MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 11 2019, 7:42 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey E. Kimmell Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph Allan Wilkins, March 11, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2367 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jenny Pitts- Appellee-Plaintiff Manier, Judge Trial Court Cause No. 71D05-1712-CM-5009
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 1 of 7 Case Summary [1] Joseph Allan Wilkins was convicted of Class A misdemeanor domestic battery
and Class A misdemeanor resisting law enforcement. He now appeals, arguing
that the evidence is insufficient to support his convictions. We affirm.
Facts and Procedural History [2] The evidence most favorable to the verdicts follows. In December 2017,
Wilkins and his wife, Debra, had been married for nearly twenty-five years and
lived together in Granger. On the afternoon of December 16, Wilkins wanted
to seal the garage floor to stop a leak into their basement theater room. He
wanted to finish the project before the kids came home from college and asked
Debra, who was watching television, to move her car out of the garage. Debra
told Wilkins that she would move her car later or that the kids could move it
when they got home. Wilkins, who had lost his key to Debra’s car, did not
want to wait, so he asked Debra for her key so that he could move the car
himself. The key was in Debra’s purse, which she was holding. When Debra
said she would not give him the key, Wilkins “physically t[ook]” Debra’s purse
from her. Tr. pp. 118, 134. Debra did not want Wilkins to have her purse
because her recently deceased father’s estate papers were in it. Angry, Debra
tried to get her purse back from Wilkins, and a struggle ensued. During the
struggle, Debra reached for her purse but instead “caught” Wilkins’s beard,
pulling out some of his beard hair. Id. at 54. This angered Wilkins. Afraid that
Wilkins was going to hurt her, Debra retreated into the hallway, but Wilkins
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 2 of 7 followed her. Wilkins then grabbed Debra’s right wrist (Debra did not have
mobility in her left arm due a stroke several years before), and the two of them
ended up on the floor. Wilkins straddled Debra and held her right wrist to the
floor, telling her that he would let go when she “settled down.” Id. at 61.
Wilkins finally got off Debra when she agreed to go to “marriage counseling of
his choice.” Id. at 57.
[3] After Wilkins got off Debra, he moved her car out of the garage and began
working on the garage floor. Debra, who was still inside the house, called 911,
but she hung up. When the dispatcher called back, Debra reported the incident.
[4] When the police arrived at the house, Wilkins was working in the garage. The
first officer on the scene, St. Joseph County Police Department Officer Diana
Bauer, spoke to Wilkins in the garage for a few minutes until Debra “appeared
in the house-to-garage door.” Id. at 28. When the second officer, Officer
Daniel Yeager, arrived on the scene, Officer Bauer went inside the house and
spoke with Debra, who appeared “upset” and “pretty shaken up.” Id. Debra
complained of pain to her right wrist, and Officer Bauer noticed “some red
marks.” Id. at 29. Debra told Officer Bauer that she and Wilkins got into a
“dispute . . . over a purse that he had taken and she didn’t want him to have.”
Id. at 31.
[5] Meanwhile in the garage, Wilkins told Officer Yeager that Debra had pulled
out some of his beard hair and swung at him and that he had held her down
until she was calm. Wilkins also told Officer Yeager that he “wanted to press
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 3 of 7 charges” against Debra. Id. at 83. After a short time, Officer Bauer returned to
the garage and asked Wilkins for the purse, and Wilkins said the purse was in
his truck.
[6] Wilkins and Officer Yeager then walked to Wilkins’s truck, and Wilkins
retrieved Debra’s purse. When Officer Yeager asked for the purse, Wilkins
forcefully handed it to him, like a “chest pass.” Id. at 71. Officer Yeager then
instructed Wilkins to walk back to where they had been standing in the garage,
and Officer Yeager followed him. About halfway there, Wilkins stopped,
“started to talk loudly about [the police] not helping things,” and “start[ed] to
ball up his fists.” Id. at 75. At this point, Officer Yeager instructed Wilkins to
put his hands behind his back so that he could be detained for officer-safety
reasons. Id. When Officer Yeager put Debra’s purse on top of a trash can in
the garage so that he could handcuff Wilkins, Wilkins “went to go grab the
purse and started yelling about not [putting] the purse on top of his trash can.”
Id. In response, Officer Yeager put the purse on the garage floor, grabbed
Wilkins by the arm, “turned him around,” and “put him against” a cabinet in
the garage. Id. at 76. Wilkins, however, tried to pull his arm away from Officer
Yeager and “tens[ed] his arms,” preventing the officer from handcuffing him.
