Ballard v. State

• Decision Date: 20 May 2004
• Docket Number: No. 24A01-0306-CR-226.,24A01-0306-CR-226.
• Parties: Robert O. BALLARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

808 N.E.2d 729

Robert O. BALLARD, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 24A01-0306-CR-226.

Court of Appeals of Indiana.

May 20, 2004.

Transfer Granted July 28, 2004.

Thomas M. Thompson, Smith & Thompson, Connersville, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Christopher C.T. Stephen, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant-Defendant, Robert O. Ballard (Ballard), appeals his conviction for voluntary manslaughter, a Class A felony, as a lesser included offense of Count I, murder, a felony, Ind.Code § 35-42-1-1.

We affirm, in part and reverse, in part.

ISSUES

Ballard raises two issues on appeal, which we restate as follows:

1. Whether the State presented sufficient evidence to disprove Ballard's claim of self-defense; and

2. Whether the trial court abused its discretion in sentencing Ballard to an aggravated sentence of forty years, based on Ballard's criminal history which consists entirely of offenses unrelated to the present offense.

FACTS AND PROCEDURAL HISTORY

On October 5, 2002, Ballard drove his daughter, B.S., back to her mother's house after she spent the night with him. When Ballard pulled up to Judy Smith's (Judy) home, Billy Smith Jr. (Billy), B.S.'s twenty-eight-year-old half-brother, also arrived at the house. Ballard told B.S. that he saw Billy give him "the middle finger" and that she should tell her mother what he had done. (Transcript p. 155). Ballard and Billy had a volatile relationship; in fact, Billy had fought with Ballard on several occasions. In 1997, one of these altercations resulted in Billy's conviction for battery on Ballard.

After dropping off his daughter, Ballard phoned Judy from a payphone at a local gas station. Ballard told Judy to "tell that son of a bitch son of yours not to flip____ not to give me the finger, and I'm going straight to Leann." (Tr. p. 344). Leann, Billy's ex-wife, and Billy were involved in an on-going child custody battle. When Judy confronted Billy with Ballard's allegation, he denied the incident ever happened. Billy checked the caller ID box on the telephone and left Judy's home.

Shortly thereafter, Billy arrived at Ballard's residence located at 3105 New Trenton Road, Franklin County, Indiana. Hearing fierce pounding on his front door, Ballard opened the door where he was confronted by Billy. After words were exchanged, Ballard closed the door and locked it. He went into his bedroom and retrieved his handgun from underneath his mattress. Holding the handgun in his left hand, he opened the front door again. Billy initially retreated, but then started walking towards the front door. Upon seeing Billy approach him, Ballard flinched and the gun went off, mortally wounding Billy.

Ballard immediately called 911 and informed the dispatcher that he had shot Billy and that he needed medical attention. Medical and police units were dispatched to Ballard's residence. At the same time, Ballard called Judy, stating "Judy, I shot your boy, come and get him, he's laying in the yard." (Tr. p. 351). Thereafter, Ballard placed several agitated 911 phone calls, urging a fast response from the medical unit. Sheriff Deputy Michael Johnson (Deputy Johnson) arrived at Ballard's home approximately twenty minutes after the 911 dispatch. He found Billy laying face down on Ballard's driveway. Ballard, standing on his porch, informed Deputy Johnson that he was "the one that shot him" and that he "was going to take another ass beating." (Tr. pp. 134 & 135).

On October 8, 2002, the State filed an information, charging Ballard with murder, a felony, I.C. § 35-42-1-1. On November 1, 2002, Ballard notified the State of his intent to raise a claim of self-defense during trial by filing a Notice of Self-Defense and the Use of Force to Protect One's Person or Property. On March 17 through 18, 2003, a jury trial was held. At the conclusion of the jury trial, Ballard was convicted of voluntary manslaughter, a Class A felony, as the lesser included offense of murder. On May 23, 2003, the trial court conducted a sentencing hearing. At the close of the sentencing hearing, the trial court sentenced Ballard to a term of forty years, with ten years suspended. The trial court ordered Ballard to serve his sentence at the Indiana Department of Correction.

