MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 31 2020, 9:46 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael C. Borschel Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy Fager, March 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2413 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49G06-1903-F3-10577
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 1 of 7 [1] Jeremy Fager appeals his convictions of Level 5 battery resulting in serious
bodily injury; 1 Level 6 felony strangulation; 2 and Class A misdemeanor
domestic battery. 3 Fager argues the State did not sufficiently rebut his claim of
self-defense. We affirm.
Facts and Procedural History [2] On March 16, 2019, Fager and P.S. went to several bars to celebrate St.
Patrick’s Day. One of Fager’s friends drove the couple from bar to bar and
eventually returned them to a residence in which Fager rented a room. After
the friend drove away, Fager realized he had left his room key in the friend’s
car. He texted the friend to come back, and Fager and P.S. sat down in the
common living room of the residence. P.S. waited with Fager because her keys
were in Fager’s locked room.
[3] While in the living room, Fager said to P.S., “Why are you being such a bitch?”
(Tr. Vol. II at 44.) In response, P.S. went into the kitchen and sat near the
backdoor “[b]ecause [she] could tell he was mad.” (Id. at 45.) Fager followed
P.S. into the kitchen and asked her what she was doing. She told him, “I’m just
going to sit out here and wait for [the friend] to get back with the keys so I can
leave.” (Id.) Fager told P.S. that she needed to wait outside. P.S. refused, and
1 Ind. Code § 35-42-2-1(g)(1). 2 Ind. Code § 35-42-2-9(c) (2017). 3 Ind. Code § 35-42-2-1.3(a)(1) (2016).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 2 of 7 Fager “pulled [her] up by [her] hair.” (Id.) Fager then started hitting P.S. on
the side of her head with a closed fist. P.S. saw a knife next to a pizza box in
the kitchen and grabbed it. Fager hit her again on the right side of her face, and
P.S. fell on the ground. Fager began kicking P.S., and P.S. stabbed Fager with
the knife. Fager then said, “This bitch stabbed me.” (Id. at 46.) P.S. attempted
to crawl back into the living room while yelling for help. Fager came up behind
P.S., got on her back, and started to strangle her. P.S. was able to get away
from Fager and leave the residence.
[4] P.S. tried to get help from nearby neighbors but was unsuccessful. She ran
down the street to a bar called Club Paradise and the bouncer there called 911
for her. The responding officer testified regarding P.S.’s condition following the
altercation:
She was completely covered in blood. . . . Her hair was covered in blood. Her face was covered in blood. Her right eye was completely black and swollen shut. Her right ear was completely black and blue and swollen. Her – all of her clothing, from her shirt all the way down to her shoes, covered in blood, and her hands were mangled. It looked like several of her fingers were broken and bloody.
(Id. at 13.) An ambulance transported P.S. to the hospital where she was
treated for an orbital fracture, lacerations and fractures to her fingers, and other
bruising associated with strangulation. Fager suffered a cut on his finger that
“wasn’t nothing [sic] worthy of transporting to a hospital. So they just treated it
on site.” (Id. at 28.)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 3 of 7 [5] On March 20, 2019, the State charged Fager with Level 3 felony criminal
confinement; 4 Level 5 felony criminal confinement; 5 Level 5 felony battery
resulting in serious injury; Level 6 felony strangulation; Level 6 felony criminal
confinement; 6 Level 6 felony battery resulting in bodily injury; 7 and Class A
misdemeanor domestic battery. The trial court held a bench trial starting on
July 25, 2019, and continued the trial to August 23, 2019, based on witness
unavailability.
[6] At the end of the trial, the trial court found Fager guilty of Level 6 felony
strangulation, Level 5 felony battery resulting in serious bodily injury, Level 6
felony battery resulting in bodily injury, and Class A misdemeanor domestic
battery. The trial court merged the Level 5 and Level 6 felony battery
convictions based on double jeopardy. On September 12, 2019, the trial court
sentenced Fager to an aggregate sentence of eight years, with five executed, two
years on work release, and one year on probation.
Discussion and Decision [7] When considering the sufficiency of evidence, “a reviewing court does not
reweigh the evidence or judge the credibility of the witnesses.” McHenry v.
