PYLE, Judge.
Brent Cole ("Cole") appeals, following a jury trial, his convictions for Class A misdemeanor strangulation
On appeal, Cole argues that the trial court committed fundamental error by admonishing or instructing the jury during the trial and that the State failed to present sufficient evidence to rebut his claim that he committed his offenses in self-defense. We find that: (1) Cole has waived any claim of error in regard to the admonition; (2) he invited any alleged error by specifically agreeing to the content of the trial court's admonition; and (3) the State presented sufficient evidence that Cole was the initial aggressor and then re-engaged with the victim. As a result, we affirm his convictions.
Affirmed.
1. Whether Cole has waived any argument regarding the trial court's admonition on evidentiary matters.
2. Whether the State presented sufficient evidence to rebut Cole's claim that he committed his offenses in self-defense.
In May 2013, Joseph Dalton Phillips ("Phillips") and his girlfriend, Morgan Cole ("Morgan"), who is Cole's daughter, were expecting a baby. Phillips was remodeling a house in Monroe County to get it ready for the baby's arrival the following month.
On May 9, 2013, Phillips and Morgan were at the house, which was still under renovation. Around 9:30 p.m., Phillips dropped Morgan off at her house, where she lived with her mother and Cole.
Shortly after returning to his house, Phillips heard a knock on the door. Cole, who smelled of alcohol and was carrying a half-full jug of wine, walked into Phillips's kitchen, looked around, and criticized Phillips for the slow progress on the house renovation. Phillips agreed that he needed to get it done, and then Cole "got angry and he began to yell" at Phillips. (Tr. 130). Cole — who had been sitting on a stack of drywall — stood up, "continued to yell" at Phillips, "approached [Phillips] at a pretty quick rate[,]" "put his hands on [Phillips's] chest[,]" and "pinned" Phillips up against the kitchen counter. (Tr. 130). Cole grabbed Phillips's shirt and was yelling at him so closely that Phillips "could feel [Cole's] spit hitting [his] face." (Tr. 132). Phillips, thinking that he "needed to get separation," then pushed Cole away from him. (Tr. 132). Cole tripped over the stack of drywall and knocked over his wine. Phillips told Cole to get out of the house and that he did not want to fight.
Phillips immediately called the police, and Monroe County Sheriff's Deputy Jeff Feiner ("Deputy Feiner") was dispatched to Phillips's house. Phillips had redness and bruising around his neck, a "busted lip," and a black eye. (Tr. 137). Deputy Feiner photographed Phillips's injuries at the scene and then went to Cole's house.
While at Cole's house, the deputy asked Cole if he was injured, and Cole replied that he was not. As Deputy Feiner talked to Cole, he detected the odor of alcohol on Cole's breath. Cole "described the altercation" to Deputy Feiner and told the deputy that he "had pinned Mr. Phillips in the corner and [had] grabbed his `neck meat.'" (Tr. 166). When asked by the deputy, Cole told the deputy that he "did not feel threatened" by Phillips and that "Phillips did not advance on him." (Tr. 168). Cole never told the deputy that Phillips had started the fight. Cole stated that "he should have beaten [Phillips's] ass." (Tr. 169). Cole described the events of the evening in a written statement, in which he stated:
(State's Ex. 7). Deputy Feiner also spoke to Morgan, showed her the photographs of Phillips's injuries, and confirmed that Phillips was not injured when she last saw him.
Thereafter, the State charged Cole with Class D felony strangulation and Class A misdemeanor battery.
During opening statements, Cole's attorney stated that Cole went to Phillips's house to confront Phillips about "some statements made to a third party" and to "[a]ccuse [Phillips] of doing that." (Tr. 111). Cole's attorney also made a reference to a claim of self-defense, stating that Phillips had touched Cole first when Phillips pushed him. His attorney stated that Cole then got up, "put the kid up against the wall and told him[,] `you're not gonna touch me or my family again.'" (Tr. 112). Thereafter, Cole's counsel told the trial court that he was going to tender a self-defense instruction for inclusion in the final jury instructions.
