Court of Appeals of Indiana | Memorandum Decision 49A04-1408-CR-366 | March 31, 2015 Page 1 of 10

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

Darren Bedwell

Marion County Public Defender

Indianapolis, Indiana

ATTORNEY FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Cynthia L. Ploughe

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Monica McCall,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 31, 2015

Court of Appeals Case No.

49A04-1408-CR-366

Appeal from the Marion Superior

Court.

The Honorable Stanley Kroh, 

Magistrate.

Cause No. 49G16-1404-FD-21490

Sharpnack, Senior Judge
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Statement of the Case

[1] Monica McCall appeals from her conviction after a bench trial of one count of 

Class D felony domestic battery.1 McCall contends that the trial court 

committed reversible error by prohibiting her from testifying about prior crimes, 

wrongs, or other acts allegedly committed by the victim in order to support her 

defenses. We affirm.

Facts and Procedural History

[2] McCall and the victim, B.D., have two children together: six-year-old J.M. and 

eleven-month-old T.M. McCall and B.D. had ended their relationship in 

March 2014, approximately two weeks prior to the incident that is the subject of 

this appeal. After the relationship ended, B.D. resided with his mother at her 

home on Rinehart Street.

[3] On April 23, 2014, McCall drove J.M. and T.M. to the Rinehart Street address 

to leave the children in B.D.’s care so that she could go to the emergency room 

to seek treatment for an outbreak of hives. After arriving at the house, J.M. 

went into the house while T.M. remained in her car seat.

[4] B.D., who had seen McCall pull up in her car in the driveway, came out of the 

house and informed McCall that he could not care for the children at that time 

because he had a job interview that day. Upon hearing this, McCall punched 

 

1

Ind. Code § 35-42-2-1.3 (2012).
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B.D. in the face with a closed fist, causing him pain. The two began to argue 

loudly and McCall began throwing the children’s belongings near the sidewalk. 

McCall also placed her daughter, T.M., who remained in her car seat, near the 

sidewalk. As. B.D. began returning the items, placing them into McCall’s car, 

McCall again struck B.D. on the face with a closed fist, causing what he 

described as a stinging pain. 

[5] The two continued to struggle with McCall removing items and B.D. returning 

items to the car. Stephanie Gyetko, a neighbor, heard the commotion and saw 

McCall pointing and yelling at B.D. She also observed McCall strike B.D. 

Gyetko came out of her house in an attempt to halt the confrontation, but 

before she could say anything to the two, she saw McCall strike B.D. again. At 

that point she yelled that she was calling the police. A few minutes later, after 

McCall had shouted at Gyetko and called her names, McCall drove away.

[6] The State charged McCall with Class D felony domestic battery for striking 

B.D., causing him pain, and for engaging in that behavior in the presence of 

their child. During McCall’s testimony at trial she admitted striking B.D. 

repeatedly on the face, but claimed that she did so because B.D. was removing 

Xanax, for which she had a prescription, from her purse. The trial court found 

McCall guilty of Class D felony domestic battery.2 McCall was sentenced to 

 

2 The State additionally charged McCall with Class D felony battery, Class A misdemeanor domestic battery, 

and Class A misdemeanor battery. The convictions on these additional offenses were merged with the count 

alleging Class D felony domestic battery due to double jeopardy concerns.
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545 days with 533 days suspended, placed on probation for 365 days, and 

ordered to attend twenty-six weeks of domestic violence counseling. McCall 

now appeals. 

Discussion and Decision

[7] In order to prove domestic battery, the State was required to establish beyond a

reasonable doubt that McCall knowingly or intentionally touched B.D., who 

has a child in common with McCall, in a rude, insolent, or angry manner that 

resulted in bodily injury to B.D. in the physical presence of T.M., who was less 

than sixteen years of age. Ind. Code § 35-42-2-1.3. McCall admitted at trial 

that she struck B.D., the father of her two children, in the face with a closed fist 

three times in the presence of their eleven-month-old daughter. B.D.’s and 

Gyetko’s trial testimony corroborated McCall’s admission. However, McCall 

asserts that she did so in defense of herself, because she feared B.D., and in 

defense of her property, the prescription Xanax pills. McCall argues that the 

trial court committed reversible error by prohibiting her from presenting 

evidence she claims was crucial to her defense theories of defense of self and 

defense of property.

[8] “The trial court has broad discretion to rule on the admissibility of evidence.” 

Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). “We review its rulings ‘for 

abuse of that discretion and reverse only when admission is clearly against the 

logic and effect of the facts and circumstances and the error affects a party’s 
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substantial rights.’” Id. (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 

2013)).

[9] A claim of “defense of property is analogous to the defense of self-defense.” 

Hanic v. State, 406 N.E.2d 335, 339 (Ind. Ct. App. 1980). “The standard of 

review for a challenge to the sufficiency of evidence to rebut a claim of selfdefense is the same as the standard for any sufficiency of the evidence claim.”

Sudberry v. State, 982 N.E.2d 475, 481 (Ind. Ct. App. 2013) (quoting Wilson v. 

State, 770 N.E.2d 799, 801 (Ind. 2002). We will not reweigh the evidence or 

judge the credibility of witnesses. Id. A conviction will be affirmed “[i]f there is 

sufficient evidence of probative value to support the conclusion of the trier of 

fact. . . .” Id.