4 Ind. Code § 35-42-3-3(b)(2) (2014). 5 Ind. Code § 35-42-3-3(b)(1) (2014). 6 Ind. Code § 35-42-3-3(a) (2014). 7 Ind. Code § 35-42-2-1(e)(1).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 4 of 7 State, 820 N.E.2d 124, 126 (Ind. 2005). We must affirm “if the probative
evidence and reasonable inferences drawn from the evidence could have
allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.” Id. (internal citation omitted). Fager argues the State did
not present sufficient evidence that he committed the crimes for which he was
convicted because, while he acknowledges that he engaged in a physical
altercation with P.S., he contends he did so in self-defense after P.S. stabbed
him.
[8] “To prevail on a claim of self-defense, a defendant must show he: (1) was in a
place where he had a right to be; (2) did not provoke, instigate, or participate
willingly in the violence; and (3) had a reasonable fear of death or great bodily
harm.” Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). “When a claim of
self-defense is raised and finds support in the evidence, the State bears the
burden of negating at least one of the necessary elements.” King v. State, 61
N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied. “The State may meet this
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 31 2020, 9:46 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael C. Borschel Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jeremy Fager, March 31, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2413 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49G06-1903-F3-10577
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 1 of 7 [1] Jeremy Fager appeals his convictions of Level 5 battery resulting in serious
bodily injury; 1 Level 6 felony strangulation; 2 and Class A misdemeanor
domestic battery. 3 Fager argues the State did not sufficiently rebut his claim of
self-defense. We affirm.
Facts and Procedural History [2] On March 16, 2019, Fager and P.S. went to several bars to celebrate St.
Patrick’s Day. One of Fager’s friends drove the couple from bar to bar and
eventually returned them to a residence in which Fager rented a room. After
the friend drove away, Fager realized he had left his room key in the friend’s
car. He texted the friend to come back, and Fager and P.S. sat down in the
common living room of the residence. P.S. waited with Fager because her keys
were in Fager’s locked room.
[3] While in the living room, Fager said to P.S., “Why are you being such a bitch?”
(Tr. Vol. II at 44.) In response, P.S. went into the kitchen and sat near the
backdoor “[b]ecause [she] could tell he was mad.” (Id. at 45.) Fager followed
P.S. into the kitchen and asked her what she was doing. She told him, “I’m just
going to sit out here and wait for [the friend] to get back with the keys so I can
leave.” (Id.) Fager told P.S. that she needed to wait outside. P.S. refused, and
1 Ind. Code § 35-42-2-1(g)(1). 2 Ind. Code § 35-42-2-9(c) (2017). 3 Ind. Code § 35-42-2-1.3(a)(1) (2016).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 2 of 7 Fager “pulled [her] up by [her] hair.” (Id.) Fager then started hitting P.S. on
the side of her head with a closed fist. P.S. saw a knife next to a pizza box in
the kitchen and grabbed it. Fager hit her again on the right side of her face, and
P.S. fell on the ground. Fager began kicking P.S., and P.S. stabbed Fager with
the knife. Fager then said, “This bitch stabbed me.” (Id. at 46.) P.S. attempted
to crawl back into the living room while yelling for help. Fager came up behind
P.S., got on her back, and started to strangle her. P.S. was able to get away
from Fager and leave the residence.
[4] P.S. tried to get help from nearby neighbors but was unsuccessful. She ran
down the street to a bar called Club Paradise and the bouncer there called 911
for her. The responding officer testified regarding P.S.’s condition following the
altercation:
She was completely covered in blood. . . . Her hair was covered in blood. Her face was covered in blood. Her right eye was completely black and swollen shut. Her right ear was completely black and blue and swollen. Her – all of her clothing, from her shirt all the way down to her shoes, covered in blood, and her hands were mangled. It looked like several of her fingers were broken and bloody.
