Opinion
24A-CR-300
08-23-2024
James M. Gosha, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEYS FOR APPELLANT Shari L. Blessing Marietto V. Massillamany Massillamany Jeter & Carson LLP Fishers, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General John R. Oosterhoff Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Madison Circuit Court The Honorable Angela G. Warner Sims, Judge Trial Court Cause No. 48C01-2203-F3-000881
ATTORNEYS FOR APPELLANT
Shari L. Blessing
Marietto V. Massillamany
Massillamany Jeter & Carson LLP
Fishers, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Indiana Attorney General
John R. Oosterhoff
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Felix, Judge.
Statement of the Case
[¶1] After James Gosha got into an argument with his neighbor, Mark Tulowitzky, Gosha beat Tulowitzky so severely Tulowitzky spent more than a week in the hospital. At his trial for aggravated battery, Gosha claimed he attacked Tulowitzky in self-defense. The jury found Gosha guilty as charged. Gosha now appeals, raising one issue for our review: Whether the State presented sufficient evidence to rebut his claim of self-defense.
[¶2] We affirm.
Facts and Procedural History
[¶3] Gosha and Tulowitzky became friends and neighbors in 2020 when Gosha moved in with his uncle in Anderson, Indiana. Eventually, Gosha moved out of his uncle's house and into a vehicle in his uncle's backyard. Gosha and Tulowitzky often ate and worked odd jobs together, and Tulowitzky occasionally allowed Gosha to use his electricity, shower, and washing machine.
[¶4] On the morning of October 22, 2021, Gosha and Tulowitzky ate breakfast together at Tulowitzky's house. Gosha left Tulowitzky's, and when Tulowitzky went outside sometime thereafter, he noticed his extension cord was stretched from his back door to Gosha's vehicle. Concerned that Gosha was using the extension cord to run a heater inside the vehicle-which Tulowitzky had previously warned him against- Tulowitzky approached Gosha, who was near the fire pit in Tulowitzky's backyard. Tulowitzky attempted to talk to Gosha about his use of the extension cord, but "the conversation grew hostile, so [Tulowitzky] turned to walk away." Tr. Vol. I at 244. Tulowitzky then saw "two (2) bright flashes," and the next thing he remembered was waking up in the hospital with a bad headache, his left eye swollen shut, and 11 staples in his head. Id. at 245. Tulowitzky spent more than a week in a hospital before being moved to a nursing home for physical therapy, where he spent another five days.
[¶5] Shortly after 5:00 p.m. on October 22, 2021, law enforcement officers responded to a welfare check request for Tulowitzky at his home. They found Tulowitzky lying on his couch with "a lot of dried blood on his face," Tr. Vol. II at 71, and "in a great deal of pain," id. at 73. Tulowitzky's speech was "very stressed," id., and his eyes appeared to be swollen shut. When an officer asked Tulowitzky who hurt him, Tulowitzky pointed in the direction of Gosha's uncle's property. Later at the hospital, when asked again who hurt him, Tulowitzky stated it was Gosha, that they had argued over Gosha's use of an extension cord, and that Gosha had hit him. Tulowitzky also told law enforcement officers that at some point after Gosha hit him, he "crawled over to the neighboring house." Id. at 88. Officers found a large amount of blood near the wood pile in Tulowitzky's backyard, and they observed traces of blood near the front and back porches of Gosha's uncle's house as well as cleaning supplies and "a very strong smell of bleach on the front porch," id. at 92. Officers did not find a knife or boxcutter at the scene.
[¶6] The State charged Gosha with aggravated battery as a Level 3 felony. At trial, Gosha testified that Tulowitzky often carried a boxcutter in his pocket and that when Tulowitzky approached him on October 22, 2021, Tulowitzky was angry and reached for his back pocket. Gosha stated this "caused [him] concern," Tr. Vol. II at 143, so he hit Tulowitzky in the face with his fist. According to Gosha, this hit caused Tulowitzky to stumble backwards, and Tulowitzky grabbed Gosha, causing them to fall into a wood pile. Gosha testified that he told Tulowitzky to let him go, but Tulowitzky refused and reached for a nearby pipe; consequently, Gosha picked up a stick and hit Tulowitzky in the face and chest with it until Tulowitzky let go of him. Gosha claimed that once Tulowitzky released him and he was able to stand up, Tulowitzky got up and they both walked away. Gosha admitted that he never saw Tulowitzky with a knife or boxcutter in his hands; however, Gosha testified that there was a boxcutter near the woodpile. Gosha also admitted that he apologized to Tulowitzky shortly after he returned home from the hospital and nursing home. Additionally, on cross examination, Gosha acknowledged having prior convictions for rape, robbery, burglary, and criminal confinement.
