Wolf v. State
| Decision Date | 05 May 2017 |
| Docket Number | Court of Appeals Case No. 10A01-1607-CR-1560 |
| Citation | 76 N.E.3d 911 |
| Parties | Melvin WOLF, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
Attorney for Appellant: Larry O. Wilder, Jeffersonville, Indiana.
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Matthew B. MacKenzie, Deputy Attorney General, Indianapolis, Indiana.
[1] Melvin Wolf appeals his conviction of Class A misdemeanor battery.1 He argues the evidence was insufficient to sustain his conviction.2 We affirm.
Indiana, to watch his adult son, Patrick, participate in a midget car race. During the race, another driver, Kevin Blue, collided with Patrick, impeding his progress in the race. Wolf observed the collision during the race. Blue subsequently beat Patrick in the race.
[3] After the race finished, Blue drove to the weigh-in area of the racing pit and exited his vehicle. Wolf moved from the bleacher area where he had been watching and made his way to the racing pits to see Patrick. Wolf had a pit pass that allowed him access to the racing pits. On the way to meet his son, Wolf saw Blue in the weigh-in area. Wolf approached Blue and called him profane names. Blue turned around and told Wolf to "get out of [his] face," (Tr. at 25 ), but Wolf continued yelling profanities and then punched Blue. A scuffle ensued until both parties were pulled apart. Another race driver, Logan Arnold, pulled off the race track and exited his vehicle just as Wolf and Blue began fighting. Arnold "heard screaming, looked over," and saw Wolf and Blue on the ground. (Id . at 49.) He saw Wolf "on top of [Blue]." (Id .)
[4] After Wolf and Blue were pulled apart, Wolf went to Patrick's pit area. A race official approached Wolf and informed him he was being suspended for three races for hitting someone. Wolf then walked to his car and left the speedway with his wife. Arnold followed Wolf to his vehicle, wrote down Wolf's license plate number, and called the police.
[5] In response to the call, Officer Scott Johns of the Clark County Sheriff's Office arrived at the race track. Johns observed "swelling, redness, and an abrasion" to Blue's nose, and a "softball size knot in the center of [Blue's] back." (App. Vol. II at 12.) Blue told Officer Johns he was standing in the weigh-in area after the race "talking with those around him when he turned around and [an] older heavy set man punched him in the nose causing him to fall flat on his back." (Id .) Per Blue's account in the report, the man "got on top of him and continued to punch him until the other people standing around pulled the suspect off." (Id .) Blue indicated he had never seen the man before, but several others identified the person who attacked Blue as Wolf.
[6] Blue went to the Saint Catherine Regional Hospital to receive treatment for his injuries. As a result of the altercation, Blue sustained a bruised, bloody nose and a lump on his lower back. Blue underwent CT scans
of his face and lumbar spine, and he received an ice pack and pain medication. Officer Johns met with Blue at the hospital and photographed Blue's injuries. On June 7, 2013, the State charged Wolf with Class A misdemeanor battery.
[7] On June 9, 2016, the trial court held a bench trial. The trial court heard testimony from Officer Johns, Blue, Arnold, and Wolf. When Blue testified, he again stated Wolf punched him in the nose, but denied "fall[ing] flat on [his] back," as written in Officer Johns' police report. (Tr. at 40.) Wolf's counsel questioned Blue on the inconsistency between Blue's testimony and Blue's prior statement at an August 6, 2015, deposition3 wherein Blue verified the accuracy of the police report stating Blue "[fell] flat on his back." (Id. at 40-41.) Wolf's counsel also noted other inconsistencies between Blue's testimony and his prior statements at the deposition, such as Blue's testimony that he put Wolf in a "choke-hold." (Id. at 43.)
[8] Wolf asserted self-defense. Wolf testified he approached Blue, but only to "call him a dirty name." (Id. at 65.) Wolf admitted he hit Blue, but he claimed he did so only after Blue grabbed his shirt. Wolf's counsel moved for judgment on the evidence, arguing Blue was the aggressor because he grabbed Wolf's shirt and Wolf had the right to defend himself.
[9] At the conclusion of the bench trial, the court denied Wolf's motion for judgment on the evidence, rejected Wolf's self-defense claim, and found Wolf guilty of Class A misdemeanor battery. The court sentenced Wolf to six months and suspended that time to unsupervised probation.
