Mark Carter v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 13, 2017
• Docket: 49A04-1707-CR-1543
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 13 2017, 6:49 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 Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Mark Carter, December 13, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1707-CR-1543 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Patrick Murphy, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G16-1612-F6-46917

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017 Page 1 of 6 [1] Mark Carter appeals his convictions for Class A Misdemeanor Battery 1 and

Class A Misdemeanor Domestic Battery,2 arguing that the evidence is

insufficient. Finding the evidence sufficient, we affirm.

Facts [2] In November 2016, Carter and Kimberly Brown had been dating on and off for

approximately two years and had lived together in Indianapolis for four or five

months. Brown had a key to the house and had mail delivered to that address.

Although she did not pay rent, she engaged in drug deals for Carter, both

delivering drugs and collecting payment on his behalf.

[3] On November 22, 2016, Brown returned to the house after delivering drugs for

Carter. She found Carter in the bedroom; he became angry because Brown

“was a little short on the drugs[.]” Tr. p. 20. Carter got “very, very upset” and

insisted that Brown either sit on the bed or in a nearby chair. Id. at 13. Brown

got onto the bed and made a comment to Carter, angering him and leading to

him punching her in the back of her head, causing pain and swelling. He then

began choking her and threatened to choke her with a belt and to hit her with a

hammer. Brown attempted to leave the house but Carter tried to keep her

there, pulling her back inside the house as she tried to exit.

1 Ind. Code § 35-42-2-1. 2 I.C. § 35-42-2-1.3.

Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017 Page 2 of 6 [4] Around this time, Indianapolis Police Officer Marlon Minor was dispatched to

the domestic disturbance. When he arrived, he saw Carter and Brown

screaming at each other and observed red marks on Brown’s chest, a scratch on

Brown’s right arm, and a bruise on the back of one of her arms; he also noticed

that her hand was bleeding. Photographs of Brown show blood on her lip and

hand, scratches on her neck and hand, and a bruise on her arm. Officer Minor

observed no visible injuries to Carter.

[5] On December 7, 2016, the State charged Carter with Level 6 felony

intimidation, Class A misdemeanor battery, and Class A misdemeanor

domestic battery. At Carter’s bench trial, which took place on March 20 and

April 10, 2017, Carter claimed that he acted in self-defense during the

altercation. At the close of the trial, the trial court found him not guilty of

intimidation and guilty of battery and domestic battery. On April 10, 2017, the

trial court sentenced Carter to concurrent one-year terms for each conviction,

fully suspended to probation. Carter now appeals.

Discussion and Decision [6] Carter argues that the evidence does not support his convictions for Class A

misdemeanor battery or Class A misdemeanor domestic battery. When

reviewing a claim of insufficient evidence, we will consider only the evidence

and reasonable inferences that support the conviction. Gray v. State, 957 N.E.2d

171, 174 (Ind. 2011). We will affirm if, based on the evidence and inferences, a

Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017 Page 3 of 6 reasonable jury could have found the defendant guilty beyond a reasonable

doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).

[7] To convict Carter of Class A misdemeanor battery, the State was required to

prove beyond a reasonable doubt that he touched Brown in a rude, insolent, or

angry manner, resulting in bodily injury. I.C. § 35-42-2-1.

[8] Carter’s sole argument with respect to his battery conviction is that the State

failed to rebut his claim of self-defense. To raise a successful self-defense claim,

a defendant must show that 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 or had a reasonable

belief that force is necessary to prevent or terminate an unlawful entry of or

attack on his dwelling, curtilage, or occupied motor vehicle. Ind. Code § 35-41-

3-2(d); 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 has the burden of

negating at least one of the necessary elements. Wilson, 770 N.E.2d at 800. If a

defendant is convicted despite a claim of self-defense, we will reverse only if no

reasonable person could say that the State negated self-defense beyond a

reasonable doubt. Id. at 800-01.

[9] Carter directs our attention to his testimony, in which he stated that Brown did

not live in his home, that he wanted her to leave his home but she refused, and

that she attacked him first. Brown, however, testified that Carter was the initial

aggressor, punching her in the head and giving her “a big ole’ knot on the back

Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017 Page 4 of 6 of [her] head . . .” Tr. p. 13-14, 24. Carter then choked Brown and tried to

prevent her from leaving the house. Brown’s testimony was corroborated by

Officer Minor’s observations at the scene as well as photographs of the injuries

she sustained. This evidence is sufficient both to rebut Carter’s claim of self-

defense and to support the Class A misdemeanor battery conviction. See, e.g.,

Tharpe v. State, 955 N.E.2d 836, 844-45 (Ind. Ct. App. 2011) (holding that an

initial aggressor cannot claim self-defense unless he withdrew from the

encounter and communicated his intent to do so to the other person). Carter’s

claims to the contrary are simply a request that we reweigh the evidence, which

we decline to do.

[10] To convict Carter of Class A misdemeanor domestic battery, the State was

required to prove that Brown was his family or household member and that he

touched her in a rude, insolent, or angry manner. I.C. § 35-42-2-1.3. Carter

argues that the evidence does not establish that Brown is his family or

household member. “Family or household member” includes people who are

“dating or [have] dated” and people who are or were “engaged in a sexual

relationship[.]” Ind. Code § 35-31.5-2-128(a). Carter himself testified that he

and Brown were engaged in a sexual relationship. Tr. p. 56; see also Appellant’s

Br. p. 11 (noting that Carter’s relationship with Brown “was one of drugs and

sex”). Additionally, Brown testified that they had been dating for two years

and were engaged in a sexual relationship. Tr. p. 12-13, 21. This evidence is

sufficient to support the trial court’s conclusion that Brown is Carter’s family or

Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017 Page 5 of 6 household member and, consequently, to support Carter’s Class A

misdemeanor domestic battery conviction.

[11] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1543 | December 13, 2017 Page 6 of 6