MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 06 2019, 9:07 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel M. Schumm Curtis T. Hill, Jr. Indiana University Attorney General of Indiana Robert H. McKinney School of Law Tiffany A. McCoy Appellate Clinic Deputy Attorney General Austin Lensing Indianapolis, Indiana Certified Legal Intern Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Demanda Smith, December 6, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1395 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela D. Davis, Appellee-Plaintiff Judge The Honorable Hugh Patrick Murphy, Magistrate Trial Court Cause No. 49G16-1811-F6-40043
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019 Page 1 of 6 [1] Demanda Smith appeals her conviction for Class A Misdemeanor Domestic
Battery,1 arguing that the trial court erred by refusing to give a jury instruction
on self-defense. Finding no error, we affirm.
Facts [2] On November 9, 2018, Omar Barrios was at his home with some friends. At
some point, Smith, who was Barrios’s ex-girlfriend, came to Barrios’s home
uninvited. Barrios’s roommate asked him to let her come in, and he complied.
Sometime later, Barrios felt Smith grab him from behind and bite him on the
left side of his face near his cheek. She also bit his chin, the right side of his
face, and multiple places on his back. At some point, someone pulled Smith off
Barrios. Barrios later went to the emergency room, where he reported intense
pain and received a tetanus booster, antibiotics, and pain medication. Medical
personnel also had to close a laceration on the right side of his face. By the time
of Smith’s jury trial approximately five months later, some of Barrios’s wounds
were still healing and some of them had scarred.
[3] Someone called 911 and reported that Smith was “mutilating [Barrios] with her
teeth . . . [and] biting pieces of his body.” Tr. Ex. 12. The officers who
responded found Smith in a bedroom; they noticed that she was intoxicated.
1 Ind. Code § 35-42-2-1.3(a)(1).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019 Page 2 of 6 Smith had blood around her mouth and on her shirt but had no visible injuries
other than a small scratch on her face.
[4] On November 6, 2018, the State charged Smith with Level 6 felony battery
resulting in moderate bodily injury, Class A misdemeanor domestic battery,
Class A misdemeanor battery resulting in bodily injury,2 and Class A
misdemeanor criminal trespass.3
[5] Smith’s jury trial took place on April 24, 2019. At trial, Smith testified to a
different version of events. She claimed that at some point during the party, she
went to Barrios’s bedroom and found him with another woman. According to
Smith, when Smith asked Barrios what he was doing, the other woman grabbed
Smith by her head and hair and scratched her face. Smith then felt someone’s
hands around her neck and lost consciousness; the next thing she remembered
was sitting outside on the ground in handcuffs. One of the jurors asked Smith
whether she remembered biting Barrios; she responded that she “didn’t touch
[him].” Tr. Vol. II p. 129.
[6] Following the presentation of evidence, Smith tendered a self-defense jury
instruction. The trial court refused to give the instruction because Smith had
denied touching Barrios at all; therefore, the trial court found that it was not
2 The State later dismissed this charge. 3 During the jury trial, the trial court granted Smith’s motion for a directed verdict on the criminal trespass charge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019 Page 3 of 6 “appropriate to give [a self-defense i]nstruction; I think it would be misleading.”
Id. at 132.
[7] The jury found Smith guilty of Class A misdemeanor domestic battery but was
unable to reach a verdict on Level 6 felony battery resulting in moderate bodily
injury. On May 20, 2019, the trial court sentenced Smith to 365 days in jail,
with 363 days suspended to probation. Smith now appeals.
Discussion and Decision [8] Smith’s sole argument on appeal is that the trial court erred when it refused to
give her proffered jury instruction on self-defense. On review of a trial court’s
refusal to give a proposed jury instruction, we consider whether the instruction
correctly states the law, is supported by the evidence, and is covered in
substance by the other jury instructions. McCowan v. State, 27 N.E.3d 760, 763-
64 (Ind. 2015). At issue here is whether the self-defense instruction was
supported by the evidence.
[9] Generally, a defendant is entitled to have the jury instructed on any defense
theory that has some foundation in the evidence. Burton v. State, 978 N.E.2d
520, 525 (Ind. Ct. App. 2012). This rule applies even if the evidence is weak
and/or inconsistent, so long as the evidence has some probative value. Id.
[10] A valid claim of self-defense is a legal justification for an otherwise criminal act.
