                                                                            FILED
                                                                       Nov 28 2018, 11:42 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Victoria L. Bailey                                        Curtis T. Hill, Jr.
Valerie K. Boots                                          Attorney General of Indiana
Kevin Wild
Marion County Public Defender Agency                      Lyubov Gore
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Larry Ervin,                                              November 28, 2018
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-965
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Kurt Eisgruber,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          49G01-1702-F6-7818



May, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018                            Page 1 of 16
[1]   Larry Ervin appeals his conviction of Level 5 felony criminal recklessness 1 and

      Level 6 felony pointing a firearm. 2 He presents two issues for review, which we

      restate as:


                 1) Whether the State presented sufficient evidence to support his
                    convictions; and


                 2) Whether the trial court abused its discretion when it denied
                    his proposed jury instructions regarding defense of property
                    and defense of others.


      In addition, we address, sua sponte, whether Ervin was subjected to double

      jeopardy. We vacate in part and affirm in part.



                               Facts and Procedural History                                3




[2]   On February 26, 2017, Ervin discovered his iPad was missing. Earlier in the

      day, he had been asked by a neighbor to assist with a car repair. He had last

      seen his iPad prior to helping his neighbor. Ervin contacted the police and was

      told someone would come to take a report. While waiting, Ervin used his Find

      My iPhone application (“App”) and located his iPad in the area where he had




      1
          Ind. Code §§ 35-42-2-2(a) & (b)(1)(A) (2014).
      2
          Ind. Code § 35-47-4-3(b) (2014).
      3
        We heard oral argument on this matter on October 30, 2018, at Rising Sun High School in Rising Sun,
      Indiana. We thank counsel for the quality of their written and oral arguments, for participating in the post-
      argument discussion with the audience, and for commuting to Rising Sun. We especially thank the faculty,
      staff, and students of the Rising Sun High School for their gracious hospitality and thoughtful post-argument
      questions.

      Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018                             Page 2 of 16
      gone to assist his neighbor. Shortly thereafter, Ervin saw, via the App, that his

      iPad was moving around Indianapolis. Ervin decided to follow it.


[3]   Ervin arrived at the intersection of Sherman and Southeastern in Indianapolis

      when the App indicated his iPad was at the same intersection. Ervin saw only

      one other vehicle at the intersection—a black truck that he thought he had seen

      earlier in the day when he tried to help his neighbor. Ervin stopped his truck in

      the middle of the intersection and stepped out to attempt to retrieve his property

      from the person in the black truck. Ervin approached the black truck and

      shouted for the occupant to “Stop, freeze, stop.” (Tr. Vol. II at 75.)


[4]   Anthony Hines was driving the black truck. He had the windows rolled up and

      did not hear Ervin. Hines saw “a big white SUV stop[] in the middle of the

      intersection, a guy hop[] out of a truck, . . . grabbing for something[.]” (Id. at

      57.) Hines had never met Ervin before. Hines then noticed Ervin was pointing

      a gun at him. Hines did not realize a vehicle was behind him, and he put his

      truck in reverse and backed into that vehicle—a Kia Sorento. Without

      stopping, Hines made a “right U-turn[,]” (id. at 58), and started to drive away.

      He heard Ervin start firing at him, “like [Ervin] peppered [Hines’] truck.” (Id.)

      Hines executed the U-turn on the shoulder near a gas station. After verifying

      Ervin was not following him, Hines called 911 and went home. Hines talked to

      police at his home.




      Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018       Page 3 of 16
[5]   Ervin called 911 again after Hines left the scene. Ervin told the dispatcher he

      had attempted to shoot the tires of the truck. The dispatcher told Ervin to

      remain onsite and talk to the responding officer.


[6]   Kristin Armour was an eyewitness. Armour had her twelve-year-old daughter

      in the car with her. The daughter was screaming because of the gun fire.

      Armour called 911 “as soon as [she] seen [sic] [Ervin] pull out the gun[.]” (Id.

      at 75.) Armour parked at the gas station to talk to the police.


[7]   Anthony McGowan, the driver of the Kia, ducked down in his car when shots

      were fired. After the shooting stopped, McGowan exited his vehicle to talk to

      Ervin. McGowan said he “didn’t have any fear [of Ervin] because [he] knew

      [Ervin] wasn’t shooting at [him].” (Id. at 86.)


[8]   Michael Tedders was at the gas station, with his fifteen-year-old son. He heard

      “‘Stop, stop,’ then . . . pop-pop-pop-pop.” (Id. at 92.) He and his son hid in

      their car during the shooting and stayed at the scene to talk to the police.


[9]   Indianapolis Metropolitan Police Department (“IMPD”) Officer Richard

      Faulkner, Sr., was dispatched to the scene pursuant to a report of a

      “disturbance with shots fired.” (Id. at 31.) He was only “about five blocks

      away[,]” (id. at 33), so he arrived in “[l]ess than a minute” after being

      dispatched. (Id. at 34.) He saw “several people in the [gas station] parking lot,

      in the grass area, yelling and waving their hands.” (Id.) The people were

      yelling that Ervin was the shooter and had a gun.



      Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018        Page 4 of 16
[10]   Officer Faulkner located a white truck blocking the intersection with a white

       male walking toward it. Officer Faulkner pulled his gun and “yelled at [Ervin]

       to turn around” and show his hands. (Id. at 39.) Ervin leaned into his truck

       and did not do as he was told. Officer Faulkner had to repeat his order before

       Ervin complied. Officer Faulkner placed Ervin in handcuffs and read his

       Miranda rights to him.


