Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019 Page 1 of 8

MEMORANDUM DECISION

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

Mark D. Altenhof

Elkhart County Public Defender’s Office

Elkhart, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr. 

Attorney General of Indiana

Samantha M. Sumcad

Deputy Attorney General 

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Todd S. Fruth,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 17, 2019

Court of Appeals Case No.

19A-CR-347

Appeal from the

Elkhart Superior Court

The Honorable 

Kristine A. Osterday, Judge 

Trial Court Cause No.

20D01-1707-F6-967

Kirsch, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019 Page 2 of 8

[1] Todd S. Fruth (“Fruth”) was convicted after a bench trial of domestic battery 

committed in the presence of a child less than sixteen years of age.1 On appeal, 

Fruth raises the following issues:

I. Whether the State presented sufficient evidence to support 

the conviction; and

II. Whether the State disproved Fruth’s claim of self-defense. 

[2] We affirm.

Facts and Procedural History

[3] On July 2017, Fruth and his wife of eleven years, Amanda Fruth (“Amanda”), 

were preparing dinner for their seven children. Tr. at 72. Fruth was exhausted 

by the long day of yard work, and Amanda was recovering from a recent 

miscarriage. Id. at 75. Amanda and Fruth had argued throughout the day. Id. 

at 72. 

[4] As they were preparing dinner, their argument escalated. Id. at 73. All seven 

children were in the living room down the hall from the kitchen. Id. at 93. 

Amanda and Fruth’s oldest daughter, M.F., and another child came into the 

kitchen and asked their parents to stop arguing, but they did not. Id. at 74. The 

argument became heated, and Fruth was no longer making eye contact with 

Amanda. Id. at 77-78. Amanda took Fruth’s phone from him in an attempt to 

 

1

See Ind. Code § 35-42-2-1.3.
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get his attention. Id. at 78. The couple continued to argue, and this angered 

Fruth even more. Id. at 73. After a few minutes, Fruth shoved Amanda, who 

then fell on the kitchen counter. Id. at 73, 85. Id. at 85. M.F. later testified that 

she heard her parents arguing and saw her mom fall. Id. at 95.

[5] After the altercation, police were notified and arrived at the Fruth home. Id. at 

15. Officer Brandon Stevens of the Elkhart City Police Department noticed red

marks on Amanda’s shoulder blade, knees, and upper arms. Id. at 17-18, 27-28. 

Officer Stevens did not notice any marks on Fruth. Appellant’s App. Vol. II at 39. 

Fruth was arrested and charged with domestic battery committed in the 

presence of a child less than sixteen years of age. Id. at 29-30. 

[6] On October 19, 2018, a bench trial was held. Appellant’s App. Vol. II at 34. At 

the conclusion of the trial, Fruth was found guilty as charged. Id. at 17. On 

January 11, 2019, the trial judge sentenced Fruth to 361 days on probation. Id. 

Fruth now appeals his conviction. 

Discussion and Decision 

I. Sufficiency of Evidence

[7] When we review the sufficiency of the evidence, we do not determine the 

credibility of witnesses or reweigh the evidence. Boggs v. State, 928 N.E.2d 855, 

864 (Ind. Ct. App. 2010), trans. denied. We consider only the evidence most 

favorable to the verdict and the reasonable inferences that can be drawn from 

this evidence. Fuentes v. State, 10 N.E. 3d 68, 75 (Ind. Ct. App. 2014), trans. 

denied. We will not disturb the jury’s verdict if there is substantial evidence of 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-347 | July 17, 2019 Page 4 of 8

probative value to support it. Id. Circumstantial evidence can sustain a 

conviction. Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans. 

denied. Circumstantial evidence does not need to exclude every reasonable 

hypothesis of innocence and can sustain a conviction if an inference may 

reasonably be drawn from the evidence to support the judgment. Id. We will

affirm unless no reasonable fact-finder could find the elements of the crime 

proven beyond a reasonable doubt. Delagrange v. State, 5 N.E.3d 354, 356 (Ind. 

2014). 

[8] To support a conviction for Level 6 felony domestic battery committed in the 

presence of a child less than 16 years of age, the State must prove that Fruth 

knowingly or intentionally touched a family member in a rude, insolent, or 

angry manner and that Fruth knew the child was present and “might be able to 

see or hear the offense.” Ind. Code § 35-42-2-1.3(a)(1). “It is sufficient that the 

child might see or hear the battery.” Manuel v. State, 971 N.E.2d 1262, 1270 

(Ind. Ct. App. 2012) (emphasis in original). Presence has been defined as 

“knowingly being within either the possible sight or hearing of a child.” True v. 

State, 954 N.E.2d 1105, 1111 (Ind. Ct. App. 2011). A child does not 

necessarily have to see the battery, there needs to only be the “possibility that 

they might see or hear it.” Id. 

