MEMORANDUM DECISION Feb 11 2015, 10:09 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any 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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Terry Sowell February 11, 2015
Appellant-Defendant, Court of Appeals Cause No. 49A05-1407-CR-298 v. Appeal from the Marion Superior Court Criminal Division 8 The Honorable Amy Jones, Judge State of Indiana, Pro Tempore Appellee-Plaintiff Case No. 49F08-1403-CM-013550
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015 Page 1 of 6 [1] Terry Sowell appeals his convictions of two counts of class A misdemeanor
Battery.1 He presents the following issue for our review: Did the State present
sufficient evidence to support his convictions?
[2] We affirm.
[3] On the evening of March 15, 2014, Sowell was at the residence he shared with
his wife and two stepchildren, twenty-year old Tamara and sixteen-year-old W.
Tamara and W. overheard Sowell shouting at their mother in the kitchen and
went to investigate. When they got to the kitchen, however, they saw that their
mother was no longer in the room, so they walked down the hallway back
toward their respective bedrooms. Sowell followed them, telling them that they
were rude and disrespectful. Tamara told Sowell that he did not know what he
was talking about, and Sowell responded by throwing a hard plastic cup with
liquid at Tamara, striking her in the face and causing her pain. Tamara
responded by hitting Sowell, and Sowell then grabbed Tamara by the hair and
the two fell to the floor. Sowell began choking Tamara. When W. saw what
was happening, he grabbed a knife and stabbed Sowell twice in the back.
Sowell then got up and chased W. out of the house. When Sowell caught up
1 Ind. Code Ann. § 35-42-2-1 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular Technical Session of the 118th General Assembly).
Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015 Page 2 of 6 with W., he threw him to the ground and stuck his finger in W.’s eye, causing
pain. Sowell then got off of W., went back into the house, and told W. and
Tamara to stay out of the house.
[4] Tamara then re-entered the house to get her shoes, and W. accompanied her.
Sowell told them to call their father because he wanted to fight him. Tamara
knocked the phone out of Sowell’s hand and she and W. then ran outside with
Sowell in pursuit. Sowell began throwing things at W., including a grill, a two
by four, and a chair. The chair grazed W.’s leg. Sowell then grabbed Tamara
and pinned her to the ground. W., who had obtained another knife, then cut
Sowell’s arm, causing him to release Tamara. Tamara then got up and went to
find her mother, but by that time the police had arrived. After police spoke
with the family, Sowell was arrested.
[5] The State charged Sowell with two counts of class A misdemeanor battery, one
count listing Tamara as the victim and the other listing W. as the victim. A
bench trial was held on June 4, 2014, and Sowell was found guilty as charged.
Sowell now appeals.
[6] Sowell argues that the State presented insufficient evidence to support his
convictions. In reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.
State, 911 N.E.2d 601 (Ind. Ct. App. 2009). Instead, we consider only the
evidence supporting the conviction and the reasonable inferences to be drawn
therefrom. Id. If there is substantial evidence of probative value from which a
Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015 Page 3 of 6 reasonable trier of fact could have drawn the conclusion that the defendant was
guilty of the crime charged beyond a reasonable doubt, then the judgment will
not be disturbed. Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct. App. 2008). It
is not necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144 (Ind.
2007).
[7] In order to convict Sowell of both counts of class A misdemeanor battery as
charged, the State was required to prove that he knowingly touched both
Tamara and W. in a rude, insolent, or angry manner and that the touching
resulted in bodily injury. See I.C. § 35-42-2-1. On appeal, Sowell challenges
only the intent element of the offenses; that is, he asserts that the State
presented insufficient evidence to prove that he acted knowingly.
[8] Intent is a mental state and, absent an admission by the defendant, the trier of
fact must resort to the reasonable inferences drawn from both the direct and
circumstantial evidence to determine whether the defendant had the requisite
intent to commit the offense in question. Stokes v. State, 922 N.E.2d 758 (Ind.
