      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                        FILED
      regarded as precedent or cited before any                               Jun 27 2018, 10:00 am

      court except for the purpose of establishing                                 CLERK
                                                                               Indiana Supreme Court
      the defense of res judicata, collateral                                     Court of Appeals
                                                                                    and Tax Court
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Kimberly A. Jackson                                      Curtis T. Hill, Jr.
      Indianapolis, Indiana                                    Attorney General
                                                               Caryn N. Szyper
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      John A. Johnson,                                         June 27, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               52A02-1711-CR-2617
              v.                                               Appeal from the Miami Circuit
                                                               Court
      State of Indiana,                                        The Honorable Timothy P. Spahr,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               52C01-1005-FB-16



      Mathias, Judge.

[1]   John A. Johnson (“Johnson”) was convicted after a jury trial in Miami Circuit

      Court of Class B felony aggravated battery, Class D felony criminal


      Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018             Page 1 of 12
      recklessness, and of being a habitual offender. Johnson appeals his convictions

      and raises three issues which we restate as:


        I.    Whether the trial court erred when it failed to sua sponte instruct the jury
              on self-defense;

       II.    Whether there was sufficient evidence to support Johnson’s criminal
              recklessness conviction; and

      III.    Whether Johnson’s convictions for aggravated battery and criminal
              recklessness violated Indiana’s prohibition against double jeopardy.


      We affirm.


                                 Facts and Procedural History
[2]   On April 28, 2010, David and Susan Stair were at their home in Peru, Indiana,

      with their daughter Paula Portwood (“Portwood”) and her boyfriend Melvin

      Jones (“Melvin”). The two couples were drinking and celebrating the Stairs’

      anniversary and David Stair’s birthday. Around 2:30 a.m. on April 29,

      Portwood and Melvin began arguing in the Stairs’s yard. During the argument,

      Portwood picked up a wooden baseball bat and smashed the windows and

      headlights out of the vehicle she owned with Melvin. Portwood also dented the

      hood of the vehicle with the bat.


[3]   Johnson lived across the street from the Stairs in his mother’s home. Johnson

      heard the argument from inside the home, and he stepped outside onto the front

      porch to confront Melvin and Portwood. Johnson was specifically angry about

      the loud noise because his mother had a doctor’s appointment that morning in


      Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018   Page 2 of 12
      Indianapolis. Johnson stepped out onto the porch a couple of times, and on one

      occasion, Johnson told Melvin, “you don’t shut the f*** up and leave me the

      f*** alone on my property and I’m going inside and I’m going to grab

      something up and I’m going to hurt you with it.” Ex. Vol., State’s Ex. 47.


[4]   Johnson then went inside, grabbed a .22 caliber rifle, returned to the porch, and

      told Melvin and Portwood to “[s]hut the F up or I’m going to shoot you[.]” Tr.

      Vol. 2, p. 138. Portwood responded, “Yeah, right,” at which point Johnson

      fired his weapon. Id. at 139. Portwood explained that she “heard the first fire

      and I felt something pass my face, and Melvin had pushed me out of the way

      and he took the second bullet, and then pretty sure I heard a third fire.” Id.1

      Melvin was hit in the left arm, and he immediately fell to the ground.


[5]   Peru City Police Department Officer Jon Richardson (“Officer Richardson”)

      arrived soon after the shooting, and he spoke with Melvin and Portwood.

      Melvin indicated to Officer Richardson that the shot came from the direction of

      Johnson’s mother’s residence. An ambulance arrived, and Melvin was first

      taken to a local hospital but had to be transported by helicopter to a hospital in

      Fort Wayne because of the severity of the injury. Meanwhile, Officer

      Richardson approached Johnson’s mother’s home where he spoke with




      1
        We acknowledge that Johnson stated in his confession to Peru Police Department Officer Rod Richard
      (“Officer Richard”) that he only fired one shot, see Ex. Vol., State’s Ex. 47–48. However, Portwood testified
      she heard three shots, Melvin testified he heard more than one shot, and Susan Stair testified she heard at
      least two shots. Tr. Vol. 2, pp. 126–27, 139, 179. And on appeal, we view the facts most favorable to the
      jury’s verdict.

      Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018              Page 3 of 12
      Johnson’s mother and determined that Johnson was not there. Officers

      proceeded to drive around the surrounding area to look for Johnson, but they

      did not find him that night.


