MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 16 2017, 9:48 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Ellen Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Raul Gonzales, March 16, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1610-CR-2352 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina R. Appellee-Plaintiff. Klineman, Judge Trial Court Cause No. 49G17-1602-F6-7995
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017 Page 1 of 6 Statement of the Case [1] Raul Gonzales appeals his conviction for battery, as a Class B misdemeanor,
following a bench trial. He raises one issue on appeal, namely, whether the
State presented sufficient evidence to support his conviction. We affirm.
Facts and Procedural History [2] On February 29, 2016, Gonzales returned to the Indianapolis residence he had
shared off-and-on for the previous four years with his wife, Paulina Gutierrez,
and their three minor children. When Gonzales arrived at the residence,
Gutierrez and the children were there and Gonzales started an argument with
Gutierrez in which he yelled, cursed at her, and accused her of taking the keys
to his truck. Gonzales also threw boxes off of the counter as he looked for the
keys and continued to yell at Gutierrez. Gonzales demanded that Gutierrez
leave because his girlfriend was coming over to the house, and he yelled that
Gutierrez had no right to be at the house.
[3] Gutierrez went upstairs to put their one-year-old child to bed and, when she
came back downstairs, Gonzales’ girlfriend, Harley Baxter, was sitting at the
kitchen table. Gutierrez asked Baxter to leave and asked Gonzales to have
Baxter leave. When Baxter did not leave, Gutierrez called the police. The
police arrived approximately ten minutes later, but they did not force Baxter to
leave since she was Gonzales’ guest at the residence. Gutierrez then went
upstairs to pack some belongings so she could leave and take the children to the
home of Gloria Telles, Gonzales’ aunt, or the home of Gutierrez’s mother.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017 Page 2 of 6 Gutierrez did not have a car, so she called Telles to ask for a ride. While
Gutierrez waited on the stairs for Telles to arrive, Gonzales continued to yell at
Gutierrez and called her a bad mother.
[4] When Telles arrived, Guiterrez went to the front door while the children waited
in the living room. Gonzales was angry and loud, and he argued with Telles at
the front door. Gonzales told Telles that Gutierrez had to be the one to leave,
Telles had no right to be there, and the dispute was none of Telles’ business.
Gonzales then grabbed Gutierrez by the shoulders with both hands and
forcefully pushed her out of the front door. Gutierrez held onto Gonzales’ shirt
to prevent herself from falling while he pushed her. Gonzales went back inside
to grab Telles, and he pushed Telles out of the front door as well. Gonzales
then went inside the residence and locked the door. Gutierrez tried to open the
door to get the three children, but she was unable to do so. Gutierrez then
called the police again, and when the police arrived for the second time, they
arrested Gonzales.
[5] On February 29, 2016, the State charged Gonzales with Count I, domestic
battery, as a Level 6 felony; Count II, battery in the presence of a child, as a
Level 6 felony; Count III, domestic battery, as a Class A misdemeanor; and
Count IV, battery resulting in bodily injury, as a Class A misdemeanor.
Following a bench trial on September 12, 2016, the trial court found Gonzales
guilty of battery, as a Class B misdemeanor, as a lesser included offense under
Count II, and it acquitted Gonzales of all other charges. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017 Page 3 of 6 Discussion and Decision [6] Gonzales contends that the State failed to provide sufficient evidence to support
his conviction. Because he appeals a judgment entered by the trial court
without a jury, we employ a clearly erroneous standard of review and give “due
regard . . . to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A).
Under th[e clearly erroneous] standard we review only for sufficiency of the evidence. State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013). “We neither reweigh the evidence nor determine the credibility of witnesses.” Id. “We consider only the probative evidence and reasonable inferences supporting the judgment and reverse only on a showing of clear error.” Id. Clear error is “that which leaves us with a definite and firm conviction that a mistake has been made.” Id. (citation omitted).
Hitch v. State, 51 N.E.3d 216, 226 (Ind. 2016).
[7] To prove Gonzales engaged in battery, as a Class B misdemeanor, the State was
required to prove beyond a reasonable doubt that: (1) Gonzales, (2) knowingly
or intentionally, (3) touched Gutierrez, (4) in a rude, insolent, or angry manner.
