MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Nov 21 2017, 9:26 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy D. Griner Curtis T. Hill, Jr. Mishawaka, Indiana Attorney General of Indiana
Denise A. Robinson Senior Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon McCall, November 21, 2017 Appellant-Defendant, Court of Appeals Case No. 71A04-1703-CR-527 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff Marnocha, Judge Trial Court Cause No. 71D02-1609-F5-178 71D02-1509-F5-208
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 1 of 7 Case Summary [1] In this consolidated appeal, Brandon McCall appeals his conviction for Level 5
felony domestic battery, the revocation of his probation in a separate case, and
the sentence imposed for the revocation of his probation. We affirm.
Issues [2] McCall raises two issues, which we restate as:
I. whether the State rebutted his self-defense claim; and
II. whether the trial court properly revoked his probation and sentenced him to serve his entire suspended sentence.
Facts [3] In February 2016, McCall pled guilty to Class A misdemeanor carrying a
handgun without a license and Level 5 felony possession of methamphetamine.
McCall was sentenced to one year on the handgun conviction and two years on
the methamphetamine conviction with the sentences to be served concurrently.
The trial court suspended the two-year sentence to probation.
[4] On August 31, 2016, McCall was at his residence in Mishawaka with his
girlfriend, T.H., who was pregnant. McCall and T.H. apparently had a violent
relationship. They argued, and T.H. slapped McCall. T.H. called McCall’s
stepmother about the argument. McCall then slapped T.H., knocking her
glasses off, and repeatedly hit her on her face. T.H. left the house and called
Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 2 of 7 McCall’s stepmother again. When T.H. returned to the house to get her two
children, McCall started hitting and slapping her again. McCall pushed her up
against a wall, and his hands were on her throat. T.H. struggled with him and
was eventually able to leave the house with the two children. T.H. called the
police, who found her with blood on her lip and bruising on her neck and face.
The officers then went to McCall’s residence. McCall got very upset and
“started yelling and cursing” at T.H. for calling the police. Tr. Vol. II p. 24.
McCall claimed to have been battered by T.H., but the officers did not see any
injuries on McCall.
[5] The State charged McCall with Level 5 felony domestic battery with bodily
injury of a pregnant woman and Level 6 felony strangulation. At a bench trial,
McCall claimed self-defense. The trial court found McCall guilty of Level 5
felony domestic battery but not guilty of strangulation. The trial court
sentenced him to four years with two years suspended to probation.
[6] As a result of the new charges against McCall, the State filed a petition to revoke
his probation. The trial court found that McCall had violated his probation and
ordered him to serve his entire two-year previously-suspended sentence. McCall
now appeals both his domestic battery conviction and the revocation of his
probation.
Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 3 of 7 Analysis I. Self-Defense
[7] McCall claims that the State failed to rebut his self-defense claim. 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.
Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh the
evidence nor judge the credibility of witnesses. Id. 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.
[8] A valid claim of self-defense is legal justification for an otherwise criminal act.
Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). “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.” Ind. Code § 35-41-3-2(c). To prevail on a self-defense claim, the
defendant must show that he: (1) was in a place where he had a right to be; (2)
acted without fault; and (3) was in reasonable fear or apprehension of bodily
harm. Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). “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.” Wilson v. State, 770 N.E.2d
799, 800 (Ind. 2002). “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.” Miller v. State,
720 N.E.2d 696, 700 (Ind. 1999). “If a defendant is convicted despite his claim
Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 4 of 7 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.” Wilson,
770 N.E.2d at 800-01.
[9] McCall argues that the State failed to rebut his “reasonable belief that he was in
fear of bodily harm.” Appellant’s Br. p. 8. According to McCall, T.H. was the
initial aggressor, she had hit him in the past, he had injuries after the
altercation, and he was on home detention at the time and was unable to leave.