Id. at 78. At about the same time, a third officer, Officer Nicholas Johnson,
arrived on the scene and tried to “guide [Wilkins’s] arms behind his back,” but
Wilkins “jerked away from” him. Id. at 100. After the officers ordered Wilkins
to put his arms behind his back and Wilkins still did not comply, Officer
Johnson used a “leg sweep” to take Wilkins to the ground. Id. at 86. While on
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 4 of 7 the ground, Wilkins “was still trying to keep [one of his arms] underneath
him.” Id. at 79, 91. Officer Johnson then “used a distraction technique called a
hammer fist directly to [Wilkins’s] back,” which enabled him to handcuff
Wilkins. Id. at 103.
[7] The State charged Wilkins with Class A misdemeanor domestic battery and
Class A misdemeanor resisting law enforcement. At trial, Wilkins raised claims
of self-defense and excessive police force. Id. at 162-63. The jury found
Wilkins guilty as charged, and he now appeals.
Discussion and Decision [8] Wilkins first argues that the State failed to present sufficient evidence to rebut
his claim that he committed the domestic battery in self-defense. The standard
of review for a challenge to the sufficiency of the evidence to rebut a claim
of self-defense is the same as the standard for any sufficiency-of-the-evidence
claim. Cole v. State, 28 N.E.3d 1126, 1136-37 (Ind. Ct. App. 2015). We neither
reweigh the evidence nor judge the credibility of witnesses. Id. at 1137.
Additionally, 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.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 11 2019, 7:42 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jeffrey E. Kimmell Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joseph Allan Wilkins, March 11, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2367 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jenny Pitts- Appellee-Plaintiff Manier, Judge Trial Court Cause No. 71D05-1712-CM-5009
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 1 of 7 Case Summary [1] Joseph Allan Wilkins was convicted of Class A misdemeanor domestic battery
and Class A misdemeanor resisting law enforcement. He now appeals, arguing
that the evidence is insufficient to support his convictions. We affirm.
Facts and Procedural History [2] The evidence most favorable to the verdicts follows. In December 2017,
Wilkins and his wife, Debra, had been married for nearly twenty-five years and
lived together in Granger. On the afternoon of December 16, Wilkins wanted
to seal the garage floor to stop a leak into their basement theater room. He
wanted to finish the project before the kids came home from college and asked
Debra, who was watching television, to move her car out of the garage. Debra
told Wilkins that she would move her car later or that the kids could move it
when they got home. Wilkins, who had lost his key to Debra’s car, did not
want to wait, so he asked Debra for her key so that he could move the car
himself. The key was in Debra’s purse, which she was holding. When Debra
said she would not give him the key, Wilkins “physically t[ook]” Debra’s purse
from her. Tr. pp. 118, 134. Debra did not want Wilkins to have her purse
because her recently deceased father’s estate papers were in it. Angry, Debra
tried to get her purse back from Wilkins, and a struggle ensued. During the
struggle, Debra reached for her purse but instead “caught” Wilkins’s beard,
pulling out some of his beard hair. Id. at 54. This angered Wilkins. Afraid that
Wilkins was going to hurt her, Debra retreated into the hallway, but Wilkins
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 2 of 7 followed her. Wilkins then grabbed Debra’s right wrist (Debra did not have
mobility in her left arm due a stroke several years before), and the two of them
ended up on the floor. Wilkins straddled Debra and held her right wrist to the
floor, telling her that he would let go when she “settled down.” Id. at 61.
Wilkins finally got off Debra when she agreed to go to “marriage counseling of
his choice.” Id. at 57.
[3] After Wilkins got off Debra, he moved her car out of the garage and began
working on the garage floor. Debra, who was still inside the house, called 911,
but she hung up. When the dispatcher called back, Debra reported the incident.
[4] When the police arrived at the house, Wilkins was working in the garage. The
first officer on the scene, St. Joseph County Police Department Officer Diana
Bauer, spoke to Wilkins in the garage for a few minutes until Debra “appeared
in the house-to-garage door.” Id. at 28. When the second officer, Officer
Daniel Yeager, arrived on the scene, Officer Bauer went inside the house and
spoke with Debra, who appeared “upset” and “pretty shaken up.” Id. Debra
complained of pain to her right wrist, and Officer Bauer noticed “some red
marks.” Id. at 29. Debra told Officer Bauer that she and Wilkins got into a
“dispute . . . over a purse that he had taken and she didn’t want him to have.”
Id. at 31.
[5] Meanwhile in the garage, Wilkins told Officer Yeager that Debra had pulled
out some of his beard hair and swung at him and that he had held her down
until she was calm. Wilkins also told Officer Yeager that he “wanted to press
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 3 of 7 charges” against Debra. Id. at 83. After a short time, Officer Bauer returned to
the garage and asked Wilkins for the purse, and Wilkins said the purse was in
his truck.
