MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), this Nov 14 2018, 7:26 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the CLERK
Indiana Supreme Court
purpose of establishing the defense of res judicata, Court of Appeals
and Tax Court
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Matthew B. MacKenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Richard E. Carter, November 14, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1074
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Hon. Jenny Pitts Manier,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D05-1706-CM-2784
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1074 | November 14, 2018 Page 1 of 5
Case Summary
[1] In June of 2017, Richard Carter (“Carter”) and his wife Pamela attended a
neighborhood barbeque, during which Pamela and Carter consumed alcohol
and argued. Later, the argument became a physical altercation when Carter
punched Pamela with a closed fist and “stomped” on her. The State charged
Carter with Class A misdemeanor domestic battery and a jury found him guilty
as charged. Carter contends that the State failed to present evidence sufficient
to rebut his claim that he had acted in self-defense. Because we disagree, we
affirm.
Facts and Procedural History
[2] On June 25, 2017, Pamela, her son Alvin Avance, and Carter attended a
neighborhood barbeque in South Bend, during which Pamela and Carter
consumed alcohol and argued. Avance took his daughter and left, and,
approximately one hour later, a friend told Avance that he should check on
Pamela at her home. Avance found Pamela on her bed, asking for help, and on
the telephone, having called 911. Avance noticed that both of Pamela’s eyes
appeared to have been hit (with one almost swollen shut) and that she was
disoriented and had trouble standing on her own. Pamela told Avance, “He
hurt me, he hurt me, he hurt me.” Tr. Vol. II p. 39.
[3] South Bend Police Officer Matthew Ryan responded to Pamela’s 911 call and
arrived with Pamela still on the line. Officer Ryan arrived to find Carter,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1074 | November 14, 2018 Page 2 of 5
Pamela, and Avance in the home and noticed that Pamela’s left eye was almost
swollen shut. When asked what had happened, Pamela explained to Officer
Ryan that she began arguing with Carter when she returned from a store,
apparently for failing to purchase him some cigarettes. The argument escalated,
and Carter struck her in the face with a closed fist. Pamela fell to the ground,
and Carter began “stomping” on her. Tr. Vol. II p. 72. At some point after
Carter punched her, Pamela managed to scratch him on the face.
[4] On June 29, 2017, the State charged Carter with domestic battery. On March
2, 2018, a jury found Carter guilty as charged, and, on March 28, 2018, the trial
court sentenced him to 3551 days of incarceration.
Discussion and Decision
[5] To convict Carter of domestic battery, the State was required to prove that he
knowingly touched Pamela, a family or household member, in a rude, insolent,
or angry manner. Ind. Code § 35-42-2-1.3(a)(1). Carter does not deny striking
Pamela but contends that the State failed to rebut his claim that he acted in self-
defense:
When a defendant challenges the State’s sufficiency of the
evidence to rebut a claim of self-defense, the standard of review
remains the same as for any sufficiency of the evidence claim.
We neither reweigh the evidence nor assess the credibility of
1
The trial court indicated at Carter’s sentencing hearing that his sentence was to be 365 days of
incarceration, (Tr. Vol. II 159, 160), but the trial court’s “Judgment Order” indicates that the sentence is 355
days. The State seems to concede that Carter’s sentence is 355 days. (Appellee’s Br. 4).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1074 | November 14, 2018 Page 3 of 5
witnesses but look solely to the evidence most favorable to the
judgment with all reasonable inferences to be drawn therefrom.
We will affirm a conviction where such evidence and reasonable
inferences constitute substantial evidence of probative value
sufficient to support the judgment.
Self-defense is recognized as a valid justification for an otherwise
criminal act. When raised, a defendant must establish that he or
she was in a place where he or she had the right to be, acted
without fault, and was in reasonable fear or apprehension of
death or great bodily harm. Once a defendant claims self-
defense, the State bears the burden of disproving at least one of
these elements beyond a reasonable doubt for the defendant’s
claim to fail. The State may meet this burden by rebutting the
defense directly, by affirmatively showing the defendant did not
act in self-defense, or by simply relying upon the sufficiency of its
evidence in chief. Whether the State has met its burden is a
question of fact for the jury.
Miller v. State, 720 N.E.2d 696, 699–700 (Ind. 1999) (citations omitted).
[6] Carter contends that he was without fault and struck Pamela out of reasonable
fear for his safety. Officer Ryan, however, testified that Pamela told him that
Carter was the initial aggressor and that she had scratched Carter only after he
had punched her in the face with a closed fist and “stomped” on her. The jury
was entitled to believe this evidence and conclude that Carter was the initial
aggressor, and “[s]elf-defense […] is unavailable to a defendant who is the
initial aggressor[.]”2 Id. at 700. Carter points to his testimony that Pamela “got
2
Indiana Code section 35-41-3-2(g) provides a limited exception to this general rule, namely, that “a person
is not justified in using force if [the person is] the initial aggressor unless 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.” Carter does not claim, much less establish, that the
altercation in this case fits within this scenario.
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in [his] face[,] kind of went off on [him, and] scratched [him] in [his] face”
before he used any force against her. Tr. Vol. II pp. 90, 92. The jury, however,
was not required to credit this testimony and did not. Carter’s argument is
nothing more than an invitation to reweigh the evidence, which we will not do.
Miller, 720 N.E.2d at 699.
[7] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
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