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: ATTORNEYS FOR APPELLEE:

JAY RODIA GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

JAMES B. MARTIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CAROL MILLER, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1210-CR-523

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT 

The Honorable Annie Christ-Garcia, Judge 

Cause No. 49F24-1109-FD-61953

June 10, 2013

 

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge 
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Carol Miller (“Miller”) was convicted after a jury trial of pointing a firearm1as a 

Class A misdemeanor. She appeals, raising the following restated issue for our review: 

whether the State presented sufficient evidence to disprove Miller’s claim of self-defense.

We affirm.

FACTS AND PROCEDURAL HISTORY

In August 2011, Gregory Cox (“Cox”) worked as a tow truck operator for A-Mass 

Towing, which had a contract with Hanover North, a subdivision in Marion County. 

Under the contract, A-Mass Towing would patrol for illegally parked vehicles in the 

subdivision. Vehicles could not be legally parked on the streets in the subdivision 

because the streets were too narrow, and parked vehicles could impede emergency 

vehicles. Cox would tag an illegally parked vehicle with a warning, but would not tag a 

vehicle more than once in a twenty-four-hour period. After a vehicle had been tagged 

twice, Cox would impound the illegally parked vehicle after observing a third violation.

On the night of August 30, 2011, Cox was patrolling Hanover North when he 

observed a blue Ford Explorer (“the Explorer”) parked on the street and facing oncoming 

traffic. Cox could see where a tag had been removed from the front driver’s side window 

of the Explorer. He then verified with a tag list and a call to his employer that the 

Explorer was still in violation for the same breach for which it had been previously 

tagged. Cox was wearing a blue uniform with reflective stripes and yellow borders, and 

his tow truck was marked with several company logos and was equipped with flashing 

 

1

See Ind. Code § 35-47-4-3.
3

safety lights. After verifying that the Explorer was still in violation for the same breach, 

Cox backed up to it to begin towing it. 

Cox had the Explorer pulled approximately halfway up onto the bed of his tow 

truck when a neighbor knocked on the door of 2854 Ludwig Drive to alert the owner that 

the Explorer was being towed. Miller exited the home with a gun in a holster on her hip, 

and she asked Cox what was going on. Cox told her that the Explorer was being 

impounded and provided her with the location of the impound lot. Miller became 

agitated, and Cox explained to her that the Explorer had “already been tagged a couple 

times, it’s being impounded, . . . I’m just the tow truck driver.” Tr. at 21. Because he 

had observed Miller’s firearm, Cox attempted to put some distance between himself and 

Miller by walking to the other side of his truck. Miller followed him around his truck and

became more agitated when she realized that Cox was not going to release the Explorer 

back to her at that time. Cox walked behind the Explorer, and Miller said, “no, no, 

you’re not going to tow my vehicle.” Id. at 22. She then pulled her firearm out of its 

holster, “racked” it (meaning she released the safety and pulled the slide back to load a 

round into the chamber of the weapon) and pointed it at Cox from a distance of six to 

eight feet. When Cox heard the sound of Miller racking her firearm, he immediately 

began to turn away from her, put his hands in the air, and said, “okay, okay, no problem 

I’ll put [the Explorer] down, not a problem.” Id. at 24. Cox was trained to try to calm 

people down when they became angry with him while performing his job. Cox did not 

approach Miller at any point during their interaction. Miller then looked like she was 
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putting her firearm back into the holster, but then raised it again and said, “I’m serious 

now.” Id. at 25. 

Cox walked around the front of his truck to put distance between Miller and 

himself. When he had made sure there was sufficient distance between them, he called 

911 to report the altercation and that it involved a gun. Cox waited in his truck and then 

in a neighbor’s driveway until the police arrived. When the police arrived, Miller was 

located in the driver’s seat of the Explorer, which was still halfway onto the tow truck. 

Police officers asked Miller to show her hands, but she did not comply until after several 

requests were made. Officers secured Miller’s firearm, which was still loaded and 

contained a round in the chamber. 

The State charged Miller with pointing a firearm as a Class D felony. A jury trial 

was held, and at the conclusion of the trial, the jury found Miller guilty as charged. The 

trial court entered judgment as a Class A misdemeanor and sentenced Miller to 365 days, 

with 351 days suspended to probation and fourteen days executed, all of which was 

credited as time served. Miller now appeals.

DISCUSSION AND DECISION

Miller argues that the State failed to present sufficient evidence to rebut her claim 

of self-defense. We review a challenge to the sufficiency of the evidence to rebut a claim 

of self-defense using the same standard as for any claim of insufficient evidence. 

Pinkston v. State, 821 N.E.2d 830, 841 (Ind. Ct. App. 2004) (citing Wilson v. State, 770 

N.E.2d 799, 801 (Ind. 2002)), trans. denied. We neither reweigh the evidence nor judge 

the credibility of the witnesses. Id. If there is sufficient evidence of probative value to 
5

support the conclusion of the trier-of-fact, then the verdict will not be disturbed. Id. at 

841-42. 

Miller contends that she presented a valid claim of self-defense, which was not 

rebutted by the State. She claims that there was insufficient evidence presented for the 

jury to find beyond a reasonable doubt that the State had disproved her self-defense 

claim. Specifically, Miller alleges that the evidence showed that, when she went outside 

to determine what was happening with her vehicle, she became fearful when, Cox, who 

was a large man, “stood on the balls of his feet, with his chest puffed out and moved 

toward her.” Appellant’s Br. at 10. This was why she unholstered her weapon and 

pointed it at Cox. She further asserts that she put her weapon back in the holster as soon 

as she no longer viewed Cox as a threat.

We note that a valid claim of self-defense is a legal justification for an act that is 

otherwise defined as “criminal.” Pinkston, 821 N.E.2d at 842. To prevail on such a 

claim, the defendant must show that he: (1) was in a place where he 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. Id. (citing Wilson, 770 N.E.2d at 800). 

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. Id. The State may satisfy its 

burden by either rebutting the defense directly or relying on the sufficiency of evidence in 

its case-in-chief. Id. (citing Butler v. State, 547 N.E.2d 270, 271 (Ind.1989)).

Here, the evidence most favorable to the verdict showed that, as Cox was 

performing his job of impounding vehicles that were in violation of the parking policy of 
6

Hanover North, which he was authorized to do under a contract between his employer 

and the subdivision, he was confronted by Miller. Cox testified that, at no point, did he 

ever move toward Miller during their interaction. Tr. at 43-44. Instead, he stated that he 

observed Miller’s holstered forearm immediately, and attempted to distance himself from 

her. Id. at 20-22. When Miller realized that Cox was not going to release the Explorer, 

she told Cox, “no, no, you’re not going to tow my vehicle” and pointed her firearm at 

Cox. Id. at 22. The jury could have reasonably inferred from this evidence that Miller 

became angry with Cox, who was merely doing his job by impounding the Explorer, and 

pointed her firearm at him to compel him to stop. 

Miller’s entire argument is merely a request for this court to reweigh the evidence 

and to judge the credibility of the witnesses by finding her to be more credible than Cox, 

which we cannot do. Pinkston v. State, 821 N.E.2d at 841. We conclude that the State 

presented sufficient evidence to rebut Miller’s claim of self-defense as the evidence 

presented showed that Miller was not in fear that Cox would harm her, but was merely 

angry that he was towing the Explorer. The evidence was therefore sufficient for the 

jury to find beyond a reasonable doubt that the State rebutted Miller’s claim of selfdefense and to support her conviction for pointing a firearm.

Affirmed.

VAIDIK, J., and PYLE, J., concur.