During the trial, Phillips testified to the facts above and stated that Cole had touched him first. During cross-examination, Cole's attorney asked Phillips if Cole had said anything to him as Cole was hitting him, and Phillips responded that Cole had told him to say "uncle" as Cole choked him. (Tr. 147). Cole's attorney then asked, "Did [Cole] say anything to the effect of do not put your hands on me or my family ever again?" (Tr. 147). Phillips responded that he did not recall Cole saying that.
When Deputy Feiner testified, he stated that, on the night of the incident, Cole had told him that altercation "started as a verbal argument over the progress of the renovation on the home." (Tr. 167). On direct examination, Deputy Feiner testified that Cole had told the deputy that "he should have beaten [Phillips's] ass" and "then told [the deputy] that he told Mr. Phillips not to touch him or his family again." (Tr. 169). The State introduced State's Exhibit 7, Cole's written statement to police, into evidence. During cross-examination of Deputy Feiner, Cole's attorney asked the deputy if Cole — after he had "pinned" Phillips to the wall — had told Phillips "that he better not ever again lay his hands on himself or his family?", and Deputy Feiner responded, "Correct." (Tr. 179).
When the jurors submitted questions for Deputy Feiner, one of the jurors asked, "Who did [the] witness touch for the defendant to say `you're not going to touch me or my family again[]?'" (Tr. 186-87). The trial court did not pose the question to the deputy but discussed it with the parties outside the presence of the jury. The prosecutor's position on the question was that the trial court should not ask it because the question "got in[]to the realm covered by the motion in limine." (Tr. 187). The prosecutor explained that Cole had previously alleged that Phillips had struck Morgan and Cole's grandchild and that Cole had called Department of Child Services on him. The prosecutor argued that these alleged prior bad acts were not relevant. Cole's attorney asserted that the question should be asked because Cole's position was that he had said that statement to Phillips when he pinned him against the wall and "[s]o that's already out there." (Tr. 189). The trial court stated that he presumed that the juror's reference to the "witness" was meant to be Phillips and not the deputy and confirmed with Cole's counsel that the potential answer to the question did not "bear on the issues of this case[.]" (Tr. 190). When ruling that it would not ask the juror's question, the trial court stated:
Cole presented testimony from himself to raise a claim of self-defense. During his testimony, he disputed the facts that lead to Cole pinning Phillips to the wall. Cole testified that he was arguing with Phillips when Phillips pushed him, causing him to fall on the drywall. Additionally, Cole testified that he "stood up and defended [him]self" when Phillips stood "hovering over [Cole] with his fists balled up" and had a knife nearby. (Tr. 201). Cole admitted that he "took [his] elbow [and] drove it right in[]to the side of [Phillips's] head and drove him in[]to the cabinets." (Tr. 202). Cole also admitted that he "slapped" Phillips in the face but denied that he choked him. (Tr. 202). Cole then repeatedly testified that he told Phillips to keep his hands off Cole and his family. He contended that he was trying to "[d]efend [him]self and establish the point that [he was] tired of [Phillips] putting his hands on [Cole] and [his] family." (Tr. 204).
When Cole was testifying about being charged with the crimes, he stated that he told a deputy prosecutor that he did not "understand why charges isn't [sic] pressed on somebody else." (Tr. 209). Cole then followed up that statement by saying, "There's a lot of other things I can't talk about right now but the bottom line is [....]" (Tr. 209). The State immediately objected and moved to strike Cole's statement to the jury that there were a lot of things that he could not talk about during his testimony. The State argued that it appeared that Cole was "trying to violate the Motion in Limine[.]" (Tr. 209). Cole's attorney stated that it was not "particularly germane[] [to] anything," and the trial court excused the jury to discuss the State's objection and motion to strike. (Tr. 209).
During the discussion, the following exchange occurred between the trial court and Cole's attorney:
(Tr. 210-12).
