Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jul 19 2013, 6:33 am 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:
BARBARA J. SIMMONS GREGORY F. ZOELLER Oldenburg, Indiana Attorney General of Indiana
JOSEPH Y. HO Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JESUS MONDRAGON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1212-CR-635 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Dan Moore, Judge Pro Tempore Cause No. 49G17-1210-CM-74008
July 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge STATEMENT OF THE CASE
Jesus Mondragon (“Mondragon”) appeals his conviction of domestic battery, a
Class A misdemeanor.1
We affirm.
ISSUE
Whether the State presented sufficient evidence to rebut Mondragon’s self-defense claim.
FACTS AND PROCEDURAL HISTORY
In October 2012, Mondragon and Sarah Cervantes (“Cervantes”) lived together
with their daughter in an apartment rented by Cervantes. On October 26, 2013,
Mondragon drove Cervantes’ Jeep as he took Cervantes and their daughter to the
babysitter. Cervantes took their daughter into the babysitter’s home and returned to the
Jeep. Upon her return, Cervantes saw that Mondragon was smoking a marijuana
cigarette. Cervantes told Mondragon not to smoke marijuana in her vehicle. Mondragon
became upset, continued to smoke the marijuana, and began screaming at Cervantes and
driving at a high rate of speed.
Mondragon lost control of the Jeep, causing the vehicle to “almost flip[].” (Tr.
11). At some point while he was driving, Mondragon smashed and broke the windshield
on the driver’s side of the jeep. Mondragon screamed at Cervantes, blaming her for the
near-accident. He then stopped the Jeep, exited, and began walking away. Cervantes
moved to the driver’s seat and drove toward Mondragon to pick him up. 1 Ind. Code § 35-42-2-1.3(a).
2 Mondragon entered the Jeep and again began yelling at Cervantes. He punched
her three times in the right arm, which “hurt a lot.” (Tr. 14). When she put her hand in
his face to stop him, he punched her in the left eye. He then punched her multiple times
with a closed fist on her head and arm. When Cervantes moved her hand away,
Mondragon continued to punch her. At some point during the encounter, Mondragon
broke the windshield on the passenger side of the jeep.
Cervantes drove to her apartment and called the police. Officer Thomas Smith
(“Officer Smith”) of the Indianapolis Metropolitan Police Department responded to the
call and observed that Cervantes was shaking, crying, and had a swollen left eye. Officer
Smith arrested Mondragon.
Mondragon was charged with the Class A misdemeanors of domestic battery and
battery. After a bench trial, the trial court found him guilty of both charges. The trial
court merged the battery conviction into the domestic battery conviction and sentenced
Mondragon to 365 days with credit for 35 days served with the remainder of the term
suspended to probation.
Mondragon now appeals.
DISCUSSION AND DECISION
Mondragon contends that the State failed to provide sufficient evidence to rebut
his self-defense claim. In support of his contention, Mondragon emphasizes that his
testimony differed from Cervantes.
3 Our standard of review for sufficiency claims is well settled. In reviewing
sufficiency of the evidence claims, this court does not reweigh the evidence or assess the
credibility of witnesses. Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans.
denied. Not only must the fact-finder determine whom to believe but also what portions
of conflicting testimony to believe. In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App. 1999),
trans. denied. We consider only the evidence most favorable to the judgment, together
with all reasonable inferences drawn therefrom. Davis, 791 N.E.2d at 269-70. The
conviction will be affirmed if there is substantial evidence of probative value to support
the conclusion of the trier of fact. Id. at 270. Reversal is appropriate “only when
reasonable persons would not be able to form inferences as to each material element of
the offense.” Alvies v. State, 905 N.E.2d 57, 61 (Ind. Ct. App. 2009).