[¶7] Gosha's former girlfriend testified that Gosha called her on October 22, 2021, and told her that he and Tulowitzky "had gotten into a fight" and he "beat up [Tulowitzky] and split [Tulowitzky]'s head with a log." Tr. Vol. II at 49. Anderson Police Department Detective Clifford Cole testified that when he interviewed Gosha about the October 22 incident, Gosha initially stated he did not remember what happened. Later in the interview, Gosha admitted that he has a "bad temper" and is prone to "snap." Tr. Vol. II at 166. Gosha eventually told Detective Cole, "To be honest with you, I picked up a log and hit [Tulowitzky] across the chest." Id. at 167. Gosha claimed he "blacked out," id. at 168, and stated that after he "came back to his senses," he "helped [Tulowitzky] up and [Tulowitzky] was bleeding like a mother f[***]er." Id. Detective Cole also testified that Gosha informed him that Tulowitzky "keeps knives in his pocket" but that he did not see any weapons in Tulowitzky's hands during their argument and altercation. Id.
[¶8] One of Tulowitzky's doctors testified that Tulowitzky suffered a broken eye socket and a depressed skull fracture, and that his injuries were consistent with someone hitting Tulowitzky with "a lot of force" from the front, the side, or both, Tr. Vol. II at 37-38. This doctor further testified that Tulowitzky's injuries were consistent with him being hit by a log but generally not with being hit by someone's fist due to the force of the hit Tulowitzky sustained.
[¶9] The jury convicted Gosha as charged. The trial court sentenced Gosha to 13 years, with 10 of those years executed at the Indiana Department of Correction and the remaining 3 years with community corrections. This appeal ensued.
Discussion and Decision
The State Presented Sufficient Evidence to Rebut Gosha's Self-Defense Claim
[¶10] Gosha argues that the State presented insufficient evidence at trial to rebut his claim of self-defense. A valid claim of self-defense is legal justification for an otherwise criminal act. I.C. § 35-41-3-2 (2023); Larkin v. State, 173 N.E.3d 662, 670 (Ind. 2021) (citing Miller v. State, 720 N.E.2d 696, 699 (Ind. 1999)). "Whether a defendant acted in self-defense is generally a question of fact for the jury." Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999) (citing Brooks v. State, 983 N.E.2d 574, 577 (Ind. 1997)). "A conviction in spite of a claim of self-defense will be reversed only if no reasonable person could say that the claim was negated by the State beyond a reasonable doubt." Id. (citing Lilly v. State, 506 N.E.2d 23, 24 (Ind.1987)).
[¶11] When a defendant asserts self-defense,
the defendant must prove he was in a place where he had a right to be, "acted without fault," and reasonably feared or apprehended death or great bodily harm. Miller, 720 N.E.2d at 699-700. The State must then negate at least one element beyond a reasonable doubt "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." Lilly v. State, 506 N.E.2d 23, 24 (Ind. 1987).Larkin, 173 N.E.3d at 670. "When a defendant alleges the State did not sufficiently rebut his self-defense claim, we do not reweigh evidence or assess witness credibility," and we "only look 'to the evidence most favorable to the judgment.'" Larkin, 173 N.E.3d at 670 (quoting Miller, 720 N.E.2d at 699). We will affirm the conviction if the evidence and reasonable inference most favorable thereto "constitute substantial evidence of probative value sufficient to support the judgment." Id. (quoting Miller, 720 N.E.2d at 699).
[¶12] Gosha contends that the State did not present sufficient evidence to establish that he was at fault and that he did not reasonably fear imminent death or great bodily harm. Gosha's argument assumes he proved that he acted in selfdefense. Even if we assume arguendo that Gosha demonstrated all three elements necessary to claim self-defense, he has not demonstrated that the State failed to present sufficient evidence to rebut at least one of those elements. The evidence most favorable to the jury's verdict shows that Gosha struck Tulowitzky as Tulowitzky walked away from their argument, Tulowitzky lost consciousness immediately after he was hit, Gosha told his then-girlfriend that he had split open Tulowitzky's head with a log, and Tulowitzky's injuries were consistent with forceful hits to the head from the front and side. The investigating officers did not locate near the wood pile a box cutter or other type of knife that Gosha claimed fell from Tulowitzky's pocket during their alleged struggle. The jury could have reasonably inferred from this evidence that Gosha was at fault because he instigated the violence, that he did not have a reasonable fear of imminent death or great bodily injury, or both.
[¶13] Nevertheless, Gosha contends that the evidence showed that Tulowitzky threatened Gosha and would not let Gosha go after Gosha initially struck him in the face. However, law enforcement officers did not find a box cutter or other type of knife near the wood pile, as Gosha claimed there had been. Gosha also apologized to Tulowitzky. In addition, the jury heard Gosha testify that he had prior convictions for rape, robbery, burglary, and criminal confinement, and this evidence allowed the jury to discredit Gosha's testimony, see Ind. Evidence Rule 609(a). It is clear the jury credited Tulowitzky's version of events and the evidence corroborating it over Gosha's version of events. We will not second guess the jury's judgment on these matters. See Larkin, 173 N.E.3d at 670 (quoting Miller, 720 N.E.2d at 699).
As the State correctly points out in its brief, Appellee's Br. at 9 n.1 (citing Tr. Vol. II at 142), the trial court did not admit Gosha's testimony about Tulowitzky's alleged threats because that testimony was hearsay, Tr. Vol. II at 142.
[¶14] Based on the foregoing, we cannot say the State failed to present sufficient evidence to rebut Gosha's claim of self-defense. We therefore affirm Gosha's conviction.
[¶15] Affirmed.
Riley, J., and Kenworthy, J., concur.