After the trial court held a recess, and still outside the presence of the jury, the trial court gave the parties a copy of a written admonition that the court intended to give it to the jury.
(App. 9-10).
The trial court explained to the parties that it was going to tell the jury that Cole's "statement does not apply, the statement about hands on somebody else is not self-defense." (Tr. 212). Cole's counsel replied, "Gotcha" and informed the trial court that Cole had "[n]o objection or feedback" to the admonition. (Tr. 213). The trial court then concluded by saying:
(Tr. 213). When the jury returned to the courtroom, the trial court admonished them as set forth above. Thereafter, Cole's attorney continued with his direct examination of Cole.
The trial court's final instructions included an instruction on self-defense. The jury found Cole guilty as charged. During a later sentencing hearing, the trial court entered judgment of conviction on the strangulation charge as a Class A misdemeanor and imposed a one hundred and eighty (180) day sentence suspended to probation. The trial court also imposed a one hundred and eighty (180) day sentence suspended to probation for Cole's battery conviction. The trial court ordered that his sentences be served concurrently and that he undergo a substance abuse evaluation and complete community service. Cole now appeals his convictions.
On appeal, Cole argues that: (1) the trial court erred by admonishing the jury; and (2) the State failed to present sufficient evidence to rebut his claim that he committed the strangulation and battery in self-defense.
Cole first argues that the trial court erred when it admonished the jury during the trial.
"Admonitions and instructions to be given to the jury ... must come from the judge, an impartial source not involved in trial advocacy." Dooley v. State, 271 Ind. 404, 393 N.E.2d 154, 156 (1979). Under Evidence Rule 105,
Cole makes multiple arguments regarding the trial court's admonition to the jury. He characterizes the admonition as a jury instruction and claims that the trial court erred by giving a jury instruction during the middle of the trial and that the instruction was a misstatement of the law. Cole also contends that evidence of Phillips's prior acts were admissible and asserts that the jury should have been able to consider those prior acts as part of his self-defense claim. Additionally, Cole suggests that the trial court's admonition violated his due process rights and denied him the right to present a defense in violation of both the United States and Indiana Constitutions. Finally, after acknowledging that he did not object to the trial court's admonition, he contends that the admonition to the jury constituted fundamental error.
We need not, however, address Cole's array of arguments because he has waived appellate review of these arguments. First and foremost, to the extent that Cole is attempting to challenge the propriety of the trial court's admonition, he has waived any such appellate challenge because he did not object to the admonition at trial. In fact, he affirmatively stated that he had "[n]o objection" to the admonition. (Tr. 213). An "`appellant cannot on the one hand state at trial that he has no objection to the admission of evidence and thereafter in this Court claim such admission to be erroneous.'" Halliburton v. State, 1 N.E.3d 670, 678-79 (Ind. 2013) (quoting Harrison v. State, 258 Ind. 359, 281 N.E.2d 98, 100 (1972)). Consequently, Cole has waived appellate review of his claim of error. See Halliburton, 1 N.E.3d at 683 (quoting Stahl v. State, 616 N.E.2d 9, 13 (Ind.1993)) (explaining that "`[n]othing is preserved on appeal where a defendant fails to object to a limiting instruction'"). See also Brown v. State, 929 N.E.2d 204, 207 (Ind.2010) (holding that defendant, who did not object to evidence upon its introduction and who affirmatively stated he had no objection, waived review of his argument), reh'g denied.
Additionally, in regard to Cole's suggestion that evidence of Phillips's alleged prior bad acts was admissible and should have been considered by the jury, we note that, prior to trial, the trial court granted the State's motion in limine to exclude any evidence regarding such prior acts. Cole, however, never made an offer to prove at trial or made any specific argument on the admissibility of any such evidence. Therefore, he has waived this argument on appeal. See Carter v. State, 932 N.E.2d 1284, 1287 (Ind.Ct.App.2010) ("The failure to make an offer to prove results in a waiver of the asserted evidentiary error.").