[6] Wilkins and Officer Yeager then walked to Wilkins’s truck, and Wilkins
retrieved Debra’s purse. When Officer Yeager asked for the purse, Wilkins
forcefully handed it to him, like a “chest pass.” Id. at 71. Officer Yeager then
instructed Wilkins to walk back to where they had been standing in the garage,
and Officer Yeager followed him. About halfway there, Wilkins stopped,
“started to talk loudly about [the police] not helping things,” and “start[ed] to
ball up his fists.” Id. at 75. At this point, Officer Yeager instructed Wilkins to
put his hands behind his back so that he could be detained for officer-safety
reasons. Id. When Officer Yeager put Debra’s purse on top of a trash can in
the garage so that he could handcuff Wilkins, Wilkins “went to go grab the
purse and started yelling about not [putting] the purse on top of his trash can.”
Id. In response, Officer Yeager put the purse on the garage floor, grabbed
Wilkins by the arm, “turned him around,” and “put him against” a cabinet in
the garage. Id. at 76. Wilkins, however, tried to pull his arm away from Officer
Yeager and “tens[ed] his arms,” preventing the officer from handcuffing him.
Id. at 78. At about the same time, a third officer, Officer Nicholas Johnson,
arrived on the scene and tried to “guide [Wilkins’s] arms behind his back,” but
Wilkins “jerked away from” him. Id. at 100. After the officers ordered Wilkins
to put his arms behind his back and Wilkins still did not comply, Officer
Johnson used a “leg sweep” to take Wilkins to the ground. Id. at 86. While on
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 4 of 7 the ground, Wilkins “was still trying to keep [one of his arms] underneath
him.” Id. at 79, 91. Officer Johnson then “used a distraction technique called a
hammer fist directly to [Wilkins’s] back,” which enabled him to handcuff
Wilkins. Id. at 103.
[7] The State charged Wilkins with Class A misdemeanor domestic battery and
Class A misdemeanor resisting law enforcement. At trial, Wilkins raised claims
of self-defense and excessive police force. Id. at 162-63. The jury found
Wilkins guilty as charged, and he now appeals.
Discussion and Decision [8] Wilkins first argues that the State failed to present sufficient evidence to rebut
his claim that he committed the domestic battery in self-defense. The standard
of review for a challenge to the sufficiency of the evidence to rebut a claim
of self-defense is the same as the standard for any sufficiency-of-the-evidence
claim. Cole v. State, 28 N.E.3d 1126, 1136-37 (Ind. Ct. App. 2015). We neither
reweigh the evidence nor judge the credibility of witnesses. Id. at 1137.
Additionally, 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.
[9] Indiana Code section 35-41-3-2(c) provides that “[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.” A valid claim of self-defense is legal justification for an otherwise
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 5 of 7 criminal act. Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011). In order to
prevail on a claim of self-defense, Wilkins was required to show that he (1)
acted without fault; (2) was in a place where he had a right to be; and (3) had a
reasonable fear or apprehension of bodily harm. Henson v. State, 786 N.E.2d
274, 277 (Ind. 2003). 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).
[10] On appeal, Wilkins asserts that he “acted without fault as he took reasonable,
non-violent measures to persuade Debra to move her car for him.” Appellant’s
Br. p. 11. But that is not what the evidence shows. Rather, the evidence shows
that Debra, who was holding her purse and did not want Wilkins to have it,
told Wilkins that she would not move her car or give him her key. In response,
Wilkins took the purse from Debra, causing a struggle for the purse to ensue.
Evidence that Wilkins took the purse from Debra against her will allowed the
jury to find that Wilkins did not act without fault. Accordingly, the State
presented sufficient evidence to rebut Wilkins’s claim of self-defense.
[11] Wilkins next argues that the evidence is insufficient to support his conviction
for resisting law enforcement because Officer Johnson used excessive force in
employing the leg sweep. The premise of Wilkins’s argument, however, is that
he fully cooperated with the police up to the point of the leg sweep and only
resisted when Officer Johnson “slammed [him] to the concrete.” Id. at 12.
The evidence shows that Wilkins also resisted before the leg sweep. That is,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 6 of 7 when Wilkins and Officer Yeager were walking back from Wilkins’s truck,
Wilkins stopped, “started to talk loudly about [the police] not helping things,”
and “start[ed] to ball up his fists.” Tr. p. 75. At this point, Officer Yeager
instructed Wilkins to put his hands behind his back so that he could be detained
for officer-safety reasons. Instead of complying, Wilkins reached for Debra’s
purse. Officer Yeager then grabbed Wilkins by the arm, “turned him around,”
and “put him against” a cabinet in the garage. Id. at 76. Wilkins still did not
comply. Instead, he tried to pull his arm away from Officer Yeager and
“tens[ed] his arms,” preventing the officer from handcuffing him. Id. at 78.
These actions, which occurred before Officer Johnson used the leg sweep, are
sufficient to sustain Wilkins’s conviction for resisting law enforcement.
[12] Affirmed.
Mathias, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2367 | March 11, 2019 Page 7 of 7