, Kinney was not in a place where she had a right to be. Both
Henderson and Michael testified that Kinney “barged in” to Henderson’s
residence. Tr. Vol. II, pp. 9, 27. Neither Henderson nor Michael had invited
Kinney into the residence. Moreover, Kinney refused to leave the residence
after being instructed to do so. These facts negate Kinney’s self-defense claim.2
See generally, Dixson v. State, 22 N.E.3d 836, 840 (Ind. Ct. App. 2014) (providing
that the fact that the defendant did not have a right to be in the cafeteria in
question when the incident occurred negated defendant’s self-defense claim).
As was the case above, Kinney’s assertion that the State failed to rebut her
2
Kinney’s self-defense claim is also rebutted by the evidence demonstrating that Kinney was the initial
aggressor as she punched and choked Henderson before Michael used any force to attempt to restrain
Kinney.
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claim of self-defense amounts to nothing more than an invitation for this court
to reweigh the evidence, which we will not do. See Wallace, 725 N.E.2d at 840.
Conclusion
[26] In sum, we conclude that (1) the trial court did not abuse its discretion by
failing to order a competency hearing prior to the start of trial, and (2) the
evidence is sufficient to sustain Kinney’s conviction for Level 6 felony domestic
battery.
[27] The judgment of the trial court is affirmed.
May, J., and Barnes, J., concur.
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