[10] Indiana Code section 35-41-3-2 (2013) provides in pertinent part as follows:

(c) 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. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to 

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

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.

(d) A person:
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(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 or terminate the other person’s unlawful entry of or 

attack on the person’s dwelling, curtilage, or occupied motor 

vehicle.

(e) With respect to property other than a dwelling, curtilage, or 

an occupied motor vehicle, a person is justified in using 

reasonable force against any other person if the person 

reasonably believes that the force is necessary to immediately 

prevent or terminate the other person’s trespass on or criminal 

interference with property lawfully in the person’s possession, 

lawfully in possession of a member of the person’s immediate 

family, or belonging to a person whose property the person has 

authority to protect. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

only if that force is justified under subsection (c).

[11] During McCall’s testimony at trial on direct examination, the following 

exchange took place:

Q: So you bring [T.M.] over and [B.D.] comes out in 

the driveway?

A: Yes.

Q: And what happens when he comes out?

A: We started arguing. He . . .

Q: What were you arguing about?
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A: The children and our situation.

Q: What is the situation?

A: He domesticated me about two weeks before that . . 

STATE: Objection Your Honor.

COURT: All right.

A: He was arrested.

COURT: Yeah, sustained.

Tr. pp. 42-43.

[12] The trial court granted the State’s request that the testimony be stricken from 

the record. McCall then testified that she and B.D. were arguing about the 

division of child care responsibilities.

[13] Later, in McCall’s testimony on direct examination, the following exchange 

took place:

Q: Did you have anything in your front passenger seat?

A: My purse.

Q: What . . .what happened next?

A: As I was getting the stuff out . . . I am putting it into 

the diaper bag [B.D.] goes into the front passenger 

seat and proceeds to grab my Xanax’s [sic] out of 

my purse, which I have a prescription for.

Q: You saw him do that?

A: Yes I did.

Q: What was he doing with them?

A: He was trying to get them out of the bottle to put in 

his pocket.

Q: So what did you do?
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A: I punched him in the face.

Q: Well did you think he was stealing your Xanax’s 

[sic] ?

A: Yes.

Q: Why did you think that?

A: Because he has before.

STATE: Objection Your Honor. I don’t think that is 

relevant and I would ask for that to be stricken.

COURT: Yeah, sustained.

Id. pp. 45-46. McCall then testified that she saw B.D. take the lid off of the 

bottle and saw the pills scatter after she punched him the second time. She 

claimed that she did not punch him because of the babysitting dispute, but 

because she was protecting her property.

[14] The trial court correctly excluded the testimony here. Indiana Evidence Rule 

404(b) prohibits the introduction of evidence of “a crime, wrong, or other act” 

“to prove a person’s character in order to show that on a particular occasion the 

person acted in accordance with the character.” McCall claims on appeal that 

it was improper to exclude her testimony about B.D.’s recent arrest for 

domestic battery because it supported the reasonableness of her actions—

punching B.D.—because she feared he would harm her again. Appellant’s Br. 

pp. 8-9. However, McCall did not present this argument to the trial court. A 

defendant “is limited to the specific grounds argued to the trial court and cannot 

assert new bases for admissibility for the first time on appeal.” Taylor v. State, 
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710 N.E.2d 921, 923 (Ind. 1999). After the trial court sustained the objection, 

McCall moved on with her testimony. This argument has been waived.

[15] Waiver notwithstanding, the testimony could only serve the purpose of proving 

the “forbidden inference” of B.D.’s bad character. McCall could have 

supported her self-defense argument with other evidence that she was afraid of 

B.D. and felt it necessary to punch him. In terms of self-defense, “[f]orce is not 

justified if the defendant enters into combat with another person or is the initial 

aggressor, unless the defendant communicates an intent to withdraw and the 

other person nevertheless continues or threatens to continue unlawful action.” 

Brand v. State, 766 N.E.2d 772, 777 (Ind. Ct. App. 2002), trans. denied. The 

evidence presented by the State overwhelmingly established that McCall was 

the aggressor and was not in fear of B.D. The trial court did not err.

[16] Furthermore, the testimony that B.D. had previously stolen Xanax from 

McCall was properly excluded. McCall testified that she saw him remove the 

bottle from her purse, open the bottle, and attempt to put the pills in the pocket 

of his pants on the date of the offense. Thus, she was allowed to present 

evidence to support her claim of defense of property. McCall did not present 

any argument in support of the admissibility of the testimony about the prior 

incident at trial. Instead, McCall was directed by counsel to focus her 

testimony on what happened on the date in question. Therefore, the only 

purpose that could be served by the testimony would have been to establish

B.D.’s bad character.
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[17] The case against McCall turned on the credibility of the witnesses. McCall 

presented her arguments, but the trial court explicitly found B.D.’s and 

Gyetko’s testimony to be more credible. We will not reweigh the evidence or 

reassess the credibility of witnesses. Heaton v. State, 483 N.E.2d 58, 59 (Ind. 

1985).

Conclusion

[18] In light of the above, we affirm the trial court’s decision.

[19] Affirmed. 

Baker, J., and Riley, J., concur.