Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Sep 30 2014, 9:55 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RANDY M. FISHER GREGORY F. ZOELLER Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma & Terrill Fort Wayne, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TARAINKA A. CAIN, ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-1402-CR-63 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D06-1306-FD-699
September 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
Appellant-Defendant Tarainka A. Cain appeals her convictions for Class D felony
criminal recklessness, Class A misdemeanor battery, Class B felony aggravated battery,
and Class C felony criminal recklessness. Cain struck Toesha Scott in the head with a glass
beer bottle, breaking the bottle and severely lacerating Scott’s face. Cain argues that
Appellee-Plaintiff the State of Indiana failed to present sufficient evidence to negate her
claim of self-defense. Finding that Cain and Scott were engaged in mutual combat when
Cain struck Scott with the beer bottle, we conclude that the State sufficiently negated
Cain’s self-defense claim. Cain also argues that her convictions violate Indiana’s
prohibition against double jeopardy. Finding each of Cain’s convictions to be supported
by the same alleged act—that of striking Scott with a beer bottle—we conclude that Indiana
common law prohibits Cain’s convictions for Class D felony criminal recklessness, Class
A misdemeanor battery, and Class C felony criminal recklessness. Only Cain’s Class B
felony aggravated battery conviction can stand. We affirm in part and vacate in part.
FACTS AND PROCEDURAL HISTORY
On June 15, 2013, Cain and Scott attended a bridal shower for Scott’s cousin
Candace at a home located on Gay Street in Fort Wayne. Scott’s sister, Tekee, was also in
attendance. Following the bridal shower, the attendees all walked to the nearby Veterans
of Foreign Wars post (“the VFW”) for drinks. At some point, Scott and Tekee got into a
physical altercation in the VFW bathroom. Cain intervened and separated Scott and Tekee.
As the three exited the bathroom, Scott asked Cain why she had intervened, and a fight
between Scott and Cain ensued. Once the fight was broken up, everyone was asked to
2 leave the VFW.
Back at the Gay Street home, Scott apologized to Candace for fighting with Cain
and getting everyone kicked out of the VFW. Cain interrupted Scott’s apology from
several feet away, stating, “I’m going to beat you’re a** again.” Tr. p. 180. Scott then
turned and approached Cain, clapping her hands while stating, “[S]ounds like you would
beat my a**, you going to beat my a**[.] What is your issue?” Tr. p. 181. Another fight
between Scott and Cain ensued, during which Cain struck Scott in the head with a glass
beer bottle, breaking the bottle and severely lacerating Scott’s face. Scott fell to the ground,
and Cain fled the scene.
On June 20, 2013, the State charged Cain with Count I, Class D felony criminal
recklessness; and Count II, Class A misdemeanor battery. On July 12, 2013, the State
added Count III, Class B felony aggravated battery; and Count IV, Class C felony criminal
recklessness. On September 26, 2013, the State added Count V, Class C felony criminal
recklessness, and, on October 7, 2013, the State dismissed Count IV. A jury trial was held
on January 8, 2013, during which Cain argued that she struck Scott with the beer bottle in
self-defense. The jury found Cain guilty as charged. On February 5, 2014, the trial court
sentenced Cain to one year and one hundred eighty-three days on Count I, one year on
Count II, ten years with six years executed on Count III, and four years on Count V. All
of Cain’s sentences were ordered to be served concurrently, for an aggregate sentence of
ten years with six years executed.
DISCUSSION AND DECISION
I. Self-Defense 3 Cain argues that the State presented insufficient evidence to negate her claim of self-
defense.
A valid claim of defense of oneself or another person is legal justification for an otherwise criminal act. Ind. Code § 35-41-3-2(a); Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). In order to prevail on such a claim, 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) had a reasonable fear of death or great bodily harm. McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998). 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. Id. If a defendant is convicted despite his claim of self-defense, this Court will reverse only if no reasonable person could say that self-defense was negated by the State beyond a reasonable doubt. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999). … 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 of the evidence claim. Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999). We neither reweigh the evidence nor judge the credibility of witnesses. Id. 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.
Wilson v. State, 770 N.E.2d 799, 800-01 (Ind. 2002).