[10] Wolf argues the State presented insufficient evidence to negate his claim of self-defense beyond a reasonable doubt. Specifically, he argues (1) the trial court erred in finding his act of calling Blue names constituted provocation, and (2) Blue's testimony was incredibly dubious because it differed from the original police report.
[11] Our standard for reviewing a challenge to the sufficiency of evidence to rebut a claim of self-defense is the same standard used for any claim of insufficient evidence. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). We neither reweigh the evidence nor judge the credibility of the witnesses. Adetokunbo v. State , 29 N.E.3d 1277, 1280 (Ind. Ct. App. 2015). We consider only the probative evidence and reasonable inferences supporting the trial court's decision. Id. "A conviction will be affirmed if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt." Id. at 1280-81.
[12] To prove Wolf committed Class A misdemeanor battery, the State needed to present evidence Wolf "knowingly or intentionally touche[d] another person in a rude insolent, or angry manner" and it "result[ed] in bodily injury to any other person." Ind. Code § 35-42-2-1(a)(1)(A) (2012). "Evidence of touching, however slight, is sufficient to support a conviction for battery." Adetokunbo , 29 N.E.3d at 1281.
[13] "A valid claim of self-defense is legal justification for an otherwise criminal act." Wallace, 725 N.E.2d at 840. "A person is justified in using reasonable force against any other person to protect the person from what the person reasonably believes to be the imminent use of unlawful force." Ind. Code § 35-41-3-2(c). To prevail on a claim of self-defense, a defendant must show 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 v. State , 770 N.E.2d 799, 800 (Ind. 2002) ; Ind. Code § 35-41-3-2.
[14] "When a claim of self-defense is raised and finds support in the evidence, the State bears the burden of negating at least one of the necessary elements." King v. State, 61 N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied . "The State may meet this burden by rebutting the defense directly, by affirmatively showing the defendant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief." Id. If a defendant is convicted despite his claim of self-defense, we will reverse only if no reasonable person could say that self-defense was negated beyond a reasonable doubt. Wilson , 770 N.E.2d at 801.
[15] Wolf argues Blue's testimony at trial was "incredibly dubious," (Appellant's Br. at 14), because it "changed dramatically from the date of the incident to the trial." (Id . at 15.) As an example, Wolf points to Blue's testimony at trial as being inconsistent with his prior statements about who fell to the ground first after Wolf "sucker punched" him. (Id. )
[16] The incredible dubiosity rule allows the appellate court to impinge on the fact-finder's assessment of witness credibility when the testimony at trial was "so contradictory that the verdict reached would be inherently improbable." Moore v. State , 27 N.E.3d 749, 751 (Ind. 2015). "For the incredible dubiosity rule to apply, the evidence presented must be so unbelievable, incredible, or improbable that no reasonable person could ever reach a guilty verdict based upon that evidence alone." Id. "Incredible dubiosity is a difficult standard to meet, requiring ambiguous, inconsistent testimony that ‘runs counter to human experience.’ " Carter v. State , 44 N.E.3d 47, 52 (Ind. Ct. App. 2015). There must be: (1) a sole testifying witness; (2) whose testimony is inherently contradictory, equivocal, or the result of coercion; and (3) a complete absence of circumstantial evidence. Moore , 27 N.E.3d at 756. It is well-settled that "discrepancies between a witness's trial testimony and earlier statements made to police and in depositions do not render such testimony ‘incredibly dubious.’ " Holeton v. State , 853 N.E.2d 539, 541-42 (Ind. Ct. App. 2006).
[17] Here, Blue's testimony is not incredibly dubious. First, Blue's testimony was not inherently contradictory. While Blue's trial testimony varied slightly from his statements to police as to who fell to the ground first, it did not change materially. At trial, Blue still maintained that Wolf approached him from behind, started yelling at him, and punched him. Second, there was not a complete lack of circumstantial evidence—Officer Johns documented Blue's injuries and Arnold testified that Wolf was on top of Blue when Arnold exited his car. Thus, the incredibly dubiosity rule is inapplicable here. See Moore , 27 N.E.3d at 759 ().
[18] Wolf claims he had a "constitutionally protected right to call Blue a ‘dirty M-F'er’ " and "a right to strike Blue in self-defense after Blue grabbed him by his shirt." (Appellant's Br. at 10.) Wolf cites Tisdale v....
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