MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 29 2017, 8:39 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas P. Keller Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Andrew Swank, March 29, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1606-CR-1395
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Miller, Judge
Appellee-Plaintiff Trial Court Cause No.
71D01-1509-F3-47
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017 Page 1 of 7
[1] Andrew Swank (“Swank”) challenges his conviction of Level 3 felony
aggravated battery 1 for shooting his uncle in the stomach. He asserts the State
failed to rebut his claim of self-defense. We affirm.
Facts and Procedural History
[2] In the early morning hours of September 22, 2015, Swank got in to a heated
argument with his uncle, Donald Swank (“Donald”). Donald was almost back
to his house, where Swank was waiting for him, when Donald received a call
from Swank, who was “[i]rate” and worried about his clothes, which were in
the van Donald was driving to buy crack cocaine. (Tr. at 29.) He told Donald,
“I’m going to shoot you, if my F-ing clothes are gone.” (Id. at 77.) Donald and
Swank yelled at one another on the telephone until Donald pulled the van into
the driveway.
[3] Upon his arrival, Donald quickly exited the van and ran in the front door of the
house to confront Swank. Donald ran up to Swank, who was seated in a chair
in the back room, and told him to get out of the house. Swank pulled a .22
caliber pistol out of his waistband and pointed it at Donald. Donald told
Swank he had something for him, and Donald left the room to get an
aluminum baseball bat. Donald then stood in the kitchen, screaming for Swank
to “get the fuck out,” (id. at 234), and beating the stove with the baseball bat.
1
Ind. Code § 35-42-2-1.5 (2014).
Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017 Page 2 of 7
[4] Erik Swank (“Erik”), Swank’s father and Donald’s brother, stepped between the
two fighting men, asked them both to calm down, and told Swank to leave via
the back door of the house to avoid walking past Donald. Swank put on his
shoes, grabbed his backpack, and walked out the back door. Thirty seconds to
a minute later, when Donald had not heard the van leave to take Swank away
from the house, Donald dropped the bat in the kitchen and walked out the front
door.
[5] From the porch, which was on the driver’s side of the van, Donald again yelled
for Swank to leave. Swank was on the passenger side of the van and had the
front passenger door open. Swank stepped up on the floorboard of the van,
leaned over the front of the windshield of the van, and pointed his gun at
Donald. Swank told Donald to go back in the house and announced he was
going to shoot Donald, but Donald did not retreat into the house. Swank fired
a shot that hit Donald in the stomach. Swank then fled the scene, and Donald
was taken to the hospital for emergency surgery.
[6] The State charged Swank with Level 3 felony aggravated battery because the
gunshot wound created a substantial risk that Donald would die. See Ind. Code
§ 35-42-2-1.5 (2014) (“A person who knowingly or intentionally inflicts injury
on a person that creates a substantial risk of death . . . .”). At trial, Swank
admitted shooting the gun and admitted the injury created a substantial risk of
Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017 Page 3 of 7
death. 2 Thus, the only issue before the jury was whether the shooting occurred
in self-defense. The jury found Swank guilty, and the trial court imposed a
twelve-year sentence.
Discussion and Decision
[7] Swank argues the State did not present sufficient evidence to rebut his claim of
self-defense. “A valid claim of self-defense is legal justification for an otherwise
criminal act.” Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011).
(c) A person is justified in using reasonable force against any
other person to protect the person or a third person from what
the person reasonably believes to be the imminent use of
unlawful force. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to
prevent serious bodily injury to the person or a third person or
the commission of a forcible felony. No person in this state shall
be placed in legal jeopardy of any kind whatsoever for protecting
the person or a third person by reasonable means necessary.
(d) A person:
2
Donald needed emergency surgery, during which doctors had to remove part of his bowel and colon.
Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017 Page 4 of 7
(1) is justified in using reasonable force, including deadly
force, against any other person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to
prevent or terminate the other person’s unlawful entry of or
attack on the person’s dwelling, curtilage, or occupied motor
vehicle.
Ind. Code § 35-41-3-2 (2013). To have the statutorily-required reasonable belief
that the force used was necessary, a defendant must have had both a subjective
belief that the force used was necessary to prevent serious bodily injury and that
a reasonable person would have believed the force he used was necessary under
the circumstances. Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007).
[8] When a defendant’s claim of self-defense finds support in the evidence, the
State must negate at least one of the elements. King v. State, 61 N.E.3d 1275,
1283 (Ind. Ct. App. 2016), trans. denied. “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.” Id.
[9] Our review of an appellant’s challenge of the State’s evidence rebutting a claim
of self-defense is the same as for any sufficiency claim. Id. We consider only
the evidence and inferences that support the verdict; and we may not reweigh
evidence or assess witness credibility. Id. We will not reverse unless “no
Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017 Page 5 of 7
reasonable person could say that self-defense was negated by the State beyond a
reasonable doubt.” Id.
[10] Swank notes Erik testified that Swank had the gun out after Donald began
banging the bat on the stove, that Swank left the house after getting his
possessions, and that Donald then went out the front door with the bat. He also
notes his own testimony that Donald approached him outside with the bat, that
he was afraid Donald would hit him with the bat, and that Donald was only
one step away from him when he shot the gun. Based on those pieces of
testimony, Swank argues he “was justified in using deadly force. He had
withdrawn from the initial confrontation. Donald was the individual, who
while armed with the baseball bat, approached [Swank] outside by the van.
[Swank] was in imminent danger, and fired the .22 pistol.” (Appellant’s Br. at
10.) However, Swank is relying on the evidence most favorable to his defense,
and that is not the evidence we are to consider. See King, 61 N.E.3d at 1283
(“We consider only the probative evidence and reasonable inferences drawn
from the evidence that support the verdict.”).
[11] The State presented three witnesses who testified Donald left the baseball bat in
the house when he went out to the porch. In addition, Donald was standing on
or in front of the porch, which was on the driver’s side of the van, and Swank
was on the passenger side of the van. As it would be impossible for an unarmed
Donald to have harmed Swank when a van was between them, the State’s
evidence demonstrated Swank could not have had a reasonable belief that he
needed to shoot Donald. See id. at 1284 (defendant’s claim of a fight
Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017 Page 6 of 7
undermined from autopsy evidence that victim was shot in the head from more
than three feet away).
[12] Because the State presented sufficient evidence to rebut Swank’s claim of self-
defense, we affirm Swank’s conviction of Level 3 felony aggravated battery.
[13] Affirmed.
Najam, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1395 | March 29, 2017 Page 7 of 7