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 frow
what the person reasonably believes to be the imminent use of unlawful force.” I.C. §
35-41-3-2(c). A person is not justified in using force if, among other things, (1) the
person is committing or is escaping after the commission of a crime; (2) the person
provokes unlawful action by another person with intent to cause bodily injury to the other
person; or (3) 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 the intent to do so and the other person nevertheless continues or threatens to
4 continue unlawful action.” I.C. § 35-41-3-2(g). The amount of force that a person may
use depends on the urgency of the situation, and the self-defense claim will fail if the
person uses “more force than is reasonably necessary under the circumstances.” Harmon
v. State, 849 N.E.2d 726, 730-31 (Ind. Ct. App. 2006). When a person uses more force
than is reasonably necessary under the circumstances, the right of self-defense is
“extinguished.” Id. at 731.
To sustain a defendant’s conviction, the State must negate at least one of the
elements of the self-defense claim. Wallace, 725 N.E.2d at 840. The State may meet its
burden by rebutting the defense directly, affirmatively showing that the defendant did not
act in self-defense, or simply relying upon the sufficiency of the State’s evidence in chief.
Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007), trans. denied. Whether the
State has met its burden is a question of fact for the factfinder. Id. This Court will affirm
if there is sufficient evidence of probative value to support the conclusion of the trier of
fact. Wallace, 725 N.E.2d at 840. If the defendant is convicted despite his claim 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 v. State, 770 N.E.2d 799,
800 (Ind. 2002). 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
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Jul 19 2013, 6:33 am 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:
BARBARA J. SIMMONS GREGORY F. ZOELLER Oldenburg, Indiana Attorney General of Indiana
JOSEPH Y. HO Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JESUS MONDRAGON, ) ) Appellant-Defendant, ) ) vs. ) No. 49A04-1212-CR-635 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Dan Moore, Judge Pro Tempore Cause No. 49G17-1210-CM-74008
July 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge STATEMENT OF THE CASE
Jesus Mondragon (“Mondragon”) appeals his conviction of domestic battery, a
Class A misdemeanor.1
We affirm.
ISSUE
Whether the State presented sufficient evidence to rebut Mondragon’s self-defense claim.
FACTS AND PROCEDURAL HISTORY
In October 2012, Mondragon and Sarah Cervantes (“Cervantes”) lived together
with their daughter in an apartment rented by Cervantes. On October 26, 2013,
Mondragon drove Cervantes’ Jeep as he took Cervantes and their daughter to the
babysitter. Cervantes took their daughter into the babysitter’s home and returned to the
Jeep. Upon her return, Cervantes saw that Mondragon was smoking a marijuana
cigarette. Cervantes told Mondragon not to smoke marijuana in her vehicle. Mondragon
became upset, continued to smoke the marijuana, and began screaming at Cervantes and
driving at a high rate of speed.
Mondragon lost control of the Jeep, causing the vehicle to “almost flip[].” (Tr.
11). At some point while he was driving, Mondragon smashed and broke the windshield
on the driver’s side of the jeep. Mondragon screamed at Cervantes, blaming her for the
near-accident. He then stopped the Jeep, exited, and began walking away. Cervantes
moved to the driver’s seat and drove toward Mondragon to pick him up. 1 Ind. Code § 35-42-2-1.3(a).
2 Mondragon entered the Jeep and again began yelling at Cervantes. He punched
her three times in the right arm, which “hurt a lot.” (Tr. 14). When she put her hand in
his face to stop him, he punched her in the left eye. He then punched her multiple times
with a closed fist on her head and arm. When Cervantes moved her hand away,
Mondragon continued to punch her. At some point during the encounter, Mondragon
broke the windshield on the passenger side of the jeep.
Cervantes drove to her apartment and called the police. Officer Thomas Smith
(“Officer Smith”) of the Indianapolis Metropolitan Police Department responded to the
call and observed that Cervantes was shaking, crying, and had a swollen left eye. Officer
Smith arrested Mondragon.
Mondragon was charged with the Class A misdemeanors of domestic battery and
battery. After a bench trial, the trial court found him guilty of both charges. The trial
court merged the battery conviction into the domestic battery conviction and sentenced
Mondragon to 365 days with credit for 35 days served with the remainder of the term
suspended to probation.
Mondragon now appeals.
DISCUSSION AND DECISION
Mondragon contends that the State failed to provide sufficient evidence to rebut
his self-defense claim. In support of his contention, Mondragon emphasizes that his
testimony differed from Cervantes.