However, the State presented evidence that, although T.H. admitted to slapping
McCall during an argument, she then made a phone call. McCall then attacked
T.H., slapping and hitting her. After T.H. escaped from him, she returned to
the house to get her two children, and McCall attacked her a second time, again
hitting her and holding her against the wall. “The amount of force that an
individual may use to protect himself must be proportionate to the urgency of
the situation.” Pinkston v. State, 821 N.E.2d 830, 842 (Ind. Ct. App. 2004),
trans. denied. “When a person uses more force than is reasonably necessary
under the circumstances, the right of self-defense is extinguished.” Id.
Although T.H. slapped McCall, she had walked away from McCall and made a
telephone call before McCall attacked her. McCall’s use of force was not
proportionate to the urgency of the situation and he used more force than was
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Nov 21 2017, 9:26 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Amy D. Griner Curtis T. Hill, Jr. Mishawaka, Indiana Attorney General of Indiana
Denise A. Robinson Senior Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon McCall, November 21, 2017 Appellant-Defendant, Court of Appeals Case No. 71A04-1703-CR-527 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff Marnocha, Judge Trial Court Cause No. 71D02-1609-F5-178 71D02-1509-F5-208
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 1 of 7 Case Summary [1] In this consolidated appeal, Brandon McCall appeals his conviction for Level 5
felony domestic battery, the revocation of his probation in a separate case, and
the sentence imposed for the revocation of his probation. We affirm.
Issues [2] McCall raises two issues, which we restate as:
I. whether the State rebutted his self-defense claim; and
II. whether the trial court properly revoked his probation and sentenced him to serve his entire suspended sentence.
Facts [3] In February 2016, McCall pled guilty to Class A misdemeanor carrying a
handgun without a license and Level 5 felony possession of methamphetamine.
McCall was sentenced to one year on the handgun conviction and two years on
the methamphetamine conviction with the sentences to be served concurrently.
The trial court suspended the two-year sentence to probation.
[4] On August 31, 2016, McCall was at his residence in Mishawaka with his
girlfriend, T.H., who was pregnant. McCall and T.H. apparently had a violent
relationship. They argued, and T.H. slapped McCall. T.H. called McCall’s
stepmother about the argument. McCall then slapped T.H., knocking her
glasses off, and repeatedly hit her on her face. T.H. left the house and called
Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 2 of 7 McCall’s stepmother again. When T.H. returned to the house to get her two
children, McCall started hitting and slapping her again. McCall pushed her up
against a wall, and his hands were on her throat. T.H. struggled with him and
was eventually able to leave the house with the two children. T.H. called the
police, who found her with blood on her lip and bruising on her neck and face.
The officers then went to McCall’s residence. McCall got very upset and
“started yelling and cursing” at T.H. for calling the police. Tr. Vol. II p. 24.
McCall claimed to have been battered by T.H., but the officers did not see any
injuries on McCall.
[5] The State charged McCall with Level 5 felony domestic battery with bodily
injury of a pregnant woman and Level 6 felony strangulation. At a bench trial,
McCall claimed self-defense. The trial court found McCall guilty of Level 5
felony domestic battery but not guilty of strangulation. The trial court
sentenced him to four years with two years suspended to probation.
[6] As a result of the new charges against McCall, the State filed a petition to revoke
his probation. The trial court found that McCall had violated his probation and
ordered him to serve his entire two-year previously-suspended sentence. McCall
now appeals both his domestic battery conviction and the revocation of his
probation.
Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 3 of 7 Analysis I. Self-Defense
[7] McCall claims that the State failed to rebut his self-defense claim. 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.
Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We neither reweigh the
evidence nor judge the credibility of witnesses. Id. 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.
[8] A valid claim of self-defense is legal justification for an otherwise criminal act.
Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). “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.” Ind. Code § 35-41-3-2(c). To prevail on a self-defense claim, the
defendant must show that he: (1) was in a place where he had a right to be; (2)
acted without fault; and (3) was in reasonable fear or apprehension of bodily
harm. Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). “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.” Wilson v. State, 770 N.E.2d
799, 800 (Ind. 2002). “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.” Miller v. State,
720 N.E.2d 696, 700 (Ind. 1999). “If a defendant is convicted despite his claim
Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 4 of 7 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.” Wilson,
770 N.E.2d at 800-01.
[9] McCall argues that the State failed to rebut his “reasonable belief that he was in
fear of bodily harm.” Appellant’s Br. p. 8. According to McCall, T.H. was the
initial aggressor, she had hit him in the past, he had injuries after the
altercation, and he was on home detention at the time and was unable to leave.
