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Cole v. State

Court of Appeals of Indiana

April 15, 2015

Brent Cole, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

Page 1127

Appeal from the Monroe Circuit Court. Lower Court Cause No. 53C03-1305-FD-539. The Honorable Kenneth G. Todd, Judge.

ATTORNEY FOR APPELLANT: Frederick A. Turner, Bloomington, Indiana.

ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Larry D. Allen, Deputy Attorney General.

Pyle, Judge. Barnes, J., and May, J., concur.


Page 1128

Pyle, Judge.

Statement of the Case

¶1 Brent Cole (" Cole" ) appeals, following a jury trial, his convictions for Class A misdemeanor strangulation[1] and Class A misdemeanor battery.[2] At trial, Cole did not tender a preliminary instruction on

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self-defense but raised the defense during the course of the trial. There was a motion in limine in place prohibiting any evidence of prior allegations of violence by the victim, but, during trial, Cole made references to his statement--that he had warned the victim to never touch him or his family again--that Cole had made while he pinned the victim to the wall. The references to Cole's statement prompted a juror to submit a question asking who the victim had previously touched. Additional circumstances during Cole's testimony, plus the absence of any instruction regarding Cole's claim of self-defense, led the trial court to draft an admonition setting out an instruction on self-defense and clarifying that any suggestion by Cole that the victim had previously unlawfully touched a member of Cole's family would not constitute a defense to the charges against Cole. The trial court gave a copy of the proposed admonition to the parties, and Cole specifically stated that he had no objection to it. The trial court admonished the jury accordingly during the trial and then included a final instruction on self-defense.

¶2 On appeal, Cole argues that the trial court committed fundamental error by admonishing or instructing the jury during the trial and that the State failed to present sufficient evidence to rebut his claim that he committed his offenses in self-defense. We find that: (1) Cole has waived any claim of error in regard to the admonition; (2) he invited any alleged error by specifically agreeing to the content of the trial court's admonition; and (3) the State presented sufficient evidence that Cole was the initial aggressor and then re-engaged with the victim. As a result, we affirm his convictions.

¶3 Affirmed.


¶4 1. Whether Cole has waived any argument regarding the trial court's admonition on evidentiary matters.

¶5 2. Whether the State presented sufficient evidence to rebut Cole's claim that he committed his offenses in self-defense.


¶6 In May 2013, Joseph Dalton Phillips (" Phillips" ) and his girlfriend, Morgan Cole (" Morgan" ), who is Cole's daughter, were expecting a baby. Phillips was remodeling a house in Monroe County to get it ready for the baby's arrival the following month.

¶7 On May 9, 2013, Phillips and Morgan were at the house, which was still under renovation. Around 9:30 p.m., Phillips dropped Morgan off at her house, where she lived with her mother and Cole.

¶8 Shortly after returning to his house, Phillips heard a knock on the door. Cole, who smelled of alcohol and was carrying a half-full jug of wine, walked into Phillips's kitchen, looked around, and criticized Phillips for the slow progress on the house renovation. Phillips agreed that he needed to get it done, and then Cole " got angry and he began to yell" at Phillips. (Tr. 130). Cole--who had been sitting on a stack of drywall--stood up, " continued to yell" at Phillips, " approached [Phillips] at a pretty quick rate[,]" " put his hands on [Phillips's] chest[,]" and " pinned" Phillips up against the kitchen counter. (Tr. 130). Cole grabbed Phillips's shirt and was yelling at him so closely that Phillips " could feel [Cole's] spit hitting [his] face." (Tr. 132). Phillips, thinking that he " needed to get separation," then pushed Cole away from him. (Tr. 132). Cole tripped over the stack of drywall and knocked over his wine. Phillips told Cole to get out of the house and that he did not want to fight.

