Steven A. Bedford v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 1, 2016
• Docket: 84A01-1508-CR-1185
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 01 2016, 6:21 am

regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Kimberly A. Jackson Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Steven A. Bedford, September 1, 2016 Appellant-Defendant, Court of Appeals Case No. 84A01-1508-CR-1185 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Michael J. Lewis, Appellee-Plaintiff Judge Trial Court Cause No. 84D06-1407-FB-1986

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 1 of 12 [1] Steven Bedford appeals his convictions for Aggravated Battery,1 a Class B

Felony, and Child Solicitation,2 a Class D Felony. He argues that the trial

court erred by excluding certain evidence and refusing certain jury instructions.

He also argues that there is insufficient evidence supporting his conviction for

aggravated battery and that there is a clerical error on the abstract of judgment.

Finding no error other than the clerical error on the abstract of judgment, we

affirm but remand with instructions to correct the abstract of judgment.

Facts [2] In June 2014, Bedford had fallen on hard times, with no employment and no

place to live. His sister, Jenny Bedford, and her long-time boyfriend, David

Dunigan, allowed Bedford to stay in the sunroom in their house. David and

Jenny’s daughter, A.D., also lived in the house, and her friend, E.C., would

come over often. In June 2014, both A.D. and E.C. were twelve years old.

[3] From the time he moved in, Bedford would make inappropriate sexual

comments to E.C. He repeatedly told her that she was cute, that she was hot,

“and that he was gonna do her.” Tr. p. 32. He also invited her to join him in

the sunroom so that he could sleep with her. When Dunigan learned of these

comments, he told Bedford to stop, and called the police, but the police did not

take action.

1 Ind. Code § 35-42-2-1.5. 2 I.C. § 35-42-4-6(b).

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 2 of 12 [4] On one occasion in June 2014, A.D. and E.C. were on the front porch when

Bedford approached. He again told E.C. that “he was gonna do” her, and A.D.

told him “that’s nasty.” Id. at 34. Bedford responded: “what are you talking

about, I could turn incest and do you any minute.” Id. A.D went inside and

told her mother what Bedford had said, and Jenny told Dunigan. Dunigan

intended to confront Bedford about the comments and tell him to leave, but

Bedford had left the house.

[5] On June 24, 2014, Dunigan walked into the sunroom and asked Bedford

whether he had made the incest comment to A.D. Bedford confirmed that he

had, but said “words are words.” Id. at 75. Dunigan told Bedford to leave

immediately, but Bedford believed that he had a right to stay for thirty days.

Bedford told Dunigan to call the cops. Dunigan said, “if the cops give you

those thirty days . . . I’m going to stay out [here] with you every day and every

night.” Id. at 76. Dunigan told him that he could not be around Dunigan’s

kids anymore. Bedford told Dunigan that he was going to force A.D. to

perform oral sex on him and force Dunigan to watch. Id.

[6] The two men argued back and forth. Then, Bedford said, “oh no bro,” id. at

78, and pushed Dunigan against the wall. Dunigan pushed him back, and the

two began to fight. Bedford then picked up a stapler and hit Dunigan on the

head, twice. Dunigan later recounted, “Instantly had my eyes full of blood,

couldn’t see nothin’.” Id. at 79. Bedford got on Dunigan’s back, put his arm

around Dunigan’s neck, and began choking him. Dunigan was able to stand up

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 3 of 12 and ram Bedford into a wall. Bedford then walked out of the house, pushing

Jenny and A.D. as he left.

[7] The police arrived shortly thereafter and called an ambulance for Dunigan. At

the hospital, he required thirteen staples to close the wound on his head.

[8] On July 29, 2014, the State charged Bedford with aggravated battery, a Class B

felony; battery by means of a deadly weapon, a Class C felony; child

solicitation, as a Class C and Class D felony; battery resulting in bodily injury,

as a Class A misdemeanor and a Class D felony; and two counts of battery, a

Class B misdemeanor. Following his June 29, 2015, trial, the jury found

Bedford guilty of aggravated battery, battery by means of a deadly weapon, and

both child solicitation counts, but not guilty of the remaining charges.

[9] At his trial, Bedford sought to have his mother testify that Dunigan had

previously kicked a cousin out of his house and then stolen her property, and

Bedford attempted to make an offer of proof to this effect. Dunigan denied the

allegation, and the trial court excluded this evidence. Bedford also tendered

several self-defense instructions; the trial court gave two of these instructions

regarding defense of one’s person, but did not give instructions regarding

defense of one’s property.

[10] On August 5, 2015, the trial court sentenced Bedford to six years imprisonment

for aggravated battery, and one-year sentences suspended to probation for each

child solicitation conviction. Although the trial court stated at the sentencing

hearing that it was vacating the conviction for battery by means of a deadly

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 4 of 12 weapon out of double jeopardy concerns, that ruling was not reflected on the

abstract of judgment, which instead lists that conviction as being merged with

the conviction for aggravated battery. Bedford now appeals.