[9] In challenging the sufficiency of evidence, Fruth does not contend there is 

insufficient evidence that he shoved Amanda but only that he did not shove 

Amanda within the presence of M.F. Specifically, Fruth argues that the State 
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failed to prove that M.F was able to see or hear the battery because the State did 

not prove M.F.’s location at the specific moment the battery occurred

[10] Here, a rational fact-finder could find beyond a reasonable doubt that Fruth 

committed battery in the presence of a child less than sixteen years of age. The 

evidence most favorable to the verdict established that M.F. was aware that her 

parents were arguing and noted that the argument had become “abusive.” Tr. 

at 94. Fruth does not argue that he did not shove Amanda, he only argues that 

M.F.’s location was not proven by the State. However, M.F. testified that she 

saw her mom fall on the counter despite not seeing the actual battery itself. Id. 

at 95. Further, Fruth knew the children were present because M.F. and another 

child had asked Fruth and Amanda to stop arguing. Id. at 74. M.F. could have 

heard the battery and Fruth knew the children were present, and this is 

sufficient to support the conviction. 

II. Rebutting Fruth’s Claim of Self-Defense

[11] The standard for reviewing a challenge to the sufficiency of evidence to rebut a 

self-defense claim is the same standard for a claim of insufficient evidence. 

Ervin v. State, 114 N.E. 888, 895 (Ind. Ct. App. 2018), trans. denied. We neither 

reweigh the evidence nor judge the credibility of the witnesses. Id. We consider 

only the probative evidence and reasonable inferences supporting the trial 

court’s decision. Id. We will affirm a conviction if there is substantial evidence 

of probative value such that a reasonable trier of fact could have concluded the 

defendant was guilty beyond a reasonable doubt. Id. 
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[12] Indiana’s self-defense statute provides:

A person: (1) is justified in using reasonable force, including 

deadly force, against any other person; and (2) does not have a 

duty to retreat; if the person reasonably believes that the force is 

necessary to prevent serious bodily injury to the person or a third 

person on the commission of a forcible felony. No person in this 

state shall be placed in legal jeopardy of any kind whatsoever for 

protecting the person or a third person by reasonable means 

necessary.

Ind. Code § 35-41-3-2(c).

To prevail on such claims, a defendant must show 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. When a claim of self-defense 

is raised and finds support in the evidence, the State bears the 

burden of negating at least one of the necessary elements.

Ervin, 114 N.E.3d at 896 (internal citations omitted). To disprove a claim of 

self-defense, the State must negate at least one of the required elements. King v. 

State, 61 N.E.3d 1275, 1283 (Ind. Ct. App. 2016), trans. denied. 

[13] Fruth contends that the State failed to disprove his self-defense claim. He 

claims that Amanda was the aggressor and points to Amanda’s act of grabbing 

his phone as the initial act of violence. Appellant’s Br. at 12. Fruth further 

argues that, because Amanda was the initial aggressor, he instinctively shoved 

her as a defensive measure. Id. at 13. 
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[14] Here, the State rebutted Fruth’s claim of self-defense by showing that Fruth did 

provoke, instigate, or participated willingly in the violence and did not have a 

reasonable fear of death or great bodily harm. The State introduced testimony 

that Fruth shoved Amanda during a heated argument. Tr. at 85. The act of 

shoving his wife could lead a reasonable fact-finder to conclude that Fruth 

provoked or instigated the violence. Although Amanda was the first to act, 

grabbing a phone does not constitute provocation. Fruth did not shove Amanda 

until minutes after Amanda grabbed his phone. Fruth responded to Amanda 

with more force than necessary. Second, the State introduced evidence that 

Fruth did not have a reasonable fear of death or great bodily harm. Id. at 110. 

Fruth claims that he shoved Amanda because she hit his blood glucose monitor; 

however, Fruth did not shove his wife until many moments after Amanda 

possibly hit his monitor. Even if Amanda did accidently hit Fruth’s glucose 

monitor, her actions are still not considered to cause a reasonable fear of great 

bodily harm or death. The act of taking Fruth’s phone was not a violent act. 

Thus, Fruth did not have a reasonable fear of death or great bodily harm. 

Therefore, the State rebutted Fruth’s claim of self-defense. 

[15] M.F.’s testimony established sufficient evidence to support the conviction of 

domestic battery in the presence of a child less than sixteen years of age. M.F. 

saw the effect of the battery and was able to hear the exchange. Furthermore, 

Fruth’s claim of self-defense must fail as the State proved that Fruth was not in 

fear of death or great bodily harm and that Fruth provoked or willingly 

participated in the violence. 
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[16] Affirmed. 

Vaidik, C.J., and Altice, J., concur.