Ind. Code § 35-42-2-1(c)(1) (2016). The evidence favorable to the judgment
shows that, after arguing with and yelling at Gutierrez, Gonzales knowingly
grabbed Gutierrez by the shoulders using both of his hands and pushed her
“hard” and “strongly” out of the front door of the residence. Tr. Vol. II at 22,
49. Both Gutierrez and Telles testified that they witnessed as much. That is
sufficient evidence to support Gonzales’ battery conviction. See, e.g., Bailey v.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017 Page 4 of 6 State, 907 N.E.2d 1003, 1005-06 (Ind. 2009); Ball v. State, 945 N.E.2d 252, 258
(Ind. Ct. App. 2011), trans. denied.
[8] However, Gonzales contends that his actions were taken in self-defense and/or
in defense of Baxter and that the State failed to provide sufficient evidence to
rebut his claim of self-defense. To prevail on a claim of self-defense in a case
that does not involve deadly force, the 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) was protecting himself from what he
reasonably believed to be the imminent use of unlawful force. Dixson v. State,
22 N.E.3d 836, 839 (Ind. Ct. App. 2014) (citing I.C. § 35-41-3-2(c)), trans.
denied. Here, Gonzales testified that Gutierrez pushed and grabbed him first
while she was trying “to get to [Baxter]” and that he only grabbed and pushed
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 16 2017, 9:48 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana
Ellen Meilaender Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Raul Gonzales, March 16, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1610-CR-2352 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Christina R. Appellee-Plaintiff. Klineman, Judge Trial Court Cause No. 49G17-1602-F6-7995
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017 Page 1 of 6 Statement of the Case [1] Raul Gonzales appeals his conviction for battery, as a Class B misdemeanor,
following a bench trial. He raises one issue on appeal, namely, whether the
State presented sufficient evidence to support his conviction. We affirm.
Facts and Procedural History [2] On February 29, 2016, Gonzales returned to the Indianapolis residence he had
shared off-and-on for the previous four years with his wife, Paulina Gutierrez,
and their three minor children. When Gonzales arrived at the residence,
Gutierrez and the children were there and Gonzales started an argument with
Gutierrez in which he yelled, cursed at her, and accused her of taking the keys
to his truck. Gonzales also threw boxes off of the counter as he looked for the
keys and continued to yell at Gutierrez. Gonzales demanded that Gutierrez
leave because his girlfriend was coming over to the house, and he yelled that
Gutierrez had no right to be at the house.
[3] Gutierrez went upstairs to put their one-year-old child to bed and, when she
came back downstairs, Gonzales’ girlfriend, Harley Baxter, was sitting at the
kitchen table. Gutierrez asked Baxter to leave and asked Gonzales to have
Baxter leave. When Baxter did not leave, Gutierrez called the police. The
police arrived approximately ten minutes later, but they did not force Baxter to
leave since she was Gonzales’ guest at the residence. Gutierrez then went
upstairs to pack some belongings so she could leave and take the children to the
home of Gloria Telles, Gonzales’ aunt, or the home of Gutierrez’s mother.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017 Page 2 of 6 Gutierrez did not have a car, so she called Telles to ask for a ride. While
Gutierrez waited on the stairs for Telles to arrive, Gonzales continued to yell at
Gutierrez and called her a bad mother.
[4] When Telles arrived, Guiterrez went to the front door while the children waited
in the living room. Gonzales was angry and loud, and he argued with Telles at
the front door. Gonzales told Telles that Gutierrez had to be the one to leave,
Telles had no right to be there, and the dispute was none of Telles’ business.
Gonzales then grabbed Gutierrez by the shoulders with both hands and
forcefully pushed her out of the front door. Gutierrez held onto Gonzales’ shirt
to prevent herself from falling while he pushed her. Gonzales went back inside
to grab Telles, and he pushed Telles out of the front door as well. Gonzales
then went inside the residence and locked the door. Gutierrez tried to open the
door to get the three children, but she was unable to do so. Gutierrez then
called the police again, and when the police arrived for the second time, they
arrested Gonzales.
[5] On February 29, 2016, the State charged Gonzales with Count I, domestic
battery, as a Level 6 felony; Count II, battery in the presence of a child, as a
Level 6 felony; Count III, domestic battery, as a Class A misdemeanor; and
Count IV, battery resulting in bodily injury, as a Class A misdemeanor.
Following a bench trial on September 12, 2016, the trial court found Gonzales
guilty of battery, as a Class B misdemeanor, as a lesser included offense under
Count II, and it acquitted Gonzales of all other charges. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017 Page 3 of 6 Discussion and Decision [6] Gonzales contends that the State failed to provide sufficient evidence to support
his conviction. Because he appeals a judgment entered by the trial court
without a jury, we employ a clearly erroneous standard of review and give “due
regard . . . to the opportunity of the trial court to judge the credibility of the
witnesses.” Ind. Trial Rule 52(A).