Cain acknowledges that she struck Scott with the beer bottle while the two were
engaged in “mutual combat” but claims she and Scott only “began fighting each other …
after Ms. Scott aggressively approached Ms. Cain, poking her and making hand gestures
in her face.” Appellant’s Br. p. 14. “[A] mutual combatant, whether or not the initial
aggressor, must declare an armistice before he or she may claim self-defense.” Wilson v.
State, 770 N.E.2d 799, 801 (Ind. 2002); Ind. Code § 35-41-3-2(g)(3). Cain does not assert,
nor does the record reveal, that she communicated the requisite desire to stop fighting
before she struck Scott with the beer bottle. Therefore, we conclude that a reasonable
4 person could say that self-defense was negated by the State beyond a reasonable doubt.
See Wilson, 770 N.E.2d at 801.
II. Double Jeopardy
Cain also argues that her convictions violate Indiana’s prohibition against double
jeopardy. Whether convictions violate double jeopardy is a pure question of law, which
we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind.
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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any Sep 30 2014, 9:55 am court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
RANDY M. FISHER GREGORY F. ZOELLER Deputy Public Defender Attorney General of Indiana Leonard, Hammond, Thoma & Terrill Fort Wayne, Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
TARAINKA A. CAIN, ) ) Appellant-Defendant, ) ) vs. ) No. 02A03-1402-CR-63 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D06-1306-FD-699
September 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge CASE SUMMARY
Appellant-Defendant Tarainka A. Cain appeals her convictions for Class D felony
criminal recklessness, Class A misdemeanor battery, Class B felony aggravated battery,
and Class C felony criminal recklessness. Cain struck Toesha Scott in the head with a glass
beer bottle, breaking the bottle and severely lacerating Scott’s face. Cain argues that
Appellee-Plaintiff the State of Indiana failed to present sufficient evidence to negate her
claim of self-defense. Finding that Cain and Scott were engaged in mutual combat when
Cain struck Scott with the beer bottle, we conclude that the State sufficiently negated
Cain’s self-defense claim. Cain also argues that her convictions violate Indiana’s
prohibition against double jeopardy. Finding each of Cain’s convictions to be supported
by the same alleged act—that of striking Scott with a beer bottle—we conclude that Indiana
common law prohibits Cain’s convictions for Class D felony criminal recklessness, Class
A misdemeanor battery, and Class C felony criminal recklessness. Only Cain’s Class B
felony aggravated battery conviction can stand. We affirm in part and vacate in part.
FACTS AND PROCEDURAL HISTORY
On June 15, 2013, Cain and Scott attended a bridal shower for Scott’s cousin
Candace at a home located on Gay Street in Fort Wayne. Scott’s sister, Tekee, was also in
attendance. Following the bridal shower, the attendees all walked to the nearby Veterans
of Foreign Wars post (“the VFW”) for drinks. At some point, Scott and Tekee got into a
physical altercation in the VFW bathroom. Cain intervened and separated Scott and Tekee.
As the three exited the bathroom, Scott asked Cain why she had intervened, and a fight
between Scott and Cain ensued. Once the fight was broken up, everyone was asked to
2 leave the VFW.
Back at the Gay Street home, Scott apologized to Candace for fighting with Cain
and getting everyone kicked out of the VFW. Cain interrupted Scott’s apology from
several feet away, stating, “I’m going to beat you’re a** again.” Tr. p. 180. Scott then
turned and approached Cain, clapping her hands while stating, “[S]ounds like you would
beat my a**, you going to beat my a**[.] What is your issue?” Tr. p. 181. Another fight
between Scott and Cain ensued, during which Cain struck Scott in the head with a glass
beer bottle, breaking the bottle and severely lacerating Scott’s face. Scott fell to the ground,
and Cain fled the scene.
On June 20, 2013, the State charged Cain with Count I, Class D felony criminal
recklessness; and Count II, Class A misdemeanor battery. On July 12, 2013, the State
added Count III, Class B felony aggravated battery; and Count IV, Class C felony criminal
recklessness. On September 26, 2013, the State added Count V, Class C felony criminal
recklessness, and, on October 7, 2013, the State dismissed Count IV. A jury trial was held
on January 8, 2013, during which Cain argued that she struck Scott with the beer bottle in
self-defense. The jury found Cain guilty as charged. On February 5, 2014, the trial court
sentenced Cain to one year and one hundred eighty-three days on Count I, one year on
Count II, ten years with six years executed on Count III, and four years on Count V. All
of Cain’s sentences were ordered to be served concurrently, for an aggregate sentence of
ten years with six years executed.
