David Cobb v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 22, 2016
• Docket: 71A03-1506-CR-627
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Feb 22 2016, 5:31 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David Cobb, February 22, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1506-CR-627 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff Hurley, Judge Trial Court Cause No. 71D08-1407-FC-130

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-627 | February 22, 2016 Page 1 of 5 Case Summary [1] David Cobb (“Cobb”) appeals his conviction for Battery, as a Class C felony. 1

We affirm.

Issue [2] Cobb presents a sole issue for review: whether the evidence supporting the

conviction is insufficient because the State failed to negate Cobb’s claim of self-

defense.

Facts and Procedural History [3] In June of 2014, Percy and Valarie Doggett were living with Cobb in a South

Bend residence. The Doggetts purchased a window air conditioning unit.

During the installation process, Percy retrieved a power strip from Cobb’s

room. When Cobb returned and found the power strip missing, he began

pounding on the Doggetts’ bedroom door and cursing. Eventually, Cobb

stormed out of the house.

[4] Valarie became concerned that Cobb might take their DVD player and she told

Percy to retrieve it from the living room. While Percy was kneeling in front of

the television unhooking the DVD player, Cobb came back into the house.

1 Ind. Code § 35-42-2-1.

Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-627 | February 22, 2016 Page 2 of 5 Cobb punched Percy in the face. Percy fell and Cobb began kicking him.

Valarie, who had observed Cobb strike Percy, ran into the bedroom and called

9-1-1.

[5] When police arrived, Percy initially rejected medical attention. However, by

the next day he was in severe pain and he went to a hospital. There, it was

discovered that Percy had a cracked rib, a collapsed lung, two broken facial

bones, and a broken nose. After surgery, Percy spent a few days in the hospital

recuperating and missed nearly one month of work.

[6] On July 8, 2014, Cobb was charged with Battery. On April 21, 2015, a jury

found Cobb guilty as charged. He was sentenced to six years imprisonment.

This appeal ensued.

Discussion and Decision [7] Cobb contends that the State’s evidence fell short of disproving his claim of self-

defense. To support his argument, he points to his own testimony that Percy

swung at him first in the living room, that Percy had twice struck him during

the dispute over the power strip, and that Percy had struck him a week earlier –

claims contradicted by the Doggetts’ testimony.

[8] To convict Cobb of Battery, as a Class C felony, as charged, the State was

required to show that he knowingly touched Percy in a rude, insolent, or angry

manner, resulting in serious bodily injury to Percy. I.C. § 35-42-2-1; App. at 21.

When reviewing a claim of insufficiency of the evidence, we do not reweigh the

Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-627 | February 22, 2016 Page 3 of 5 evidence or judge the credibility of the witnesses, but will consider only the

probative evidence and reasonable inferences supporting the verdict. Drane v.

State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm the conviction unless no

reasonable trier of fact could find the elements of the crime proven beyond a

reasonable doubt. Id.

[9] A valid claim of self-defense is legal justification for an otherwise criminal act.

Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997). “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(c).

[10] When a defendant raises a claim of self-defense, he is required to show three

facts: (1) he was in a place where he had a right to be; (2) he acted without

fault; and (3) he had a reasonable fear of death or great bodily harm. Wallace v.

State, 725 N.E.2d 837, 840 (Ind. 2000). The defendant’s belief must be

reasonable and in good faith and his “reaction to that belief must be reasonable

based upon the surrounding circumstances under which the events have

occurred.” Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995).

[11] 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. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). 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

Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-627 | February 22, 2016 Page 4 of 5 of its evidence in chief. Id. Whether the State has met its burden is a question

of fact for the jury. Id. Self-defense is generally unavailable to a defendant who

is the initial aggressor. Id.

[12] The evidence negating Cobb’s claim of self-defense is as follows. Valarie and

Percy testified that a verbal disagreement ensued when Cobb discovered the

power strip was missing, but they each denied that Percy struck Cobb. Percy

testified that he was kneeling when Cobb came up from behind him and struck

him. When Percy fell to the ground, he could feel Cobb kicking him. He

“blacked out” at some point. (Tr. at 73.) The State presented evidence that

Cobb was the initial aggressor and continued to attack Percy even as he lay on

the floor. Accordingly, the State presented sufficient evidence from which the

jury could conclude that Cobb did not act in self-defense.

[13] Affirmed.

Vaidik, C.J. and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1506-CR-627 | February 22, 2016 Page 5 of 5