(Id. at 13.) An ambulance transported P.S. to the hospital where she was
treated for an orbital fracture, lacerations and fractures to her fingers, and other
bruising associated with strangulation. Fager suffered a cut on his finger that
“wasn’t nothing [sic] worthy of transporting to a hospital. So they just treated it
on site.” (Id. at 28.)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 3 of 7 [5] On March 20, 2019, the State charged Fager with Level 3 felony criminal
confinement; 4 Level 5 felony criminal confinement; 5 Level 5 felony battery
resulting in serious injury; Level 6 felony strangulation; Level 6 felony criminal
confinement; 6 Level 6 felony battery resulting in bodily injury; 7 and Class A
misdemeanor domestic battery. The trial court held a bench trial starting on
July 25, 2019, and continued the trial to August 23, 2019, based on witness
unavailability.
[6] At the end of the trial, the trial court found Fager guilty of Level 6 felony
strangulation, Level 5 felony battery resulting in serious bodily injury, Level 6
felony battery resulting in bodily injury, and Class A misdemeanor domestic
battery. The trial court merged the Level 5 and Level 6 felony battery
convictions based on double jeopardy. On September 12, 2019, the trial court
sentenced Fager to an aggregate sentence of eight years, with five executed, two
years on work release, and one year on probation.
Discussion and Decision [7] When considering the sufficiency of evidence, “a reviewing court does not
reweigh the evidence or judge the credibility of the witnesses.” McHenry v.
4 Ind. Code § 35-42-3-3(b)(2) (2014). 5 Ind. Code § 35-42-3-3(b)(1) (2014). 6 Ind. Code § 35-42-3-3(a) (2014). 7 Ind. Code § 35-42-2-1(e)(1).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 4 of 7 State, 820 N.E.2d 124, 126 (Ind. 2005). We must affirm “if the probative
evidence and reasonable inferences drawn from the evidence could have
allowed a reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.” Id. (internal citation omitted). Fager argues the State did
not present sufficient evidence that he committed the crimes for which he was
convicted because, while he acknowledges that he engaged in a physical
altercation with P.S., he contends he did so in self-defense after P.S. stabbed
him.
[8] “To prevail on a claim of self-defense, a defendant must show he: (1) was in a
place where he had a right to be; (2) did not provoke, instigate, or participate
willingly in the violence; and (3) had a reasonable fear of death or great bodily
harm.” Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). “When a claim of
self-defense is raised and finds support in the evidence, the State bears the
burden of negating at least one of the necessary 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. If a defendant is convicted despite his claim of self-
defense, we will reverse only if no reasonable person could say that self-defense
was negated beyond a reasonable doubt. Wilson, 770 N.E.2d at 801.
[9] A person is not justified in using force in self-defense when “the person has
entered into combat with another person or is the initial aggressor unless the
person withdraws from the encounter and communicates to the other person
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 5 of 7 the intent to do so and the other person nevertheless continues or threatens to
continue unlawful action.” Ind. Code § 35-41-3-2(g)(3). The parties dispute
whether Fager negated his self-defense claim by provoking, instigating, or
willingly participating in the altercation.
[10] Here, Fager instigated the physical altercation when he pulled P.S. up by her
hair in the kitchen because she refused to wait outside. He punched her
multiple times with a closed fist and began kicking her while she was on the
floor before she stabbed him. Fager was the initial aggressor and at no time did
he withdraw from combat or communicate his desire to do so. Fager’s
alternate version of the facts is an invitation for us to reweigh the evidence and
judge the credibility of witnesses, which we cannot do. See McHenry, 820
N.E.2d at 126 (appellate court does not reweigh evidence or judge credibility of
witnesses). The evidence was sufficient to rebut Fager’s claim of self-defense,
and we accordingly affirm his convictions. See Huls v. State, 971 N.E.2d 739,
744 (Ind. Ct. App. 2012) (initial aggressor did not withdraw or communicate an
intent to withdraw from physical confrontation, thus self-defense claim failed),
trans. denied.
Conclusion [11] The State presented sufficient evidence to rebut Fager’s self-defense claim
because it presented testimony that Fager was the initial aggressor in the
physical altercation with P.S. and did not withdraw or communicate his intent
to withdraw from the altercation at any time. Accordingly, we affirm.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 6 of 7 [12] Affirmed.
Crone, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2413 | March 31, 2020 Page 7 of 7