McCullough v. State, 985 N.E.2d 1135, 1138 (Ind. Ct. App. 2013). Put another
way, a person may be justified in using reasonable force against another person
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019 Page 4 of 6 to protect the person or a third party from what the person reasonably believes
to be an imminent use of unlawful force. Ind. Code § 35-41-3-2(c).
[11] Here, even if we were to credit Smith’s version of events, her testimony can be
summarized as follows: (1) she found Barrios and another woman in a
bedroom; (2) when Smith asked what they were doing, the other woman
attacked Smith, who tried to defend herself; (3) Smith then felt hands around
her neck and lost consciousness.4 Smith explicitly denied touching Barrios and
is not charged with anything related to force used against the other woman.
Even if all of this were true, therefore, Smith does not allege that she committed
an act—i.e., battering Barrios—that would otherwise be criminal had she not
been acting in self-defense. At no point did she state that she had touched
Barrios—instead, she specifically denied it. Consequently, her theory of
defense does not warrant a self-defense jury instruction because there is no
evidence in the record supporting it.
[12] Smith directs our attention to Young v. State in support of her argument, but we
find that case inapposite. 699 N.E.2d 252 (Ind. 1998). In Young, our Supreme
Court found that Young, who had been convicted of murder, was entitled to a
new trial when the trial court refused to give an instruction on the lesser-
included offense of reckless homicide.
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 06 2019, 9:07 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Joel M. Schumm Curtis T. Hill, Jr. Indiana University Attorney General of Indiana Robert H. McKinney School of Law Tiffany A. McCoy Appellate Clinic Deputy Attorney General Austin Lensing Indianapolis, Indiana Certified Legal Intern Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Demanda Smith, December 6, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1395 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela D. Davis, Appellee-Plaintiff Judge The Honorable Hugh Patrick Murphy, Magistrate Trial Court Cause No. 49G16-1811-F6-40043
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019 Page 1 of 6 [1] Demanda Smith appeals her conviction for Class A Misdemeanor Domestic
Battery,1 arguing that the trial court erred by refusing to give a jury instruction
on self-defense. Finding no error, we affirm.
Facts [2] On November 9, 2018, Omar Barrios was at his home with some friends. At
some point, Smith, who was Barrios’s ex-girlfriend, came to Barrios’s home
uninvited. Barrios’s roommate asked him to let her come in, and he complied.
Sometime later, Barrios felt Smith grab him from behind and bite him on the
left side of his face near his cheek. She also bit his chin, the right side of his
face, and multiple places on his back. At some point, someone pulled Smith off
Barrios. Barrios later went to the emergency room, where he reported intense
pain and received a tetanus booster, antibiotics, and pain medication. Medical
personnel also had to close a laceration on the right side of his face. By the time
of Smith’s jury trial approximately five months later, some of Barrios’s wounds
were still healing and some of them had scarred.
[3] Someone called 911 and reported that Smith was “mutilating [Barrios] with her
teeth . . . [and] biting pieces of his body.” Tr. Ex. 12. The officers who
responded found Smith in a bedroom; they noticed that she was intoxicated.
1 Ind. Code § 35-42-2-1.3(a)(1).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019 Page 2 of 6 Smith had blood around her mouth and on her shirt but had no visible injuries
other than a small scratch on her face.
[4] On November 6, 2018, the State charged Smith with Level 6 felony battery
resulting in moderate bodily injury, Class A misdemeanor domestic battery,
Class A misdemeanor battery resulting in bodily injury,2 and Class A
misdemeanor criminal trespass.3
[5] Smith’s jury trial took place on April 24, 2019. At trial, Smith testified to a
different version of events. She claimed that at some point during the party, she
went to Barrios’s bedroom and found him with another woman. According to
Smith, when Smith asked Barrios what he was doing, the other woman grabbed
Smith by her head and hair and scratched her face. Smith then felt someone’s
hands around her neck and lost consciousness; the next thing she remembered
was sitting outside on the ground in handcuffs. One of the jurors asked Smith
whether she remembered biting Barrios; she responded that she “didn’t touch
[him].” Tr. Vol. II p. 129.
[6] Following the presentation of evidence, Smith tendered a self-defense jury
instruction. The trial court refused to give the instruction because Smith had
denied touching Barrios at all; therefore, the trial court found that it was not
2 The State later dismissed this charge. 3 During the jury trial, the trial court granted Smith’s motion for a directed verdict on the criminal trespass charge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019 Page 3 of 6 “appropriate to give [a self-defense i]nstruction; I think it would be misleading.”
