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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: ZACHARY A. WITTE Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana BRIAN REITZ Deputy Attorney General Indianapolis, Indiana

FILED
May 06 2011, 9:34 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
WILLIE J. HERMAN, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 02A03-1010-CR-560

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Kenneth R. Scheibenberger, Judge Cause No. 02D04-1007-FD-632

May 6, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Willie J. Herman appeals his conviction for battery, as a Class D felony, following a jury trial. Herman raises a single issue for our review, namely, whether the State presented sufficient evidence to rebut Herman's claim of self-defense. We affirm. FACTS AND PROCEDURAL HISTORY In the morning of June 27, 2010, Herman, an inmate at the Allen County Jail, asked Confinement Officer Andrew Brooks if he could use the jail's hair clippers. Officer Brooks told Herman that someone else was using them. Herman responded by saying "f*** you" to Officer Brooks. Transcript at 55. Officer Brooks told Herman to "lock down," which was an instruction for Herman to go back to his cell to be secured until further notice. Id. at 56. Rather than return to his cell, however, Herman went into the "day room." Id. at 57. Officer Brooks followed him in order to "secure [Herman] into the cell." Id. In the day room, Officer Brooks again ordered Herman to lock down, and Herman again responded with an obscenity. Officer Brooks then ordered all the nearby inmates to lock down, and Herman backed away and raised his fist. Officer Brooks signaled to other officers for assistance, and "at that point he [Herman] punched me [Officer Brooks] in my mouth and upper lip." Id. at 58-59. Herman struck Officer Brooks several more times before Officer Brooks was able to defend himself. Officer Brooks and other officers were able to subdue Herman. As a result of the confrontation, Officer Brooks'

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"lip was split wide open and laid out." Id. at 60. The injury was painful and required treatment at a hospital. On June 6, the State charged Herman with battery, as a Class D felony. On September 16, a jury found Herman guilty. The trial court entered its judgment of conviction and sentence accordingly. This appeal ensued. DISCUSSION AND DECISION Herman argues that the State failed to present sufficient evidence to rebut his claim of self-defense. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the verdict and the reasonable inferences that may be drawn from that evidence to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Herman does not dispute that the State presented sufficient evidence to demonstrate the elements of battery, as a Class D felony. See Ind. Code

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