Furthermore, Cole's arguments that the trial court's admonition violated his due process rights and denied him a right to present a defense are also waived because he failed to make an objection based on these grounds at trial. See Moore v. State, 669 N.E.2d 733, 742 (Ind. 1996) (explaining that a defendant waives a claim on appeal when he does not object to the introduction of evidence, makes only a general objection, or objects only on other grounds), reh'g denied.
Finally, we turn to Cole's argument that the trial court's admonition constituted fundamental error. "The fundamental error exception is `extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.'" Brown, 929 N.E.2d at 207 (quoting Mathews
Cole has also waived appellate review of this argument because he invited any alleged error in the giving of the admonition. "A party may not invite error, then later argue that the error supports reversal, because error invited by the complaining party is not reversible error." Kingery v. State, 659 N.E.2d 490, 494 (Ind.1995), reh'g denied.
From reviewing the transcript of the trial, it is clear that the trial court's admonition was given in response to Cole's presentation of his defense and evidence. Cole did not tender a self-defense instruction for inclusion in the preliminary instructions. During opening statements, however, Cole's counsel set forth that Cole's defense would be one of self-defense, and then he referenced Cole's statement to Phillips warning him not to touch Cole or his family again. When Cole's counsel cross-examined Phillips and Deputy Feiner, he again brought up Cole's statement warning Phillips not to touch him or his family.
Cole does not dispute the fact that he strangled and battered Phillips. Instead, his challenge to the sufficiency of the evidence is limited to his argument that the State failed to present sufficient evidence to rebut his claim that he committed the strangulation and battery in self-defense.
The standard of review for a challenge to the sufficiency of evidence to rebut a claim of self-defense is the same as
A valid claim of self-defense is legal justification for an otherwise criminal act. Coleman v. State, 946 N.E.2d 1160, 1165 (Ind.2011). "A person is justified in using reasonable force against any other 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(c). However, a person is not justified in using force if the person has "entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action." I.C. § 35-41-3-2(g)(3).
In order to prevail on a claim of self-defense, a defendant must show: (1) he was in a place where he had a right to be; (2) he acted without fault; and (3) he had a reasonable fear of death or great bodily harm. Coleman, 946 N.E.2d at 1165. "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 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." Miller v. State, 720 N.E.2d 696, 700 (Ind.1999). Id. Whether the State has met its burden is a question of fact for the fact-finder. Id.
Cole argues that he was justified in strangling and battering Phillips. Cole — relying on his own testimony — contends that he had a right to be at Phillips's house, that he "did not instigate or initiate the physical altercation[,]" and that he had a "reasonable fear of imminent harm" because Phillips was younger and because he claims that there was a knife nearby that Phillips could have possibly used. (Cole's Br. 9). We disagree.
As the State correctly asserts, the evidence presented during the jury trial reveals that "Cole instigated the fight and was the initial aggressor." (State's Br. 19). The evidence presented showed that Cole was a willing participant in the altercation, which ended up with him strangling, slapping, and punching Phillips in the face. Furthermore, Cole did not withdraw from the encounter. Indeed, the evidence reveals that Cole and Phillips had a verbal argument that resulted in Cole pinning Phillips against the kitchen cabinets and then Phillips pushing Cole away, causing Cole to trip over the drywall. That initial altercation, however, ended when Phillips told Cole that he did not want to fight him and that he wanted Cole to leave his house. Cole, however, got up, grabbed Phillips by the neck, and punched him in the face. Cole kept his hand "clench[ed]" around Phillips's neck to the point where it closed Phillips's air passage. (Tr. 135). As Cole continued to choke Phillips, Cole slapped Phillips's face and told him to say "uncle." (Tr. 134). Furthermore, when questioned by Officer Feiner on the night of the incident, Cole told the deputy that he did not feel threatened by Phillips and that Phillips did not advance on him. Thus, the State met its burden of rebutting Cole's claim of self-defense.
Cole's argument that his trial testimony shows that he justifiably acted in
Affirmed.
BARNES, J., and MAY, J., concur.