Id. at 132.
[7] The jury found Smith guilty of Class A misdemeanor domestic battery but was
unable to reach a verdict on Level 6 felony battery resulting in moderate bodily
injury. On May 20, 2019, the trial court sentenced Smith to 365 days in jail,
with 363 days suspended to probation. Smith now appeals.
Discussion and Decision [8] Smith’s sole argument on appeal is that the trial court erred when it refused to
give her proffered jury instruction on self-defense. On review of a trial court’s
refusal to give a proposed jury instruction, we consider whether the instruction
correctly states the law, is supported by the evidence, and is covered in
substance by the other jury instructions. McCowan v. State, 27 N.E.3d 760, 763-
64 (Ind. 2015). At issue here is whether the self-defense instruction was
supported by the evidence.
[9] Generally, a defendant is entitled to have the jury instructed on any defense
theory that has some foundation in the evidence. Burton v. State, 978 N.E.2d
520, 525 (Ind. Ct. App. 2012). This rule applies even if the evidence is weak
and/or inconsistent, so long as the evidence has some probative value. Id.
[10] A valid claim of self-defense is a legal justification for an otherwise criminal act.
McCullough v. State, 985 N.E.2d 1135, 1138 (Ind. Ct. App. 2013). Put another
way, a person may be justified in using reasonable force against another person
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019 Page 4 of 6 to protect the person or a third party from what the person reasonably believes
to be an imminent use of unlawful force. Ind. Code § 35-41-3-2(c).
[11] Here, even if we were to credit Smith’s version of events, her testimony can be
summarized as follows: (1) she found Barrios and another woman in a
bedroom; (2) when Smith asked what they were doing, the other woman
attacked Smith, who tried to defend herself; (3) Smith then felt hands around
her neck and lost consciousness.4 Smith explicitly denied touching Barrios and
is not charged with anything related to force used against the other woman.
Even if all of this were true, therefore, Smith does not allege that she committed
an act—i.e., battering Barrios—that would otherwise be criminal had she not
been acting in self-defense. At no point did she state that she had touched
Barrios—instead, she specifically denied it. Consequently, her theory of
defense does not warrant a self-defense jury instruction because there is no
evidence in the record supporting it.
[12] Smith directs our attention to Young v. State in support of her argument, but we
find that case inapposite. 699 N.E.2d 252 (Ind. 1998). In Young, our Supreme
Court found that Young, who had been convicted of murder, was entitled to a
new trial when the trial court refused to give an instruction on the lesser-
included offense of reckless homicide. The trial court based its refusal on
4 Likewise, the State’s version of events does not support a self-defense instruction because its evidence showed that Smith, without provocation, attacked Barrios from behind, biting him multiple times on his face and back.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019 Page 5 of 6 Young’s alibi defense, reasoning that if he denied committing the act altogether,
he was not entitled to an instruction on a lesser-included offense. The State’s
evidence, including eyewitness accounts, showed that Young shot the victim.
Based on that evidence, our Supreme Court found that the record contained
“conflicting and obscure” evidence as to Young’s mental state, leading to a
“genuinely disputed matter” for the jury to resolve. Id. at 256-57.5 Therefore,
the Young Court reversed, holding that the trial court should have given the
proffered jury instruction.
[13] Here, in contrast, there is no evidentiary dispute. Either (1) Smith attacked
Barrios without provocation; or (2) Smith was attacked by the other woman but
did not ever touch Barrios. In either case, self-defense is not implicated, and
Young does not lead to a different result. The trial court in this case did not err
by refusing to give the tendered jury instruction.
[14] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
5 We also note that there is a specific test for jury instructions on lesser-included offenses that applied in Young and does not apply here. First, the trial court must decide whether the lesser-included offense is inherently or factually included within the charged crime. Young, 699 N.E.2d at 255. Next, if the first prong is satisfied, the trial court must consider whether the evidence provided by the parties creates a serious evidentiary dispute about the element or elements that distinguish the greater from the lesser offense. Id. This test, which is not relevant to this appeal, is yet another reason that Young is not applicable to the case before us.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1395 | December 6, 2019 Page 6 of 6