MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 12 2019, 10:14 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court 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
George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Onorio Caballero-Ramirez, March 12, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2358 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark D. Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49G06-1605-F5-19111
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019 Page 1 of 6 [1] Onorio Caballero-Ramirez appeals his conviction, following a bench trial, of
Level 6 felony battery. His sole contention on appeal is the that the State failed
to present sufficient evidence to rebut his claim of self-defense.
[2] We affirm.
Facts & Procedural History
[3] The facts favorable to the conviction follow. On the evening of April 2, 2016,
Caballero-Ramirez went to the apartment of his former girlfriend, M.G., and
their seven-year-old son, B.G. They had previously lived together as a family
for several years. Although Caballero-Ramirez no longer lived there, he would
visit from time to time. M.G. also had a five-year-old son, J.G., living with her
and B.G.
[4] Caballero-Ramirez was at the apartment when M.G. arrived home from work.
He appeared upset with her and indicated that he wanted to go out to eat. She
declined, and Caballero-Ramirez accused her of “going out with somebody
else.” Transcript at 10. After the two began to argue, Caballero-Ramirez hit
M.G.’s arm and squeezed it. M.G. responded by pushing Caballero-Ramirez
away. She then fell to the floor. M.G. had a pre-existing back injury from
work and warned Caballero-Ramirez not to hurt her because she “could end up
handicapped.” Id. at 12. Caballero-Ramirez said he did not care what
happened to M.G. and proceeded to angrily place his hands around the front of
her throat. Caballero-Ramirez was on top of M.G., with his body weight on
her. She pleaded with him to release her.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019 Page 2 of 6 [5] During the altercation, B.G. came out of his bedroom to see what the yelling
was about. Caballero-Ramirez was still on M.G., and B.G. asked his mother if
he should go to the neighbor. When M.G. indicated yes, B.G. ran to the
neighbor’s door and knocked for help. B.G. was nervous and scared, and J.G.
was next to him crying. When Carol Menjivar answered the door, B.G.
exclaimed, “call the police because my father is hitting my mother.” Id. at 46.
Menjivar brought the children inside her apartment.
[6] In the meantime, Caballero-Ramirez got up off M.G., shoving her once more,
and then left. M.G. eventually called Menjivar, who came to M.G.’s apartment
to help. M.G. was crying on the couch. Menjivar assisted M.G. and suggested
they call the police, but M.G. refused because she was scared. M.G. made a
police report on the morning of April 4, after her employer would not let her
work due to her appearance. M.G. had significant bruising to her face/chin
and right arm, as well as other scratches and contusions on her face and body.
She was treated at the hospital for these injuries after speaking with the police.
[7] Caballero-Ramirez was subsequently charged with a number of counts related
to this event, some of which were later dismissed. On August 20, 2018, a bench
trial was held on the three remaining counts – Level 5 felony strangulation
(Count III), Level 6 felony battery in the presence of a child (Count V), and
Class A misdemeanor battery resulting in bodily injury (Count VI). M.G. and
Menjivar testified for the State, and Caballero-Ramirez testified in his own
defense. The trial court found Caballero-Ramirez guilty of Counts V and VI
but not guilty of Count III. At the sentencing hearing on September 4, 2018,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019 Page 3 of 6 the trial court entered a conviction and sentence only on Count V, the Level 6
felony. The court sentenced Caballero-Ramirez to two and one-half years with
all but his time served suspended to probation. Caballero-Ramirez now
appeals, arguing that the State failed to rebut his claim of self-defense.
Discussion & Decision
[8] 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 claim.
Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We consider only the
probative evidence and reasonable inferences supporting the trial court’s
decision. Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans.
denied. We neither reweigh the evidence nor judge the credibility of witnesses.
Wilson, 770 N.E.2d at 801. The trier of fact is entitled to determine which
version of the incident to credit and is the sole judge of the effect that any
discrepancies or contradictions might have on the outcome of the case. Scott v.
State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied. If there is
sufficient evidence of probative value to support the conclusion of the trier of
fact, then the verdict will not be disturbed. Wilson, 770 N.E.2d at 801.
[9] Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,
984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “A person is justified in
using reasonable force against any other person to protect the person … from
what the person reasonably believes to be the imminent use of unlawful force.”
Ind. Code § 35-41-3-2(c). The person, however, is not justified in using force if,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019 Page 4 of 6 among other things, “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 continue unlawful action.” I.C. § 35-41-
3-2(g)(3).
[10] To prevail on his self-defense claim, Caballero-Ramirez was required to show
that he: “(1) was in a place where he had a right to be; (2) acted without fault;
and (3) was in reasonable fear of apprehension of bodily harm.” Richardson v.
State, 79 N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied. When a claim of
self-defense finds support in the evidence, the State bears the burden of negating
at least one of the necessary elements. Id.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 12 2019, 10:14 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court 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
George P. Sherman Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Onorio Caballero-Ramirez, March 12, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2358 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark D. Stoner, Appellee-Plaintiff Judge Trial Court Cause No. 49G06-1605-F5-19111
Altice, Judge.
Case Summary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019 Page 1 of 6 [1] Onorio Caballero-Ramirez appeals his conviction, following a bench trial, of
Level 6 felony battery. His sole contention on appeal is the that the State failed
to present sufficient evidence to rebut his claim of self-defense.
[2] We affirm.
Facts & Procedural History
[3] The facts favorable to the conviction follow. On the evening of April 2, 2016,
Caballero-Ramirez went to the apartment of his former girlfriend, M.G., and
their seven-year-old son, B.G. They had previously lived together as a family
for several years. Although Caballero-Ramirez no longer lived there, he would
visit from time to time. M.G. also had a five-year-old son, J.G., living with her
and B.G.