[6]   Around 9:00 a.m. later that morning, Officer Rod Richard (“Officer Richard”)

      obtained a warrant to search Johnson’s mother’s residence. When officers

      executed the warrant, they immediately found a spent .22 caliber shell casing

      on the porch next to a cigarette butt. At the conclusion of the search, officers

      had discovered eighteen live .22 caliber cartridges, eight spent .22 caliber

      cartridges, and four lead projectiles inside the home. While Officer Richard was

      executing the search warrant, he came in contact with Johnson, read him his

      Miranda rights, and asked him questions about the shooting the night before.


[7]   Johnson initially told Officer Richard that he was walking with a friend until

      5:00 a.m. that morning. Officer Richard attempted to verify Johnson’s story,

      but determined that it did not check out. Officer Richard then had Johnson

      transported to the Peru Police Department where he conducted a tape-recorded

      interview. During the interview, Johnson eventually admitted to shooting

      Melvin and explained, “Yeah I shot the mother f[*****] because he a retarded

      stupid mother f[*****] from out of town that didn’t belong here. And if I had a

      chance, I’d try my damnedest to hit him in the f[******] head next time if it

      came down to it.” Ex. Vol. State’s Ex. 48.


[8]   On May 5, 2010, the State charged Johnson with Class B felony aggravated

      battery, Class B felony unlawful possession of a firearm by a serious violent


      Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018   Page 4 of 12
       felon, Class C felony criminal recklessness resulting in serious bodily injury,

       and Class D felony criminal recklessness. The State added a habitual offender

       allegation five days later. Johnson entered into a plea agreement that called for

       a sentence of twenty-five years executed in the Indiana Department of

       Correction (“DOC”). However, Johnson later filed a petition for post-

       conviction relief indicating that he wanted to have the plea agreement set aside.

       And because of a defect in the change of plea hearing, the trial court granted

       Johnson’s petition on January 15, 2017, and it set aside the original plea

       agreement.


[9]    Thereafter, the State decided to prosecute Johnson on all of the original

       charges. A three-day jury trial commenced on July 24, 2017, after which the

       jury found Johnson guilty of Class B felony aggravated battery, Class D felony

       criminal recklessness, and of being a habitual offender.2 On August 31, the trial

       court sentenced Moore to an aggregate term of thirty-eight years executed in the

       DOC,3 and it ordered Johnson to pay $61,701.92 in restitution to Melvin.


[10]   Johnson now appeals.




       2
        The State dismissed the count for Class C felony criminal recklessness resulting in serious bodily injury
       prior to trial, and it dismissed the count for Class B felony unlawful possession of a firearm by a serious
       violent felon after the jury’s initial verdict. Tr. Vol. 2, p. 51; Tr. Vol. 3, pp. 96–97.
       3
           Because Johnson had been imprisoned since April 29, 2010, he received credit for 5,362 days.


       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018               Page 5 of 12
                                   I. Jury Instruction on Self-Defense

[11]   Johnson first argues that the trial court had a duty to instruct the jury sua sponte

       on the issue of self-defense and that its failure to do so constituted fundamental

       error. A trial court has broad discretion in how it instructs a jury, and we review

       its discretion only for abuse. McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015).

       Here, Johnson did not tender a self-defense instruction, nor did he object to any

       of the instructions given by the trial court. Our trial rules require that a party

       specifically object to any deficiency in jury instructions in order to preserve that

       issue for appeal. Ind. Crim. Rule 8(b); Ind. Trial Rule 51(C). Therefore,

       Johnson has waived the issue on appeal.


[12]   In an effort to circumvent waiver, Johnson contends that “[t]he evidence of

       self[-]defense was so substantial” that the trial court committed fundamental

       error by failing to sua sponte instruct the jury on self-defense. Appellant’s Br. at

       22. We have consistently explained that “[f]undamental error is an extremely

       narrow exception to the waiver rule, and the defendant faces the heavy burden

       of showing that the alleged error is so prejudicial to the defendant’s rights as to

       make a fair trial impossible.” Grimes v. State, 84 N.E.3d 635, 640 (Ind. Ct. App.

       2017), trans. denied.


[13]   Here, the only evidence supporting Johnson’s claim of self-defense comes from

       his police interview on the morning of the shooting. In that interview, Johnson

       claimed that he shot at Melvin because Melvin was repeatedly punching

       Portwood in the face. He indicated that he could see blood fly from her face as

       Melvin hit her and that her face was “all black and blue.” Ex. Vol., State’s Ex.
       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018   Page 6 of 12
       48. However, both Melvin and Portwood testified at trial that they did not have

       a physical altercation on the night of the shooting. Trial Tr. Vol. 2, pp. 138,

       154, 194. Officer Richard testified that the area underneath Portwood’s left eye

       was slightly red and puffy, Id. at 230, but this does not conform with Johnson’s

       allegation that Melvin punched her in the face multiple times.