Discussion and Decision [11] Bedford has four arguments on appeal. First, he argues that the trial court erred

by excluding evidence that Dunigan evicted a tenant and stole her property.

Second, he argues that the evidence is insufficient to support his aggravated

battery conviction. Third, he argues that the trial court erred by rejecting some

of his proposed final instructions on self-defense. Finally, he argues that the

case should be remanded so that the abstract of judgment can be corrected to

show that his conviction for battery by means of a deadly weapon was vacated.

I. Excluded Evidence [12] Bedford sought to introduce evidence that Dunigan evicted a previous tenant

and stole her property. He argues that this evidence should have been admitted

under Indiana Evidence Rule 404(b)(2), which provides an exception to the

general rule that character evidence is inadmissible, stating that evidence of a

wrong “may be admissible for . . . proving motive, opportunity, intent,

preparation, plan, knowledge, identity, absence of mistake, or lack of mistake.”

Bedford also points to Evidence Rule 616: “Evidence that a witness has a bias,

prejudice, or interest for or against any party may be used to attack the

credibility of the witness.” Finally, although he did not raise this argument at

trial, he argues that the exclusion of this evidence violated his rights under the

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 5 of 12 Sixth Amendment to the United States Constitution, alleging that he was

unable to effectively cross-examine Dunigan or present a defense without this

evidence.

[13] The trial court has broad discretion in ruling on the admission or exclusion of

evidence, and its ruling will be disturbed only if it is clearly against the logic,

facts, and circumstances presented. Gutierrez v. State, 961 N.E.2d 1030, 1034

(Ind. Ct. App. 2012). Moreover, even if the trial court erroneously admits or

excludes evidence, we will not reverse if the admission or exclusion was

harmless error. Id. A claim of error in the admission or exclusion of evidence

will not prevail on appeal unless a substantial right of the party is affected. Id.

[14] The State advances a number of responses for why this evidence was properly

excluded by the trial court, and we find one dispositive: this evidence was not

relevant. Indiana Evidence Rule 402 says that irrelevant evidence is not

admissible. “Evidence is relevant if: (a) it has any tendency to make a fact more

or less probable than it would be without the evidence; and (b) the fact is of

consequence in determining the action.” Ind. Evid. Rule 401.

[15] Since his initial encounters with police, Bedford has admitted that he struck

Dunigan. His entire defense was based on a theory of self-defense. The facts

that were of consequence related to who initiated the confrontation, who

escalated the confrontation, and whether Bedford used excessive or

unreasonable force during the confrontation. Even if we grant the truth of

Bedford’s allegations—and we note that they were adamantly denied, during

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 6 of 12 the offer of proof, by Dunigan, and would have rested solely on hearsay

testimony from Bedford’s mother—that Dunigan had an ulterior motive to evict

Bedford, that would not justify Bedford pushing Dunigan, nor would it

influence the determination of whether Bedford unreasonably escalated the

fight by beating Dunigan with a stapler. In short, whether Dunigan had

previously evicted a tenant is of no consequence, it was irrelevant to this case,

and evidence regarding this allegation was properly excluded.

[16] As for Bedford’s Sixth Amendment argument, he acknowledges that, because

he did not raise it to the trial court, he must establish that fundamental error

occurred. Fundamental error is an extremely narrow exception to the waiver

rule where the defendant faces the heavy burden of showing that the alleged

errors are so prejudicial to the defendant’s rights as to make a fair trial

impossible. Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014).

[17] Although the right to present a defense, which includes the right to present the

defendant’s version of the facts, is of the utmost importance, it is not absolute.

Marley v. State, 747 N.E.2d 1123, 1132 (Ind. 2001). “[T]he accused, as is

required of the State, must comply with established rules of procedure and

evidence designed to assure both fairness and reliability in the ascertainment of

guilt and innocence.” Id. (citing Chambers v. Mississippi, 410 U.S. 284, 302

(1973)).

[18] One of our established rules of evidence is Indiana Evidence Rule 402, which

prohibits the admission of irrelevant evidence. As discussed above, the

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 7 of 12 evidence Bedford sought to admit was irrelevant and was properly excluded.

Therefore, his Sixth Amendment right to present a defense was not violated.

II. Insufficiency of the Evidence [19] Bedford argues that there is not sufficient evidence supporting his conviction for

aggravated battery. Specifically, he argues that the State failed to rebut his

theory of self-defense and that the State did not prove that Bedford’s attack

created a substantial risk of death or caused serious permanent disfigurement or

protracted loss or impairment of a bodily member or organ. I.C. § 35-42-2-1.5.

[20] When reviewing the sufficiency of the evidence supporting a conviction, we will

neither reweigh the evidence nor assess witness credibility. Harbert v. State, 51

N.E.3d 267, 275 (Ind. Ct. App. 2016). We will consider only the evidence

supporting the judgment and any reasonable inferences that may be drawn

therefrom, and we will affirm if a reasonable trier of fact could have found the

defendant guilty beyond a reasonable doubt. Id. Additionally, when a

defendant claims that the evidence was insufficient to rebut his self-defense

claim, the standard of review is the same as the sufficiency standard. Shoultz v.