Ballard now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

Ballard initially challenges the sufficiency of the evidence, contending the State failed to rebut his claim of self-defense. Specifically, Ballard points to his prior history with Billy as support for his contention that he had no choice but to defend himself and his property.

We review a challenge to the sufficiency of the evidence to rebut a claim of self-defense using the same standard as for any claim of insufficient evidence. Wilson v. State, 770 N.E.2d 799, 801. Accordingly, we neither reweigh the evidence nor judge the credibility of the 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. A valid claim of self-defense is a legal justification for an otherwise criminal act. I.C. § 35-41-3-2(a). 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. Wilson, 770 N.E.2d at 800. He is justified in using deadly force only if he "reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person." I.C. § 35-41-3-2(a). 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. Wilson, 770 N.E.2d at 800. The State may meet its burden by either rebutting the defense directly or relying on the sufficiency of evidence in its case-in-chief. Butler v. State, 547 N.E.2d 270, 271 (Ind.1989).

In support of his claim of self-defense, Ballard relies solely on his own testimony at trial. He testified that at the time of the offense he was sixty-three years old, in bad health, and had recently undergone knee replacement surgery. The record shows that after he heard the pounding on the door, Ballard opened the door. He stated that Billy's first words were "I'm going to beat you[r] fucking brains out and kill you, you son-of-bitch." (Tr. p. 412). He testified that at that moment he feared for his life. Although Ballard then slammed the door and locked it, Billy rammed up against the door three or four times and reiterated his threats. Hoping that Billy would leave by brandishing his handgun, Ballard informed the jury that he ran into the bedroom and retrieved the weapon. Holding the handgun in his left hand, Ballard opened up the door and noticed Billy stepping back from the door. Ballard testified that he encouraged Billy to return home and that he refused to fight him. However, he stated that Billy approached the door again and when he had his foot against the door, Ballard fell backwards and the gun went off. Ballard added that he immediately dialed 911 and then called Judy, informing her that he accidentally shot her son.

Nevertheless, in order to rebut Ballard's self-defense claim, the State presented evidence, claiming that Ballard used excessive force. Physical evidence presented at trial indicates that Ballard fired one shot at Billy while he was standing in the doorway of his residence whereas Billy was standing across the porch, approximately 7 feet away. The record reveals that Sergeant Edward Lewis (Sergeant Lewis), a crime scene investigator, unsuccessfully searched the front door for any evidence of dents or kick marks. Testimony elicited from Ballard on cross-examination establishes that prior to retrieving the gun from his bedroom, Ballard had to bypass a telephone. Furthermore, Officer Deanna Hartwell (Officer Hartwell), the Trooper Investigator, testified that Ballard never told her that Billy had threatened him. Additionally, during testimony, Judy stated that Ballard called her claiming that he had shot her son, "come and get him, he's laying in the yard." (Tr. p. 351).

It is well settled that the amount of force used to protect oneself must be proportionate to the urgency of the situation. Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind.Ct.App.1999). Where a person uses more force than is reasonably necessary under the circumstances, the right of self-defense is extinguished. Id. Here, after closing and locking the front door, Ballard could have retreated into the safety of the residence and contacted the police department for further help. Instead of calling the police department, he chose to retrieve his handgun in an attempt to encourage Billy to leave. During this altercation, Billy was shot. Therefore, based on the evidence presented, the jury could reasonably conclude that Ballard did not validly act in self-defense. See id.

Moreover, the sole evidence offered in support of his self-defense claim is Ballard's own testimony. The jury, after listening to all the evidence presented by both parties, observing the witnesses' demeanor, and judging their credibility, clearly rejected Ballard's recitation of the facts by returning a guilty verdict. Consequently, we find that there is sufficient evidence of probative value to support the conclusion of the trier-of-fact. See Wilson, 770 N.E.2d at 801

. Accordingly, we decline to disturb the verdict. See id.

II. Sentencing

Next, Ballard asserts that the trial court abused its discretion by imposing an enhanced sentence. Specifically, Ballard claims that the trial court erred by enhancing his sentence based on his prior criminal history, consisting merely of misdemeanor offenses which were all at least sixteen year...