Page 1130

Cole got up and moved toward Phillips " very quickly" with his arms facing toward Phillips. (Tr. 134). Phillips tried to grab Cole's arms to stop him, but Phillips " didn't have the strength to stop him[.]" (Tr. 134). Cole grabbed Phillips by the neck and twice punched him in the face with a " closed fist[.]" (Tr. 134). Cole yelled at Phillips, telling him that he " wasn't doing enough" and " wasn't being the role in the family [he] needed to be." (Tr. 134). Cole had his one hand " around [Phillips's] neck and was clenching down to the point where it was closing [his] air passage." (Tr. 135). With his other hand, Cole slapped Phillips's face and told him to say " uncle." (Tr. 134). When Phillips said it, Cole told him that he had not said it loud enough. Cole then slapped Phillips again and told him to " say 'uncle bitch[.]'" (Tr. 135). Phillips said " uncle" as loud as he could, and Cole slapped Phillips again, told him to " stop making excuses for th[e] house[,]" and then let him go. (Tr. 136). Cole then grabbed his jug of wine and left Phillips's house.

¶9 Phillips immediately called the police, and Monroe County Sheriff's Deputy Jeff Feiner (" Deputy Feiner" ) was dispatched to Phillips's house. Phillips had redness and bruising around his neck, a " busted lip," and a black eye. (Tr. 137). Deputy Feiner photographed Phillips's injuries at the scene and then went to Cole's house.

¶10 While at Cole's house, the deputy asked Cole if he was injured, and Cole replied that he was not. As Deputy Feiner talked to Cole, he detected the odor of alcohol on Cole's breath. Cole " described the altercation" to Deputy Feiner and told the deputy that he " had pinned Mr. Phillips in the corner and [had] grabbed his 'neck meat.'" (Tr. 166). When asked by the deputy, Cole told the deputy that he " did not feel threatened" by Phillips and that " Phillips did not advance on him." (Tr. 168). Cole never told the deputy that Phillips had started the fight. Cole stated that " he should have beaten [Phillips's] ass." (Tr. 169). Cole described the events of the evening in a written statement, in which he stated:

Me and [Phillips] got in an arguement [sic]. Me and [Phillips] stood toe to toe. [sic] [Phillips] pushed me down. I pinned [Phillips] to the wall by his neck and told him not to touch me or my family again. I took my left elbow and pinned his neck to the wall and held his neck and or collar with my right hand.

( State's Ex. 7). Deputy Feiner also spoke to Morgan, showed her the photographs of Phillips's injuries, and confirmed that Phillips was not injured when she last saw him.

¶11 Thereafter, the State charged Cole with Class D felony strangulation and Class A misdemeanor battery.[3] On June 16, 2014, the trial court held a jury trial. Prior to trial, the State filed a motion in limine, seeking, in part, to exclude " [a]ny evidence of prior allegations of violence by the named victim or allegations reported to the Department of Child Services regarding the named victim." (App. 18). On the morning of trial, Cole's counsel confirmed that Cole had no objection to the motion and that he understood that he could not talk about any " bad acts." (Tr. 9). The trial court granted the State's motion in limine and ordered the parties to " instruct their witnesses to comply with the terms of the granted" motion. (Tr. 9). Cole did not tender any preliminary jury

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instructions, and the trial court did not instruct the jury on self-defense.

¶12 During opening statements, Cole's attorney stated that Cole went to Phillips's house to confront Phillips about " some statements made to a third party" and to " [a]ccuse [Phillips] of doing that." (Tr. 111). Cole's attorney also made a reference to a claim of self-defense, stating that Phillips had touched Cole first when Phillips pushed him. His attorney stated that Cole then got up, " put the kid up against the wall and told him[,] 'you're not gonna touch me or my family again.'" (Tr. 112). Thereafter, Cole's counsel told the trial court that he was going to tender a self-defense instruction for inclusion in the final jury instructions.

¶13 During the trial, Phillips testified to the facts above and stated that Cole had touched him first. During cross-examination, Cole's attorney asked Phillips if Cole had said anything to him as Cole was hitting him, and Phillips responded that Cole had told him to say " uncle" as Cole choked him. (Tr. 147). Cole's attorney then asked, " Did [Cole] say anything to the effect of do not put your hands on me or my ...

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