State, 995 N.E.2d 647, 660 (Ind. Ct. App. 2013).

[21] Bedford’s sufficiency argument regarding self-defense is unavailing for several

reasons. First, a person claiming self-defense is required to show, among other

things, that he did not provoke, instigate, or participate willingly in the

violence. Shoultz, 995 N.E.2d at 660. Here, the jury heard evidence that

Bedford initiated the physical confrontation by pushing Dunigan before

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 8 of 12 Dunigan pushed him. This fact alone would be sufficient to rebut Bedford’s

self-defense claim.

[22] Second, Bedford told Dunigan’s twelve-year-old daughter that he would “turn

incest” and have sex with her, tr. p. 34, and then told Dunigan that he was

going to make Dunigan’s daughter perform oral sex while Dunigan watched.

Id. at 76. Thus, even if Dunigan had pushed Bedford first, Bedford still would

not be justified in using self-defense because he provoked the confrontation.

[23] Bedford’s argument regarding serious permanent disfigurement likewise fails.

A permanent disfigurement is a continuing or enduring change that makes

something less complete, perfect, or beautiful in appearance or character.

Cornelious v. State, 988 N.E.2d 280, 283 (Ind. Ct. App. 2013). Here, Bedford

caused a serious gash that covered Dunigan in blood and required thirteen

staples to close. Dunigan was left with a scar on top of his bald head. This is

sufficient evidence that Dunigan was permanently disfigured, and therefore

there was sufficient evidence supporting this element of the aggravated battery

statute.

III. Jury Instructions [24] Jury instruction is a matter within the trial court’s sound discretion, and is a

determination to which we grant “great deference.” Cline v. State, 726 N.E.2d

1249, 1256 (Ind. 2000). In reviewing a trial court’s decision to give or refuse

tendered instructions, we consider (1) whether the instruction correctly states

the law; (2) whether there was evidence in the record to support the giving of

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 9 of 12 the instruction; and (3) whether the substance of the tendered instruction is

covered by other instructions that are given. Chambers v. State, 734 N.E.2d 578,

580 (Ind. 2000).

[25] Under Indiana law, a citizen is permitted to use force in self-defense in certain

scenarios. Ind. Code § 35-41-3-2. The trial court instructed the jury on

subsection (c), which permits a person to use reasonable force against any other

person to protect himself from what he reasonably believes to be the imminent

use of unlawful force. I.C. § 35-41-3-2(c); Tr. p. 331.

[26] Bedford also requested a self-defense instruction based on Indiana Code section

35-41-3-2(d), which provides the following:

A person is justified in using reasonable force, including deadly force, against any other person; and does not have a duty to retreat; if the person reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle.

He also tendered a number of instructions that defined a dwelling, a tenant, and

a rental unit. He sought to argue to the jury that he was defending his

“dwelling”—the sunroom in Dunigan’s house—from Dunigan’s unlawful

entry.

[27] A defendant in a criminal case is entitled to have the jury instructed on any

theory of defense that has some foundation in the evidence. Howard v. State,

755 N.E.2d 242, 247 (Ind. Ct. App. 2001). However, a trial court does not err

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 10 of 12 by refusing to instruct the jury on a theory of self-defense if that theory has no

foundation in the evidence. Id. at 248.

[28] There was no evidence in the record that Bedford used force to protect his

dwelling. The sunroom of Dunigan’s home is a part of Dunigan’s dwelling, not

Bedford’s. Both Dunigan and Jenny testified that Bedford paid no rent and that

he was invited to stay in the sunroom because he had no other place to go.

Moreover, it is unclear to us what “unlawful entry” Bedford thinks he was

terminating—Dunigan did not commit any unlawful entry by walking into his

own sunroom.

[29] Bedford was unemployed and homeless and was given a place to stay by family

members. He began making illicit sexual comments to the young daughter of

the homeowner and the daughter’s young friend. When asked to leave,

Bedford told Dunigan that he would force Dunigan’s daughter to perform oral

sex while Dunigan watched, and then physically assaulted him. This is not the

type of behavior our legislature intended to sanction by enacting Indiana Code

section 35-41-3-2(d), and the trial court did not err by refusing this tendered

instruction.

IV. The Abstract of Judgment [30] Both parties agree that the abstract of judgment incorrectly states that the

conviction for battery by means of a deadly weapon was merged into the

conviction for aggravated battery. At the sentencing hearing, the trial court

stated that it was vacating that conviction. We agree with Bedford that the

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 11 of 12 abstract of judgment should be corrected, and we remand for that limited

purpose.

[31] The judgment of the trial court is affirmed and remanded with instructions to

correct the abstract of judgment to show that the conviction for battery by

means of a deadly weapon was vacated.

Vaidik, C.J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 84A01-1508-CR-1185 | September 1, 2016 Page 12 of 12