3 Our standard of review for sufficiency claims is well settled. In reviewing
sufficiency of the evidence claims, this court does not reweigh the evidence or assess the
credibility of witnesses. Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans.
denied. Not only must the fact-finder determine whom to believe but also what portions
of conflicting testimony to believe. In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App. 1999),
trans. denied. We consider only the evidence most favorable to the judgment, together
with all reasonable inferences drawn therefrom. Davis, 791 N.E.2d at 269-70. The
conviction will be affirmed if there is substantial evidence of probative value to support
the conclusion of the trier of fact. Id. at 270. Reversal is appropriate “only when
reasonable persons would not be able to form inferences as to each material element of
the offense.” Alvies v. State, 905 N.E.2d 57, 61 (Ind. Ct. App. 2009).
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 frow
what the person reasonably believes to be the imminent use of unlawful force.” I.C. §
35-41-3-2(c). A person is not justified in using force if, among other things, (1) the
person is committing or is escaping after the commission of a crime; (2) the person
provokes unlawful action by another person with intent to cause bodily injury to the other
person; or (3) 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 the intent to do so and the other person nevertheless continues or threatens to
4 continue unlawful action.” I.C. § 35-41-3-2(g). The amount of force that a person may
use depends on the urgency of the situation, and the self-defense claim will fail if the
person uses “more force than is reasonably necessary under the circumstances.” Harmon
v. State, 849 N.E.2d 726, 730-31 (Ind. Ct. App. 2006). When a person uses more force
than is reasonably necessary under the circumstances, the right of self-defense is
“extinguished.” Id. at 731.
To sustain a defendant’s conviction, the State must negate at least one of the
elements of the self-defense claim. Wallace, 725 N.E.2d at 840. The State may meet its
burden by rebutting the defense directly, affirmatively showing that the defendant did not
act in self-defense, or simply relying upon the sufficiency of the State’s evidence in chief.
Hood v. State, 877 N.E.2d 492, 497 (Ind. Ct. App. 2007), trans. denied. Whether the
State has met its burden is a question of fact for the factfinder. Id. This Court will affirm
if there is sufficient evidence of probative value to support the conclusion of the trier of
fact. Wallace, 725 N.E.2d at 840. If the defendant is convicted despite his claim 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 v. State, 770 N.E.2d 799,
800 (Ind. 2002). 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. Id. at 801. 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.
5 A defendant is guilty of Class A misdemeanor domestic battery if the State proves
that the defendant “knowingly or intentionally touches an individual who . . . is or was
living as if a spouse of another person . . . or has a child in common with the other person
. . . in a rude, insolent, or angry manner that results in bodily injury to the person.” Ind.
Code § 35-42-2-1.3(a). Here, Cervantes testified that Mondragon became angry and
began to cause pain by punching her in the arm, head, and left eye. Officer Smith
testified that he observed Cervantes swollen left eye. Also, the State presented
photographs of Cervantes’ injuries.
The evidence presented through Cervantes’ testimony is sufficient to establish that
Mondragon was the first aggressor. See McEwen v. State, 695 N.E.2d 78, 90 (Ind. 1998)
(holding that the defendant’s actions as the initial aggressor negated the defendant’s self-
defense claim). Cervantes’ testimony is also sufficient to establish that Mondragon’s use
of force was occasioned by his anger, not a reasonable fear of bodily harm. Mondragon
admitted that he was angry and that Cervantes’ only act was to defend herself after
Mondragon began hitting her. Mondragon, who the fact-finder reasonably believed was
bigger and stronger than Cervantes, could have easily repelled Cervantes. Instead, he
initially punched her and continued to do so after she tried to defend herself. The State
has clearly demonstrated that Mondragon did not act in self-defense.
Mondragon asked the trial court to reject Cervantes’ testimony and believe his
testimony that he was defending himself. The trial court credited Cervantes’ testimony
and did not credit Mondragon’s. Mondragon is now asking us to reject Cervantes’
6 testimony and believe that he acted in self-defense. We reject Mondragon’s invitation to
reweigh the evidence, and we affirm the conviction.
Affirmed.
KIRSCH, J., and VAIDIK, J., concur.