Under th[e clearly erroneous] standard we review only for sufficiency of the evidence. State v. Oney, 993 N.E.2d 157, 161 (Ind. 2013). “We neither reweigh the evidence nor determine the credibility of witnesses.” Id. “We consider only the probative evidence and reasonable inferences supporting the judgment and reverse only on a showing of clear error.” Id. Clear error is “that which leaves us with a definite and firm conviction that a mistake has been made.” Id. (citation omitted).
Hitch v. State, 51 N.E.3d 216, 226 (Ind. 2016).
[7] To prove Gonzales engaged in battery, as a Class B misdemeanor, the State was
required to prove beyond a reasonable doubt that: (1) Gonzales, (2) knowingly
or intentionally, (3) touched Gutierrez, (4) in a rude, insolent, or angry manner.
Ind. Code § 35-42-2-1(c)(1) (2016). The evidence favorable to the judgment
shows that, after arguing with and yelling at Gutierrez, Gonzales knowingly
grabbed Gutierrez by the shoulders using both of his hands and pushed her
“hard” and “strongly” out of the front door of the residence. Tr. Vol. II at 22,
49. Both Gutierrez and Telles testified that they witnessed as much. That is
sufficient evidence to support Gonzales’ battery conviction. See, e.g., Bailey v.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017 Page 4 of 6 State, 907 N.E.2d 1003, 1005-06 (Ind. 2009); Ball v. State, 945 N.E.2d 252, 258
(Ind. Ct. App. 2011), trans. denied.
[8] However, Gonzales contends that his actions were taken in self-defense and/or
in defense of Baxter and that the State failed to provide sufficient evidence to
rebut his claim of self-defense. To prevail on a claim of self-defense in a case
that does not involve deadly force, the 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) was protecting himself from what he
reasonably believed to be the imminent use of unlawful force. Dixson v. State,
22 N.E.3d 836, 839 (Ind. Ct. App. 2014) (citing I.C. § 35-41-3-2(c)), trans.
denied. Here, Gonzales testified that Gutierrez pushed and grabbed him first
while she was trying “to get to [Baxter]” and that he only grabbed and pushed
Gutierrez in response to her actions and in defense of himself and Baxter. Tr.
Vol. II at 74-76. Gonzales also testified that the residence was his, and no one
contends that he did not have a right to be at the residence. Thus, Gonzales
provided some evidence of each of the three elements of self-defense.
[9] “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” beyond
a reasonable doubt, Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002), but it can
rebut or disprove the claim of self-defense by affirmatively showing the
defendant did not act in self-defense or by simply relying on the evidence in its
case-in-chief, Carroll v. State, 744 N.E.2d 432, 433-34 (Ind. 2001). The standard
of review for a challenge to the sufficiency of the evidence rebutting a claim of
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017 Page 5 of 6 self-defense is the same as the standard for any sufficiency of the evidence
claim. Wilson, 770 N.E.2d at 800. “A defendant’s conviction will be upheld
unless no reasonable person could say that the State negated the self-defense
claim beyond a reasonable doubt.” Wilcher v. State, 771 N.E.2d 113, 116 (Ind.
Ct. App. 2002), trans. denied.
[10] As previously noted, both Gutierrez and Telles testified that they witnessed
Gonzales grab Gutierrez by the shoulders using both of his hands and push her
forcefully out of the front door of the residence. Gutierrez also testified that she
and Gonzales were in a purely verbal argument prior to that point. Thus, the
State provided sufficient evidence that Gonzales was the person who instigated
the violence, thereby negating Gonzales’ self-defense claim. Dixson, 22 N.E.3d
at 839. Although Gonzales testified that Gutierrez pushed and grabbed him
first, the trial court was under no obligation to credit his testimony. See, e.g.,
Wilcher, 771 N.E.2d at 116. Gonzales’ assertions to the contrary are merely
requests that we reweigh the evidence and assess the witnesses’ credibility,
which we cannot do. Wilson, 770 N.E.2d at 801. The evidence favoring the
judgment was sufficient to rebut Gonzales’ claim of self-defense.
[11] Affirmed.
Bailey, J., and May, J, concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1610-CR-2352 | March 16, 2017 Page 6 of 6