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:

BARBARA J. SIMMONS GREGORY F. ZOELLER

Oldenburg, Indiana Attorney General of Indiana

JAMES B. MARTIN

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

DESMOND McGEE, )

)

Appellant-Defendant, )

)

vs. ) No. 49A05-1311-CR-555

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Linda E. Brown, Judge

Cause No. 49F10-1304-CM-21382

June 26, 2014

MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge 
2

In this case, a verbal altercation between two co-workers quickly turned violent. 

Appellant-defendant Desmond McGee punched the victim, Kristopher Krafcsik, in the 

jaw. McGee claimed that he acted in self-defense because Krafcsik’s “tone and words” 

made him feel as though his physical safety was in danger. Appellant’s Br. p. 8. 

Although McGee was initially charged with Battery, 1 a class A misdemeanor, for 

inflicting bodily injury upon Krafcsik, the trial court found him guilty of the lesserincluded offense of class B misdemeanor battery.2

 We reject McGee’s claim of selfdefense, concluding that the evidence was sufficient to support McGee’s conviction and 

affirm the judgment of the trial court.

FACTS

Krafcsik and McGee worked together at Blossom Chevrolet in Indianapolis. On 

February 6, 2013, Krafcsik was walking through the door to the business. At some point, 

McGee approached Krafcsik and accused him of leaving some paperwork in McGee’s 

office. Krafcsik replied that he did not know what McGee was talking about and denied 

leaving any documents in his office. After McGee made these accusations two more 

times, McGee told Krafcsik to clean his office. In response, Krafcsik, who testified that 

he was standing about thirty feet away, told McGee to “go f**k [himself.]” Tr. p. 8. 

Krafcsik claimed that McGee “closed that thirty feet really quick,” approached 

Krafcsik, and “socked” [him] in the jaw.” Id. McGee’s punch initially shocked Krafcsik, 

 

1

Ind. Code § 35-42-2-1(a)(1)(A).

2

I.C. § 35-42-2-1(a).
3

but it subsequently caused him pain. Krafcsik raised his hands to his face to make sure 

that McGee was not going to hit him again. McGee then got “up into” Krafcsik’s chest 

and threatened him, while three other individuals were attempting to restrain him. Id. at 

9. 

Krafcsik stepped away after McGee punched him. When Krafcsik turned from 

McGee and began walking toward the sales office, McGee was “right in [Krafcsik’s] ear”

behind him. Id. at 10. Krafcsik then asked if McGee was going to “sucker punch” him 

again. Id. Krafcsik interrupted a manager’s meeting and explained what had occurred. 

McGee admitted that he “pushed” Krafcsik, but denied pushing him “in the face.” 

Tr. p. 45. McGee claimed that he shoved Krafcsik to “get some separation between 

[them],” and thought that Krafcsik “was going to try to do something” because Krafcsik 

had raised his voice. Id. at 42, 45. 

The State charged McGee with class A misdemeanor battery. However, following 

a bench trial on October 22, 2013, McGee was found guilty of battery, a class B 

misdemeanor, as a lesser-included offense. McGee was subsequently sentenced, and he 

now appeals.

DISCUSSION AND DECISION

In addressing McGee’s challenge to the sufficiency of the evidence, we do not 

reweigh the evidence or judge the credibility of the witnesses, and respect “the jury’s 

exclusive province to weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 

126-27 (Ind. 2005). We will affirm the defendant’s conviction if the probative evidence 
4

and reasonable inferences drawn from the evidence could have allowed a reasonable trier 

of fact to find the defendant guilty beyond a reasonable doubt. Id. Under Indiana Code 

section 35-42-2-1(a), a person who “knowingly or intentionally touches another person in 

a rude, insolent, or angry manner commits battery, a class B misdemeanor.” 

Here, Krafcsik testified that McGee “closed that 30 feet really quick” between the 

two of them shortly after the incident began. Tr. p. 8. McGee approached Krafcsik and 

punched him in the jaw. Id. And even McGee’s self-serving account of the incident, 

claiming that he pushed Krafcsik—but not in the face—supports his conviction for 

battery as a class B misdemeanor. In short, McGee’s claim is inviting us to make a 

credibility determination and reweigh the evidence, which we will not do. McHenry, 820 

N.E.2d at 126-2. 

Additionally, we note that to prevail on a claim of self-defense, the defendant must 

show that he is justified in using reasonable force against another person to protect 

himself from what that person reasonably believes to be the imminent use of unlawful 

force. I.C. § 35-41-3-2(c). For McGee to succeed on his self-defense claim, he was 

required to demonstrate that he was in a place where he had a right to be, he did not 

provoke, instigate, or participate willingly in the violence, and had a reasonable fear of 

death or great bodily harm. Boyer v. State, 883 N.E.2d 158, 162 (Ind. Ct. App. 2008). 

Also, the amount of force used to protect oneself must be proportionate to the urgency of 

the situation. Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. App. 1995). 
5

While McGee claims that he was acting in self-defense when he “pushed” 

Krafcsik, we review the question of whether the State negated the defendant’s claim of 

self-defense beyond a reasonable doubt. Boyer, 883 N.E.2d at 162. We look solely to 

the evidence most favorable to the verdict together with all reasonable inferences to be 

drawn therefrom. Id. We will reverse a conviction where the defendant claims selfdefense only if no reasonable person can say that the State disproved self-defense beyond 

a reasonable doubt. Id. 

Here, the State’s evidence established that McGee instigated the confrontation 

with Krafcsik and punched Krafcsik in the jaw. Tr. p. 8. The trial court, as the finder of 

fact, could reasonably find that there was no evidence of a physical attack from 

Krafcsik—imminent or otherwise—that McGee would have been justified to repel. That 

said, even if the trial court had chosen to credit McGee’s account that he “pushed” 

Krafcsik to “get some separation,” the trial court could reasonably conclude that 

Krafcsik’s alleged act of raising his voice to McGee did not justify McGee’s use of 

physical force. Thus, we reject McGee’s claim of self-defense and affirm his conviction. 

The judgment of the trial court is affirmed.

BARNES, J., and CRONE, J., concur.