However, the State presented evidence that, although T.H. admitted to slapping
McCall during an argument, she then made a phone call. McCall then attacked
T.H., slapping and hitting her. After T.H. escaped from him, she returned to
the house to get her two children, and McCall attacked her a second time, again
hitting her and holding her against the wall. “The amount of force that an
individual may use to protect himself must be proportionate to the urgency of
the situation.” Pinkston v. State, 821 N.E.2d 830, 842 (Ind. Ct. App. 2004),
trans. denied. “When a person uses more force than is reasonably necessary
under the circumstances, the right of self-defense is extinguished.” Id.
Although T.H. slapped McCall, she had walked away from McCall and made a
telephone call before McCall attacked her. McCall’s use of force was not
proportionate to the urgency of the situation and he used more force than was
necessary under the circumstances. Further, McCall’s claim that T.H. had
significantly battered him was not supported by the evidence presented at the
trial. The State presented sufficient evidence to disprove McCall’s self-defense
claim.
Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 5 of 7 II. Probation Revocation and Sentence
[10] Next, McCall argues that the trial court erred by revoking his probation.
“Probation is a matter of grace left to trial court discretion, not a right to which
a criminal defendant is entitled.” Prewitt v. State, 878 N.E.2d 184, 188 (Ind.
2007). “The trial court determines the conditions of probation and may revoke
probation if the conditions are violated.” Id. Proof of a single violation of the
conditions of a defendant’s probation is sufficient to support a trial court’s
decision to revoke probation. Hubbard v. State, 683 N.E.2d 618, 622 (Ind. Ct.
App. 1997). “If there is substantial evidence of probative value to support the
trial court’s conclusion that a probationer has violated any condition of
probation, we will affirm its decision to revoke probation.” Braxton v. State, 651
N.E.2d 268, 270 (Ind. 1995).
[11] McCall’s probation was revoked because of the new offense of domestic
battery. On appeal, McCall argues only that the evidence is insufficient to
sustain that domestic battery conviction because the State failed to rebut his
claim of self-defense. We have rejected that argument, and the trial court
properly revoked McCall’s probation.
[12] McCall also argues that the sentence imposed by the trial court for the
revocation of his probation was an abuse of discretion. McCall argues that the
trial court should not have imposed the entire suspended sentence because he
was on house arrest and unable to leave the house to escape T.H., T.H. was the
initial aggressor and had been violent in the past, and he had been doing well
on home detention. A trial court’s sentencing decisions for probation violations Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 6 of 7 are reviewable using the abuse of discretion standard. Prewitt, 878 N.E.2d at
188. An abuse of discretion occurs where the decision is clearly against the
logic and effect of the facts and circumstances. Id. Upon a finding of a
probation violation, a trial court may: (1) continue the person on probation,
with or without modifying or enlarging the conditions; (2) extend the person’s
probationary period for not more than one year beyond the original
probationary period; and (3) order execution of all or part of the sentence that
was suspended at the time of initial sentencing. I.C. § 35-38-2-3(h). McCall was
given significant leniency when the trial court suspended his two-year sentence
to probation. Despite the leniency, he battered his pregnant girlfriend. In the
PSI, McCall admitted that he was drinking alcohol on the day of the incident.
He also has a prior conviction for domestic battery. Given these circumstances,
the trial court did not abuse its discretion by ordering McCall to serve the entire
two-year suspended sentence as a result of the revocation of his probation.
Conclusion [13] The State presented sufficient evidence to rebut McCall’s claim of self-defense.
Further, the trial court properly revoked his probation and properly ordered him
to serve his entire suspended sentence. We affirm.
[14] Affirmed.
May, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A04-1703-CR-527 | November 21, 2017 Page 7 of 7