[14]   Moreover, even if we fully credit Johnson’s account of the shooting, he told

       Officer Richard that he fired his weapon as Portwood walked away from

       Melvin and towards her parents’ house. Our supreme court has explained that

       “[a] person claiming self-defense cannot reasonably base a belief that the threat

       is imminent on the actions of another who has withdrawn from the

       confrontation.” Henson v. State, 786 N.E.2d 274, 278 (Ind. 2003). By Johnson’s

       own admission, Portwood was not in imminent danger at the time he shot

       Melvin, and therefore, Johnson was not entitled to an instruction on self-

       defense.


[15]   For these reasons, there was no error in this case—much less fundamental

       error—when the trial court failed to sua sponte instruct the jury on self-defense.

       See Harris v. State, 268 Ind. 594, 377 N.E.2d 632, 634 (1978) (concluding that

       the trial court did not commit fundamental error when it failed to sua sponte

       instruct the jury on self-defense, even though there was some evidence that

       might support a self-defense claim).




       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018   Page 7 of 12
                                     II. Sufficiency of the Evidence

[16]   Johnson next contends that the evidence is insufficient to sustain his conviction

       for Class D felony criminal recklessness. When reviewing a claim of insufficient

       evidence to sustain a conviction, we consider only the probative evidence and

       reasonable inferences supporting the verdict. Jackson v. State, 50 N.E.3d 767,

       770 (Ind. 2016). It is the fact-finder’s role, not ours, to assess witness credibility

       and weigh the evidence to determine whether it is sufficient to support a

       conviction. Id. We will affirm the conviction unless no reasonable fact-finder

       could have found the elements of the crime proven beyond a reasonable doubt.

       Id. It is therefore not necessary that the evidence overcome every reasonable

       hypothesis of innocence; rather, the evidence is sufficient if an inference may

       reasonably be drawn from it to support the verdict. Drane v. State, 867 N.E.2d

       144, 147 (Ind. 2007).


[17]   At the time of Johnson’s offense, Indiana Code sections 35-42-2-2(b)(1) &

       (c)(2)(A) provided that “[a] person who recklessly . . . performs [] an act that

       creates a substantial risk of bodily injury to another person” commits Class D

       felony criminal recklessness if the act “is committed while armed with a deadly

       weapon.” Indiana Code section 35-41-2-2(c) explains that “[a] person engages

       in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and

       unjustifiable disregard of harm that might result and the disregard involves a

       substantial deviation from acceptable standards of conduct.” Here, Johnson

       alleges that “[t]he record [] contains no evidence that he shot with plain,

       conscious, and unjustifiable disregard of harm that might result to Portwood”

       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018   Page 8 of 12
       because “[w]hen Johnson fired, he was aiming at Melvin in an attempt to save

       Portwood, not to subject her to any harm.”4 Appellant’s Br. at 25–26. We

       disagree.


[18]   The record before us indicates that Johnson fired a .22 caliber rifle in the

       direction of both Melvin and Portwood from his mother’s porch. Susan Stair

       heard at least two shots fired, Portwood felt something pass by her face before

       Melvin was hit in his left shoulder, and Melvin heard shots fired in their

       direction before he fell to the ground. Our courts have consistently found

       sufficient evidence to uphold a conviction for criminal recklessness for actions

       far less egregious than Johnson’s actions here. See, e.g., Al-Saud v. State, 658

       N.E.2d 907, 910 (Ind. 1995) (defendant brandished an unloaded weapon and

       pointed it at an individual); Tipton v. State, 981 N.E.2d 103, 106 (Ind. Ct. App.

       2012) (defendant fired a weapon into an uninhabited home), trans. denied; Smith

       v. State, 688 N.E.2d 1289, 1291 (Ind. Ct. App. 1997) (defendant fired a weapon

       in his backyard at an old car). For these reasons, we find the jury could

       reasonably conclude that by firing a .22. caliber rifle at Melvin and Portwood,

       Johnson performed an act that created a substantial risk of bodily injury to

       Portwood. Accordingly, the evidence was sufficient to support Johnson’s

       criminal recklessness conviction.




       4
        The charging information for Johnson’s Class D felony criminal recklessness count states in part that
       “Johnson did recklessly and/or knowingly and/or intentionally with a deadly weapon, to wit: .22 caliber
       gun, perform an act, to-wit: shooting a gun that created a substantial risk of bodily injury to Paula K.
       Portwood[.]” Appellant’s App. Vol. 3, p. 10.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018            Page 9 of 12
                                    III. Double Jeopardy Concerns

[19]   Finally, Johnson alleges that his convictions for aggravated battery and criminal

       recklessness violate Indiana’s prohibition against double jeopardy under the

       actual-evidence test. He maintains that these convictions were based upon the

       same conduct of drawing his rifle and firing it.


