Opinion
No. 49A05-1104-CR-170 Cause No. 49F09-1007-FD-053724
10-26-2011
TENZIN TAMDING, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : MICHAEL R. FISHER Marion County Public Defender Agency Indianapolis, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
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:
MICHAEL R. FISHER
Marion County Public Defender Agency
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marc T. Rothenberg, Judge
The Honorable Anne M. Flannelly, Commissioner
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Tenzin Tamding ("Tamding") appeals his convictions for Criminal Recklessness, as a Class D felony, and Battery, as a Class A misdemeanor. He raises one issue for our review, whether the State adduced sufficient evidence to rebut Tamding's claim of self-defense or defense of another. We affirm.
I.C. § 35-42-2-1.
Facts and Procedural History
On July 9, 2010, Tamding and his friends were at a dance club on South Meridian Street in Indianapolis. So, too, were Jorge Cisneros Hernea ("Jorge"), his nephew, Pablo Cisneros ("Pablo"), a friend, Javier Amaro ("Amaro"), at least one other male friend, and several female friends.
Around 3:00 a.m., Jorge had left the dance club with a female friend and was headed north on Meridian Street toward his car, which was parked on Washington Street. Jorge had nearly reached his car, and a large fight involving at least ten men broke out, during which Jorge was kicked to the ground by Tamding and at least one other person. Jorge's group came to help him, and Tamding helped members of his group.
Indianapolis Metropolitan Police Department Officer Jacqueline Stackman ("Officer Stackman") was on duty at that time and had parked her squad car at the corner of Jackson Street and South Meridian Street. Her window was open and she heard the noise of a fight north of her location. Pulling her car toward Meridian Street, she saw the fight still under way. By this point, the brawl stretched across the sidewalk and part of the northbound lanes of Meridian Street and had grown to involve at least ten men.
Officer Stackman activated her lights and sirens and drove slowly up Meridian Street toward the fight, hoping to disperse the crowd. As she reached the location of the fight, she saw Tamding swing the base and pole of a metal ashtray at Jorge, who had assumed a defensive posture. The pole struck Jorge's face. Jorge had a cut on the back of his head, a bloody and swollen nose, and one eye swollen shut.
Officer Stackman got out of her car, approached the fighting men, and ordered them to stop. Many in Tamding's group fled, but Jorge's group remained behind. Tamding, however, dropped the pole and took flight. Officer Stackman tased Tamding twice and, after a brief chase, arrested him.
On July 16, 2010, the State charged Tamding with Criminal Recklessness, Battery, and Resisting Law Enforcement, as a Class A misdemeanor. Tamding waived jury trial, and on February 16, 2011, a bench trial was conducted. At its conclusion, the trial court found Tamding guilty of Criminal Recklessness and Battery, but found him not guilty of Resisting Law Enforcement. On March 16, 2011, the trial court entered judgment against Tamding and sentenced him to 545 days imprisonment for Criminal Recklessness and 365 days imprisonment for Battery to be served concurrently, with 363 days suspended and the remainder to be served with Community Corrections.
I.C. § 35-44-3-3.
This appeal followed.
Discussion and Decision
On appeal, Tamding concedes that he swung the ashtray pole and struck Jorge. He contends that there was insufficient evidence to disprove his claim of self-defense or defense of others beyond a reasonable doubt.
This court reviews a challenge to sufficiency of the evidence to rebut a self-defense claim under the same standard as any sufficiency of the evidence claim. Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999). That is, the verdict will not be disturbed if there is sufficient evidence of probative value to support the conclusion of the trier of fact. Id. Stated differently, a reviewing court will reverse a conviction where the defendant claimed self-defense only if no reasonable person could say the State disproved self-defense beyond a reasonable doubt. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999). In conducting this review, we neither reweigh evidence nor judge witness credibility. Sanders, 704 N.E.2d at 123.Boyer v. State, 883 N.E.2d 158, 162 (Ind. Ct. App. 2008).
Defense of self or others as an affirmative defense is established by the Indiana Code. "A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force." Ind. Code § 35-41-3-2(a).
To support a claim of self-defense, a defendant must have acted without fault, been in a place where he had a right to be, and been in reasonable fear or apprehension of bodily harm. Brewer v. State, 646 N.E.2d 1382, 1386 (Ind. 1995). The defendant's belief ... must be reasonable and in good faith, and his "reaction to that belief must be reasonable based upon the surrounding circumstances under which the events have occurred." Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995).White v. State, 699 N.E.2d 630, 635 (Ind. 1998).
Here, Tamding contends that the State failed to adduce sufficient evidence to rebut his claim to be defending himself or others. Specifically, Tamding argues that he was protecting himself from Jorge, that Jorge had initiated the fighting, and that Jorge was more physically imposing than Tamding, and thus the State failed to carry its burden to disprove at least one of the elements of self-defense.
Though there is conflicting evidence as to the start of the fight, Jorge testified that he had never met Tamding before and that Tamding and a friend initiated the fight by kicking him. The trial court expressly found persuasive Officer Stackman's testimony that when she arrived, Jorge was in a defensive posture and Tamding swung the metal pole at Jorge and struck him on the face even though others at the scene had already begun to disperse. This is reinforced by the testimony of Qasim Farid, who stated that he did not see whether Tamding struck Jorge with the pole because he had already begun to run from the scene, though he knew that Tamding had stayed behind. To the extent Tamding points to one or another version of the fight's origin or directs our attention to his size compared to Jorge's size, these arguments are invitations to judge witness credibility and reweigh evidence, which we cannot do. See Boyer, 883 N.E.2d at 162. We therefore conclude that the State adduced sufficient evidence to rebut Tamding's claim of self-defense or defense of others.
Affirmed. MATHIAS, J., and CRONE, J., concur.