MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Feb 14 2017, 10:40 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Amy D. Griner Curtis T. Hill, Jr.
Mishawaka, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Billy E. Oliver, February 14, 2017
Appellant-Defendant, Court of Appeals Case No.
20A03-1606-CR-1519
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Plaintiff. Shewmaker, Judge
Trial Court Cause No.
20C01-1603-CM-390
Bradford, Judge.
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Case Summary
[1] On the morning of February 27, 2016, Appellant-Defendant Billy E. Oliver
became engaged in a domestic dispute with his then-girlfriend Jeanette Gordon.
During this dispute, Gordon suffered a severe black eye after being pushed
against a wall, knocked to the ground, and repeatedly hit by Oliver. Oliver was
subsequently charged with domestic battery. Following a bench trial, the trial
court found Oliver guilty as charged and sentenced him to 180 days in jail.
[2] On appeal, Oliver contends that the trial court abused its discretion excluding
certain proffered evidence at trial. Oliver also contends that his sentence is
inappropriate in light of the nature of his offense and his character. We affirm.
Facts and Procedural History
[3] In February of 2015, Gordon and Oliver were involved in a romantic
relationship when they decided to move in together. Approximately one year
later, on the morning of February 27, 2016, Oliver decided to move out of the
couple’s shared apartment. Oliver began to move belongings that he intended
to take with him to an area near the backdoor of the apartment.
[4] While Gordon was assisting Oliver in moving belongings to the backdoor area,
a dispute broke out regarding ownership of a television that Oliver intended to
take with him. Claiming that the television belonged to her, Gordon attempted
to grab the television. In response, Oliver pushed Gordon against a wall,
knocking her to the ground. Oliver then climbed on top of Gordon and began
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repeatedly “hitting [her] with his fist in [her] temple area.” Tr. p. 27. As a
result of Oliver’s actions, Gordon suffered “a severe black eye.” Tr. p. 29.
[5] At some point, police were dispatched to the scene of the altercation. Upon
arriving at the scene, Elkhart City Police Officer Corporal Jason Tripp observed
that Gordon was “holding her face” and “appeared to be in pain.” Tr. p. 11.
Corporal Tripp described Gordon a being “hysterical.” Tr. p. 11. Corporal
Tripp observed that Gordon “had injuries, she had swelling of her left eye, she
had a mark above her left eye, and there was blood on her shirt.” Tr. p. 11.
[6] On May 1, 2016, Appellee-Plaintiff the State of Indiana (“the State”) charged
Oliver with Class A misdemeanor domestic battery. Following a bench trial,
Oliver was found guilty as charged. He was subsequently sentenced to a 180-
day term of imprisonment. This appeal follows.
Discussion and Decision
I. Admission of Evidence
[7] Oliver contends that the trial court abused its discretion in excluding certain
proffered evidence at trial.
The admission or exclusion of evidence is entrusted to the
discretion of the trial court. Farris v. State, 818 N.E.2d 63, 67
(Ind. Ct. App. 2004). We will reverse a trial court’s decision only
for an abuse of discretion. Id. We will consider the conflicting
evidence most favorable to the trial court’s ruling and any
uncontested evidence favorable to the defendant. Taylor v. State,
891 N.E.2d 155, 158 (Ind. Ct. App. 2008). An abuse of
discretion occurs when the trial court’s decision is clearly against
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the logic and effect of the facts and circumstances before the
court or it misinterprets the law. Id. In determining whether an
error in the introduction of evidence affected an appellant’s
substantial rights, we assess the probable impact of the evidence
on the jury. Oldham v. State, 779 N.E.2d 1162, 1170 (Ind. Ct.
App. 2002). Admission of evidence is harmless and is not
grounds for reversal where the evidence is merely cumulative of
other evidence admitted. Pavey v. State, 764 N.E.2d 692, 703
(Ind. Ct. App. 2002).
Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012). “Moreover, the trial
court’s ruling will be upheld if it is sustainable on any legal theory supported by
the record, even if the trial court did not use that theory.” Rush v. State, 881
N.E.2d 46, 50 (Ind. Ct. App. 2008) (citing Gonser v. State, 843 N.E.2d 947, 950
(Ind. Ct. App. 2006)).
[8] On appeal, Oliver argues that the trial court abused its discretion in excluding
evidence relating to (1) prior bad acts allegedly committed by Gordon and (2)
Gordon’s mental state. Specifically, Oliver asserts that such evidence was
relevant to his claim of self-defense. We must note, however, that we are
perplexed by Oliver’s assertion in this regard on appeal because review of the
record reveals that Oliver did not raise a claim of self-defense at trial. In fact, if
he had, such a claim would have been inconsistent with his claim that he did
not touch or hit Gordon.
[9] “Self-defense is recognized as a valid justification for an otherwise criminal
act.” Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999) (citing Ind. Code § 35-41-
3-2).