[4] Caballero-Ramirez was at the apartment when M.G. arrived home from work.
He appeared upset with her and indicated that he wanted to go out to eat. She
declined, and Caballero-Ramirez accused her of “going out with somebody
else.” Transcript at 10. After the two began to argue, Caballero-Ramirez hit
M.G.’s arm and squeezed it. M.G. responded by pushing Caballero-Ramirez
away. She then fell to the floor. M.G. had a pre-existing back injury from
work and warned Caballero-Ramirez not to hurt her because she “could end up
handicapped.” Id. at 12. Caballero-Ramirez said he did not care what
happened to M.G. and proceeded to angrily place his hands around the front of
her throat. Caballero-Ramirez was on top of M.G., with his body weight on
her. She pleaded with him to release her.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019 Page 2 of 6 [5] During the altercation, B.G. came out of his bedroom to see what the yelling
was about. Caballero-Ramirez was still on M.G., and B.G. asked his mother if
he should go to the neighbor. When M.G. indicated yes, B.G. ran to the
neighbor’s door and knocked for help. B.G. was nervous and scared, and J.G.
was next to him crying. When Carol Menjivar answered the door, B.G.
exclaimed, “call the police because my father is hitting my mother.” Id. at 46.
Menjivar brought the children inside her apartment.
[6] In the meantime, Caballero-Ramirez got up off M.G., shoving her once more,
and then left. M.G. eventually called Menjivar, who came to M.G.’s apartment
to help. M.G. was crying on the couch. Menjivar assisted M.G. and suggested
they call the police, but M.G. refused because she was scared. M.G. made a
police report on the morning of April 4, after her employer would not let her
work due to her appearance. M.G. had significant bruising to her face/chin
and right arm, as well as other scratches and contusions on her face and body.
She was treated at the hospital for these injuries after speaking with the police.
[7] Caballero-Ramirez was subsequently charged with a number of counts related
to this event, some of which were later dismissed. On August 20, 2018, a bench
trial was held on the three remaining counts – Level 5 felony strangulation
(Count III), Level 6 felony battery in the presence of a child (Count V), and
Class A misdemeanor battery resulting in bodily injury (Count VI). M.G. and
Menjivar testified for the State, and Caballero-Ramirez testified in his own
defense. The trial court found Caballero-Ramirez guilty of Counts V and VI
but not guilty of Count III. At the sentencing hearing on September 4, 2018,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019 Page 3 of 6 the trial court entered a conviction and sentence only on Count V, the Level 6
felony. The court sentenced Caballero-Ramirez to two and one-half years with
all but his time served suspended to probation. Caballero-Ramirez now
appeals, arguing that the State failed to rebut his claim of self-defense.
Discussion & Decision
[8] 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 claim.
Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We consider only the
probative evidence and reasonable inferences supporting the trial court’s
decision. Tharpe v. State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans.
denied. We neither reweigh the evidence nor judge the credibility of witnesses.
Wilson, 770 N.E.2d at 801. The trier of fact is entitled to determine which
version of the incident to credit and is the sole judge of the effect that any
discrepancies or contradictions might have on the outcome of the case. Scott v.
State, 867 N.E.2d 690, 695 (Ind. Ct. App. 2007), trans. denied. If there is
sufficient evidence of probative value to support the conclusion of the trier of
fact, then the verdict will not be disturbed. Wilson, 770 N.E.2d at 801.
[9] Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,
984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. “A person is justified in
using reasonable force against any other person to protect the person … from
what the person reasonably believes to be the imminent use of unlawful force.”
Ind. Code § 35-41-3-2(c). The person, however, is not justified in using force if,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019 Page 4 of 6 among other things, “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 continue unlawful action.” I.C. § 35-41-
3-2(g)(3).
[10] To prevail on his self-defense claim, Caballero-Ramirez was required to show
that he: “(1) was in a place where he had a right to be; (2) acted without fault;
and (3) was in reasonable fear of apprehension of bodily harm.” Richardson v.
State, 79 N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied. When a claim of
self-defense finds support in the evidence, the State bears the burden of negating
at least one of the necessary elements. 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. Id.
[11] On appeal, Caballero-Ramirez directs us to his own testimony, which stood in
stark contrast to M.G.’s testimony. He testified that M.G. kicked him out of
the apartment that night. As he gathered his things, according to Caballero-
Ramirez, M.G. blocked his exit, demanded money, and attacked him,
scratching and biting him. Caballero-Ramirez claimed that he grabbed her
hands only to stop her from injuring him further.
[12] We reject this blatant invitation to reweigh the evidence. M.G.’s testimony
establishes that Caballero-Ramirez instigated the physical confrontation when
she denied his request to have dinner with him. After Caballero-Ramirez hit
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019 Page 5 of 6 and squeezed her arm, M.G. pushed him away and then she fell to the ground.
Caballero-Ramirez then escalated the violence and climbed on top of her to
continue the assault. Regardless of whether M.G. fought back, the evidence
establishes that Caballero-Ramirez was the instigator of the violence, as well as
a willing participant. Further, M.G.’s account of the attack is supported, at
least in part, by the photographs of her various injuries, B.G.’s actions, and
Menjivar’s testimony.
[13] In light of the evidence favorable to the conviction, a “reasonable person could
say that self-defense was negated beyond a reasonable doubt.” Richardson, 79
N.E.3d 964. Accordingly, we must affirm Caballero-Ramirez’s battery
conviction.
[14] Judgment affirmed.
Najam, J. and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2358 | March 12, 2019 Page 6 of 6