Ct. App. 2010), trans. denied. A person’s conduct is knowing “if, when he
engages in the conduct, he is aware of a high probability that he is doing so.”
Ind. Code Ann. § 35-41-2-2 (West, Westlaw current with all 2014 Public Laws
of the 2014 Second Regular Session and Second Regular Technical Session of
the 118th General Assembly).
Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015 Page 4 of 6 [9] Sowell argues that he could not have acted knowingly because he was being
physically attacked by Tamara and W. According to Sowell, “[w]hen one is
under assault by others, it cannot be argued that he acts knowingly when he is
being stabbed in the back.” Appellant’s Brief at 6. This argument is nothing
more than a request to reweigh the evidence and judge the credibility of
witnesses. The evidence favorable to the judgment establishes that Sowell
initiated the altercation with Tamara by throwing a cup at her face. When
Tamara hit him back, he grabbed her hair and began choking her when they fell
to the ground. W. then came to his sister’s defense by stabbing Sowell in the
back. Sowell then got up and chased W. outside, where he threw him to the
ground and poked him in the eye. It was certainly reasonable for the trial court
to infer from these actions that Sowell acted knowingly.
[10] Moreover, even if Sowell had acted in response to being attacked, this would
not mean that he did not act knowingly; rather, it would raise the possibility
that his actions were justified as self-defense. Sowell concedes that he is
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MEMORANDUM DECISION Feb 11 2015, 10:09 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any 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 Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Terry Sowell February 11, 2015
Appellant-Defendant, Court of Appeals Cause No. 49A05-1407-CR-298 v. Appeal from the Marion Superior Court Criminal Division 8 The Honorable Amy Jones, Judge State of Indiana, Pro Tempore Appellee-Plaintiff Case No. 49F08-1403-CM-013550
Friedlander, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015 Page 1 of 6 [1] Terry Sowell appeals his convictions of two counts of class A misdemeanor
Battery.1 He presents the following issue for our review: Did the State present
sufficient evidence to support his convictions?
[2] We affirm.
[3] On the evening of March 15, 2014, Sowell was at the residence he shared with
his wife and two stepchildren, twenty-year old Tamara and sixteen-year-old W.
Tamara and W. overheard Sowell shouting at their mother in the kitchen and
went to investigate. When they got to the kitchen, however, they saw that their
mother was no longer in the room, so they walked down the hallway back
toward their respective bedrooms. Sowell followed them, telling them that they
were rude and disrespectful. Tamara told Sowell that he did not know what he
was talking about, and Sowell responded by throwing a hard plastic cup with
liquid at Tamara, striking her in the face and causing her pain. Tamara
responded by hitting Sowell, and Sowell then grabbed Tamara by the hair and
the two fell to the floor. Sowell began choking Tamara. When W. saw what
was happening, he grabbed a knife and stabbed Sowell twice in the back.
Sowell then got up and chased W. out of the house. When Sowell caught up
1 Ind. Code Ann. § 35-42-2-1 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular Technical Session of the 118th General Assembly).
Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015 Page 2 of 6 with W., he threw him to the ground and stuck his finger in W.’s eye, causing
pain. Sowell then got off of W., went back into the house, and told W. and
Tamara to stay out of the house.
[4] Tamara then re-entered the house to get her shoes, and W. accompanied her.
Sowell told them to call their father because he wanted to fight him. Tamara
knocked the phone out of Sowell’s hand and she and W. then ran outside with
Sowell in pursuit. Sowell began throwing things at W., including a grill, a two
by four, and a chair. The chair grazed W.’s leg. Sowell then grabbed Tamara
and pinned her to the ground. W., who had obtained another knife, then cut
Sowell’s arm, causing him to release Tamara. Tamara then got up and went to
find her mother, but by that time the police had arrived. After police spoke
with the family, Sowell was arrested.
[5] The State charged Sowell with two counts of class A misdemeanor battery, one
count listing Tamara as the victim and the other listing W. as the victim. A
bench trial was held on June 4, 2014, and Sowell was found guilty as charged.