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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. See Brooks v. State, 683 N.E.2d 574, 577 (Ind. 1997); Lilly v.
State, 506 N.E.2d 23, 24 (Ind. 1987). 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. [Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999)];
Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997). 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.
Lilly, 506 N.E.2d at 24; Davis v. State, 456 N.E.2d 405, 408 (Ind.
1983).
Id. at 699-700. Self-defense is an affirmative defense which cannot be raised for
the first time on appeal. See Lafary v. Lafary, 476 N.E.2d 155, 159 (Ind. Ct. App.
1985) (providing that affirmative defenses must be raised at trial and cannot be
raised for the first time on appeal).
[10] In order to have raised a self-defense claim at trial, Oliver would have had to
have acknowledged that he struck Gordon but argued that he was justified in
doing so because he was in a place where he had a right to be, acted without
fault, and was in reasonable fear or apprehension of death or serious bodily
harm. Oliver made no such acknowledgements or arguments at trial. Instead,
the record reveals that Oliver consistently stated that he did not touch or strike
Gordon. Given that Oliver did not raise a self-defense claim at trial, he has
waived such a claim on appeal. See id.
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II. Appropriateness of Sentence
[11] Oliver also contends that his 180-day sentence is inappropriate. In challenging
the appropriateness of his sentence, Oliver asserts that his sentence is
inappropriate because “the nature of the offense involved a mutual altercation”
between the parties. Appellant’s Br. p. 11. While it may be true that both
parties bore some responsibility in the underlying dispute, we do not agree that
such a fact, alone, renders Oliver’s 180-day sentence inappropriate.
[12] Indiana Appellate Rule 7(B) provides that “The Court may revise a sentence
authorized by statute if, after due consideration of the trial court’s decision, the
Court finds that the sentence is inappropriate in light of the nature of the offense
and the character of the offender.” In analyzing such claims, we “‘concentrate
less on comparing the facts of [the case at issue] to others, whether real or
hypothetical, and more on focusing on the nature, extent, and depravity of the
offense for which the defendant is being sentenced, and what it reveals about
the defendant’s character.’” Paul v. State, 888 N.E.2d 818, 825 (Ind. Ct. App.
2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct. App. 2002), trans.
denied). The defendant bears the burden of persuading us that his sentence is
inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).
[13] With respect to the nature of Oliver’s offense, the record reveals that Oliver
struck his then-girlfriend, Gordon, with sufficient force to cause significant
bruising to Gordon’s eye. The altercation began when Oliver attempted to
move property allegedly belonging to Gordon, i.e., a television, out of her
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residence without her permission.1 During the altercation, Gordon suffered a
severe black eye after being pushed against a wall, knocked to the ground, and
repeatedly hit by Oliver. Oliver attempts to minimize the serious nature of his
offense on appeal by claiming that the parties engaged in a mutual altercation
that resulted in injury to both he and Gordon. Such a claim, however, is
inconsistent with Oliver’s trial testimony that he never struck or hit Gordon.
[14] As for Oliver’s character, the record reveals that Oliver has a significant
criminal history that includes both misdemeanor and felony convictions as well
as numerous prior probation violations. Oliver’s criminal history includes
misdemeanor convictions for possession of marijuana, operating a vehicle
without proof of financial responsibility, common nuisance, failure to appear,
improper use of an interim license plate, and five counts of check deception.
Oliver’s criminal history also includes convictions for Class A felony delivery of
methamphetamine in excess of three grams and Class D felony domestic
battery–committed in the presence of a child less than sixteen years old. In
addition, the record reveals that Oliver has violated the terms of his probation
of numerous occasions. In fact, the record reveals that Oliver was on probation
at the time of the February 27, 2016 altercation and that he violated the terms of
his probation by committing the instant offense.
1
It is unclear to whom the television actually belonged with both Oliver and Gordon claiming that the
television in question belonged to them.
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[15] Oliver’s criminal history indicates that he has a disdain not only for the criminal
justice system, but also for the rights and safety of others. Moreover, the
Elkhart County Probation Department indicated that a risk assessment of
Oliver placed him “in the MODERATE risk category to re-offend.”
Appellant’s App. Vol. II Confidential, p. 40. Upon review, we conclude that
Oliver has failed to prove that his sentence is inappropriate in light of the nature
of his offense and his character.
Conclusion
[16] In sum, we conclude that (1) the trial court acted within its discretion in
excluding certain evidence proffered evidence from trial and (2) Oliver has
failed to prove that his 180-day sentence is inappropriate in light of the nature of
his offense and his character.
[17] The judgment of the trial court is affirmed.
Vaidik, C.J., and Brown, J., concur.
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Billy E. Oliver v. State of Indiana (mem. dec.)
Combined Opinion