Laura Gaye Perry v. State of Indiana (mem. dec.) ( 2020 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any Aug 31 2020, 10:11 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah K. Smith Curtis T. Hill, Jr.
Thorntown, Indiana Attorney General of Indiana
Tina L. Mann
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Laura Gaye Perry, August 31, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2986
v. Appeal from the Boone Superior
Court
State of Indiana, The Honorable Bruce E. Petit,
Appellee-Plaintiff. Judge
Trial Court Cause No.
06D02-1802-CM-243
Altice, Judge
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Case Summary
[1] Laura Gaye Perry appeals her conviction for battery, a Class B misdemeanor,
claiming that the evidence was not sufficient to negate her claim of self-
defense.
[2] We affirm.
Facts and Procedural History
[3] On November 20, 2017, at approximately 4:30 p.m., Brianna Lowery drove
Perry’s granddaughter, Savannah, 1 to Perry’s house in Lebanon for a visit.
Perry was reportedly ill that day and she had no advance notice of Lowery’s
plan to leave Savannah with her.
[4] After Savannah got out of Lowery’s vehicle, Perry walked outside and
motioned for Lowery to wait for her. As Perry approached the vehicle, Lowery
rolled down the passenger window. Perry then opened the passenger side door,
leaned into the vehicle, and put her knee on the front seat. Perry moved closer
to Lowery and began shouting at her as to why she was dropping off Savannah.
1
Savannah is the daughter of Lowery’s boyfriend.
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[5] Perry was spitting while she was yelling at Lowery, and at one point, she
grabbed Lowery’s arm and pulled her hair. In response, Lowery pushed at
Perry’s back and asked, “do you really want to grab hair?” Transcript Vol. II at
14. Perry then removed the car keys from the ignition and tossed them into an
alley.
[6] When Lowery got out of her car to retrieve the keys, Perry walked up to
Lowery, grabbed her hair, and tried to pull her to the ground. After Lowery
was able to free herself, Perry went back to her residence and Lowery called the
police.
[7] Lebanon City Police Officer Aaron Carlson responded to the call and saw
Lowery standing in the alley next to her car. The passenger and driver doors
were open, and Lowery was holding a clump of her own hair that Perry had
pulled from her head. Lowery provided a statement to Officer Carlson,
recounting the above events.
[8] Officer Carlson walked up to the residence to speak with Perry. When Perry
came to the door, Officer Carlson noticed a red mark on her left cheek, but she
did not complain of any other injuries. Perry was argumentative and verbally
abusive toward Officer Carlson and other officers who subsequently arrived at
the scene. Officer Carlson noticed that Perry smelled of alcohol, so he called
the Department of Child Services (DCS) because minor children were in Perry’s
care.
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[9] When DCS personnel arrived, Perry provided a statement to Officer Carlson,
claiming that Lowery started the altercation when Lowery called her a bitch
and pulled her hair. Perry stated that she responded by pulling Lowery’s hair
and that Lowery then shoved her to the ground.
[10] On February 2, 2018, the State charged Perry with one count of battery, a Class
B misdemeanor. Following a bench trial on July 26, 2019, Perry was found
guilty as charged and sentenced to 180 days of incarceration, all suspended,
with 365 days on probation. Perry now appeals.
Discussion and Decision
[11] Perry challenges the sufficiency of the evidence, claiming that the State failed to
rebut her claim of self-defense. Specifically, Perry claims that her conviction
must be reversed because it was Lowery who instigated the physical altercation
and that she struck Lowery only in self-defense.
[12] Self-defense is governed by Ind. Code § 35-41-3-2. A valid claim of defense of
oneself or another person is legal justification for an otherwise criminal act.
Brown v. State, 738 N.E.2d 271, 273 (Ind. 2000); Morell v. State, 933 N.E.2d 484,
491 (Ind. Ct. App. 2010). “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.” I.C. § 35-41-3-
2(c).
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[13] To prevail on a claim of self-defense, Perry must show that she: (1) was in a
place where she 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. Morell, 933 N.E.2d at 491. Once a defendant raises a claim of self-
defense, the State has the burden of negating at least one of the necessary
elements. Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). The State may
satisfy its burden by rebutting the defense directly, by affirmatively showing the
defendant did not act in self-defense, or by relying on the sufficiency of the case-
in-chief. Richardson v. State, 79 N.E.3d 958, 964 (Ind. Ct. App. 2017), trans.
denied. Whether the State has met its burden is a question for the trier of fact.
Id. The State satisfies this burden by presenting evidence of probative value
from which a reasonable trier of fact could have found that the defendant did
not validly act in self-defense and that she was guilty of the offenses charged.
Morell, 933 N.E.2d at 492.
[14] The standard for reviewing a challenge to the sufficiency of evidence to rebut a
claim of self-defense is the same as that used for any claim of insufficient
evidence. Wilson, 770 N.E.2d at 800. We neither reweigh the evidence nor
judge the credibility of witnesses. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). The evidence is sufficient if an inference may be reasonably drawn from
it to support the verdict. Id. at 147. Where contradictory or inconsistent
testimony is presented at trial, it is up to the fact finder to resolve such
conflicting testimony. Brown v. State, 830 N.E.2d 956, 968 (Ind. Ct. App. 2005).
And in our review, we consider conflicting evidence most favorably to the
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verdict. Boggs v. State, 928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied.
We will reverse a conviction only if no reasonable person could say that the
State negated the defendant’s self-defense claim beyond a reasonable doubt.
Wilson, 770 N.E.2d at 800-01.
[15] To prove the offense of battery as a Class B misdemeanor, the State must show
that the defendant knowingly or intentionally touched another person in a rude,
insolent, or angry manner. Ind. Code § 35-42-2-1 (c)(1). At trial, Lowery
testified that Perry approached her vehicle, opened the passenger side door,
grabbed her arm, and pulled her hair. In response, Lowery grabbed Perry’s
back, whereupon Perry removed the car keys from the ignition, threw them into
alley, and started to walk away. However, when Lowery kneeled down to pick
up her the keys, Perry approached again, grabbed Lowery’s hair, and tried to
drag her to the ground. When Officer Carlson arrived at the scene, he observed
and photographed Lowery holding the clump of hair that Perry had pulled from
Lowery’s head.
[16] Notwithstanding Perry’s claim that Lowery initiated the altercation and struck
her first, the evidence most favorable to the judgment supports a finding that
Perry was the instigator, thus negating an element of her self-defense claim.
The trial court, as the fact finder, was under no obligation to credit Perry’s self-
serving, uncorroborated version of the altercation. See McCullough v. State, 985
N.E.2d 1135, 1139 (Ind. Ct. App. 2013) (the jury was not obligated to believe
the defendant when the only evidence supporting his account of the incident
was his self-serving statements), trans. denied. As a result, we conclude that the
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evidence was sufficient to establish that Perry committed battery as a Class B
misdemeanor and that she did not act in self-defense.
[17] Judgment affirmed.
Riley, J. and May, J., concur.
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