DISCUSSION AND DECISION
I. Self-Defense 3 Cain argues that the State presented insufficient evidence to negate her claim of self-
defense.
A valid claim of defense of oneself or another person is legal justification for an otherwise criminal act. Ind. Code § 35-41-3-2(a); Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). In order to prevail on such a claim, 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) had a reasonable fear of death or great bodily harm. McEwen v. State, 695 N.E.2d 79, 90 (Ind. 1998). 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. Id. If a defendant is convicted despite his claim of self-defense, this Court will reverse only if no reasonable person could say that self-defense was negated by the State beyond a reasonable doubt. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999). … 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 of the evidence claim. Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999). We neither reweigh the evidence nor judge the credibility of witnesses. Id. 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.
Wilson v. State, 770 N.E.2d 799, 800-01 (Ind. 2002).
Cain acknowledges that she struck Scott with the beer bottle while the two were
engaged in “mutual combat” but claims she and Scott only “began fighting each other …
after Ms. Scott aggressively approached Ms. Cain, poking her and making hand gestures
in her face.” Appellant’s Br. p. 14. “[A] mutual combatant, whether or not the initial
aggressor, must declare an armistice before he or she may claim self-defense.” Wilson v.
State, 770 N.E.2d 799, 801 (Ind. 2002); Ind. Code § 35-41-3-2(g)(3). Cain does not assert,
nor does the record reveal, that she communicated the requisite desire to stop fighting
before she struck Scott with the beer bottle. Therefore, we conclude that a reasonable
4 person could say that self-defense was negated by the State beyond a reasonable doubt.
See Wilson, 770 N.E.2d at 801.
II. Double Jeopardy
Cain also argues that her convictions violate Indiana’s prohibition against double
jeopardy. Whether convictions violate double jeopardy is a pure question of law, which
we review de novo. Rexroat v. State, 966 N.E.2d 165, 168 (Ind. Ct. App. 2012), trans.
denied. Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall
be put in jeopardy twice for the same offense.”
In Richardson v. State, 717 N.E.2d 32 (Ind. 1999), our Supreme Court concluded that two or more offenses are the same offense in violation of Article I, Section 14 if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to obtain convictions, the essential elements of one challenged offense also establish the essential elements of another challenged offense.
Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App. 2012).
Additionally, “Indiana courts have ‘long adhered to a series of rules of statutory
construction and common law that are often described as double jeopardy, but are not
governed by the constitutional test set forth in Richardson.’” Simmons v. State, 793 N.E.2d
321, 327 (Ind. Ct. App. 2003) (quoting Guyton v. State, 771 N.E.2d 1141, 1143 (Ind. 2002).
This body of common law includes conviction and punishment for a crime which consists
of the very same act as another crime for which the defendant has been convicted and
punished. Davis v. State, 770 N.E.2d 319, 324 (Ind. 2002) (finding defendant’s act of
stabbing victim could not support conviction for both Class A felony burglary and
attempted murder); Simmons, 793 N.E.2d at 327 (finding defendant’s act of striking victim
5 with a baseball bat could not support conviction for battery as both a Class C felony and
Class A misdemeanor).
Cain claims that the act alleged in support of each of her four convictions is the
same—that of striking Scott in the head with a beer bottle. The State contends that Cain
struck Scott with the bottle three times, each a separate act supporting Cain’s convictions
on Counts I, II, and III, respectively.1 We agree with Cain. Although there was evidence
before the jury that Cain struck Scott with a beer bottle three times, a review of the charging
informations and the State’s opening and closing arguments reveals that only the strike that
severely lacerated Scott’s face was presented in support of Cain’s convictions. The State
made no attempt to differentiate the other two alleged strikes as supporting separate
convictions. See Rutherford v. State, 866 N.E.2d 867, 872 (Ind. Ct. App. 2007) (discussing
such differentiation under the Richardson “same evidence” test). Only Cain’s conviction
on Count III can stand; therefore, we vacate Cain’s convictions on Counts I, II, and V.
The judgment of the trial court is affirmed in part and vacated in part.
BARNES, J., and BROWN, J., concur.
1 The State seems to concede that Cain’s conviction on Count V is a double jeopardy violation. 6