Sowell now appeals.
[6] Sowell argues that the State presented insufficient evidence to support his
convictions. In reviewing a challenge to the sufficiency of the evidence, we
neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v.
State, 911 N.E.2d 601 (Ind. Ct. App. 2009). Instead, we consider only the
evidence supporting the conviction and the reasonable inferences to be drawn
therefrom. Id. If there is substantial evidence of probative value from which a
Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015 Page 3 of 6 reasonable trier of fact could have drawn the conclusion that the defendant was
guilty of the crime charged beyond a reasonable doubt, then the judgment will
not be disturbed. Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct. App. 2008). It
is not necessary that the evidence overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144 (Ind.
2007).
[7] In order to convict Sowell of both counts of class A misdemeanor battery as
charged, the State was required to prove that he knowingly touched both
Tamara and W. in a rude, insolent, or angry manner and that the touching
resulted in bodily injury. See I.C. § 35-42-2-1. On appeal, Sowell challenges
only the intent element of the offenses; that is, he asserts that the State
presented insufficient evidence to prove that he acted knowingly.
[8] Intent is a mental state and, absent an admission by the defendant, the trier of
fact must resort to the reasonable inferences drawn from both the direct and
circumstantial evidence to determine whether the defendant had the requisite
intent to commit the offense in question. Stokes v. State, 922 N.E.2d 758 (Ind.
Ct. App. 2010), trans. denied. A person’s conduct is knowing “if, when he
engages in the conduct, he is aware of a high probability that he is doing so.”
Ind. Code Ann. § 35-41-2-2 (West, Westlaw current with all 2014 Public Laws
of the 2014 Second Regular Session and Second Regular Technical Session of
the 118th General Assembly).
Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015 Page 4 of 6 [9] Sowell argues that he could not have acted knowingly because he was being
physically attacked by Tamara and W. According to Sowell, “[w]hen one is
under assault by others, it cannot be argued that he acts knowingly when he is
being stabbed in the back.” Appellant’s Brief at 6. This argument is nothing
more than a request to reweigh the evidence and judge the credibility of
witnesses. The evidence favorable to the judgment establishes that Sowell
initiated the altercation with Tamara by throwing a cup at her face. When
Tamara hit him back, he grabbed her hair and began choking her when they fell
to the ground. W. then came to his sister’s defense by stabbing Sowell in the
back. Sowell then got up and chased W. outside, where he threw him to the
ground and poked him in the eye. It was certainly reasonable for the trial court
to infer from these actions that Sowell acted knowingly.
[10] Moreover, even if Sowell had acted in response to being attacked, this would
not mean that he did not act knowingly; rather, it would raise the possibility
that his actions were justified as self-defense. Sowell concedes that he is
precluded from raising self-defense on appeal because it was not offered as a
defense at trial. Nevertheless, his sufficiency argument is a thinly-veiled
attempt to do just that—although he cites no authority and develops no cogent
analysis in support of a self-defense claim. See Smith v. State, 822 N.E.2d 193,
202-03 (Ind. Ct. App. 2005) (“a party waives any issue raised on appeal where
the party fails to develop a cogent argument or provide adequate citation to
authority and portions of the record”), trans. denied. Waiver notwithstanding,
we note that the defense of self-defense is not available when the defendant “has
Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015 Page 5 of 6 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 (West, Westlaw current with all
2014 Public Laws of the 2014 Second Regular Session and Second Regular
Technical Session of the 118th General Assembly). See also Weedman v. State,
21 N.E.3d 873 (Ind. 2014). The evidence set forth above establishes that Sowell
was the initial aggressor in this incident, and there is no indication that he
attempted to withdraw from the encounter or communicated his intent to do so.
For all of these reasons, Sowell’s convictions were supported by sufficient
evidence.
[11] Judgment affirmed.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1407-CR-298 | February 11, 2015 Page 6 of 6