[20]   Article 1, Section 14 of the Indiana Constitution provides, “No person shall be

       put in jeopardy twice for the same offense.” We review double jeopardy claims

       de novo on appeal. Sloan v. State, 947 N.E.2d 917, 920 (Ind. 2011). And we

       analyze alleged violations of Indiana’s Double Jeopardy Clause pursuant to our

       supreme court’s opinion in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). In

       Richardson, our supreme court held that:


               [T]wo or more offenses are the “same offense” in violation of
               Article I, Section 14 of the Indiana Constitution, if, with respect
               to either the statutory elements of the challenged crimes or the
               actual evidence used to convict, the essential elements of one
               challenged offense also establish the essential elements of another
               challenged offense.


       717 N.E.2d at 49 (emphasis in original).

[21]   Under the “actual evidence” test, Johnson must demonstrate a reasonable

       possibility that the evidentiary facts used by the fact-finder to establish the

       essential elements of one offense may also have been used to establish all of the

       essential elements of a second challenged offense. Id. at 53. And this court has

       explained:


       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018   Page 10 of 12
               Application of this test requires the court to identify the essential
               elements of each of the challenged crimes and to evaluate the
               evidence from the jury’s perspective[.] Therefore, we consider the
               essential elements of the offenses, the charging information, the
               jury instructions, the evidence, and the arguments of counsel.
               The term reasonable possibility turns on a practical assessment of
               whether the jury may have latched on to exactly the same facts
               for both convictions.


       Bunch v. State, 937 N.E.2d 839, 845–46 (Ind. Ct. App. 2010), trans. denied

       (citations and quotations omitted).


[22]   Johnson argues that his convictions violate double jeopardy because they “were

       based on Johnson’s firing of the rifle: specifically, his firing of one shot, as the

       record does not support a finding of multiple shots and the State did not suggest

       during its closing arguments that multiple shots were fired.” Appellant’s Br. at

       29. We disagree.


[23]   We first note that Johnson’s aggravated battery conviction was based on his

       shooting Melvin in the left arm, and the criminal recklessness conviction was

       based on his shooting in the direction of Portwood. See Appellant’s App. Vol. 3,

       pp. 7, 10. The jury heard Johnson’s police interview in which he told Officer

       Richard that he only fired one shot. However, the jury also heard Susan Stair

       testify that she heard two or three shots, Portwood testify that she heard two or

       three shots, and Melvin testify that he heard “shots.” Tr. Vol. 2, pp. 126–27,

       139, 179. And although officers only recovered one spent shell casing from the

       front porch, they also recovered several spent shell casings and live ammunition

       from Johnson’s mother’s home.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018   Page 11 of 12
[24]   The facts supporting the aggravated battery conviction demonstrate that

       Johnson shot Melvin in the left arm. And Johnson’s conviction for criminal

       recklessness is supported by evidence that Johnson fired his rifle more than

       once and in the direction of Portwood.5 For these reasons, we cannot say that

       the jury used a single gunshot to support both of Johnson’s convictions, and

       therefore, his convictions for aggravated battery and criminal recklessness do

       not violate double jeopardy.


                                                    Conclusion
[25]   Based on the facts and circumstances before us, the trial court did not err when

       it failed to sua sponte instruct the jury on self-defense, there was sufficient

       evidence to support Johnson’s conviction for criminal recklessness, and

       Johnson’s convictions do not violate Indiana’s prohibition against double

       jeopardy. Accordingly, we affirm.


       Riley, J., and May, J., concur.




       5
         Even if Johnson only fired one shot, there would be still be no double jeopardy violation here because there
       were two separate victims. Johnson’s act inflicted a significant injury on Melvin, and it also created a
       substantial risk of bodily injury to Portwood. See Rawson v. State, 865 N.E.2d 1049, 1055–56 (Ind. Ct. App.
       2007) (holding that convictions for aggravated battery and criminal recklessness did not violate double
       jeopardy where defendant shot at an individual and in the direction of his home), trans. denied; Whaley v.
       State, 843 N.E.2d 1, 15 (Ind. Ct. App. 2006) (holding that two convictions for resisting law enforcement did
       not violate double jeopardy even though defendant’s actions involved a single incident of resisting because
       defendant injured two people as a result of his resistance), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 52A02-1711-CR-2617 | June 27, 2018             Page 12 of 12