[11]   Ervin told Officer Faulkner what had occurred, i.e., that his iPad had been

       stolen, he had been tracking it, he located it at this intersection, and “he was

       going to initiate a citizen’s arrest.” (Id. at 42.) Ervin told Officer Faulkner that

       he had “started firing rounds at [the truck] because he thought he was going to

       be hit.” (Id.)


[12]   IMPD Officer Kyle Hoover was sent to talk to Hines. He noted that Hines

       “was very rattled, very – he was very upset.” (Id. at 98.) Officer Hoover noted

       Hines’ truck had three bullet holes in it and had damage to the “rear bumper

       tailgate area that would be consistent with a fresh vehicle accident.” (Id. at 99.)

       The bullet holes were all on the passenger side of the truck.


[13]   The State ultimately charged Ervin with Level 5 felony criminal recklessness

       and Level 6 felony pointing a firearm. At trial, Ervin requested the trial court

       give jury instructions for defense of property and for defense of other. The trial

       court stated:


               Ervin precipitated the events, one, by blocking the traffic in the
               intersection, and two, approaching, which was by all apparent –
               based on all the testimony I heard, a weapon was seen either at
       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018         Page 5 of 16
               the side or pulled at some point during this, but I do find that
               [Ervin] precipitated the sequence of events, and the instructions
               will be denied on that basis.


       (Id. at 142.)


[14]   During closing arguments, Ervin’s counsel explained Indiana allows a person to

       use deadly force to defend other people and that was what Ervin was doing.

       Ervin’s counsel also explained Ervin was allowed to use reasonable force to

       protect his property. Ervin argued he was: 1) trying to protect his property by

       approaching the truck in which Ervin believed the property was located; and 2)

       trying to protect people from a reckless driver when the driver of the truck tried

       to race away.


[15]   The jury found Ervin guilty as charged. The trial court agreed with Ervin that

       no malice was present during the events but also agreed with the State that, due

       to the nature of the offense and that it included a firearm, some executed time

       was required. The trial court sentenced Ervin to three years, with two and one-

       half years suspended.



                                  Discussion and Decision
                                             Double Jeopardy
[16]   At oral argument, sua sponte, we asked the parties whether a double jeopardy

       violation occurred herein. Article 1, Section 14 of the Indiana Constitution

       states: “No person shall be put in jeopardy twice for the same offense.” Indiana


       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018        Page 6 of 16
       uses a two-part test for double jeopardy claims by deciding whether the offenses

       share statutory elements or whether the actual evidence used to convict on one

       count also establish the elements of the other count. Lee v. State, 892 N.E.2d

       1231, 1233 (Ind. 2009). Although the counts of pointing a firearm and criminal

       recklessness do not share all statutory elements, we review the evidence

       presented herein to determine whether the jury could have used the same

       evidence to find Ervin guilty of both charges.


[17]   To determine if a jury used the same facts to establish the elements of each

       offense, we consider the evidence, charging information, jury instructions, and

       arguments of counsel. Garrett v. State, 992 N.E.2d 710, 720 (Ind. 2013). The

       charging information alleged as Count I that Ervin “did perform an act that

       created a substantial risk of bodily injury to another person by shooting a

       firearm into . . . a place where people are likely to gather, to wit: a vehicle

       driven by [] Hines while [] Hines was in said vehicle[.]” (App. Vol. II at 47.)

       Count II alleged simply: “Ervin did knowingly or intentionally point a firearm .

       . . at [] Hines[.]” (Id.) The jury instructions also did not clarify whether Ervin

       pointed his gun at Hines at a time different than when Ervin shot his gun at

       Hines. That leaves us with the evidence presented and the arguments made by

       counsel.


[18]   At trial, contrary evidence was presented as to whether Ervin had his iPhone or

       his gun in his hand as he approached Hines’ truck. Ervin, himself, testified he

       approached with his iPhone in his hand but then pulled and raised his gun

       when Hines revved his engine. He stated he then lowered the gun until he

       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018        Page 7 of 16
       thought Hines was going to hit the witnesses at the gas station. At that point,

       all parties agree Ervin started shooting in the direction of the truck. Thus,

       evidence was presented that would have allowed the jury to find that Ervin

       pointed his gun at Hines at a time separate from when Ervin shot his gun at

       Hines.


[19]   When discussing the Level 6 felony pointing a firearm during closing

       arguments, the State argued Ervin pointed the gun when Hines revved the truck

       engine. However, the State followed this statement by saying: “And what

       really settles the fact that he pointed that gun is that Anthony Hines’ truck was

       littered with bullets.” (Tr. Vol. II at 146.) The State then proceeded to go

       through the elements of criminal recklessness wherein it stated the recklessness

       was proven by the fact Ervin “block[ed] traffic,” got “out of [his] vehicle,

       frighten[ed] other individuals who d[id] not know what’s going on, doing it

       with a gun, and firing off seven rounds.” (Id. at 147.) Thus, the State, in

       closing argument, used the fact of Ervin’s shooting the gun as part of the

       evidence to show he pointed the gun, and the State also used the facts occurring

       from the time Ervin stopped his truck to demonstrate that he was criminally

       reckless.


[20]   The possibility of the jury using the same facts to support more than one charge

       cannot be “remote and speculative[.]” Griffin v. State, 717 N.E.2d 73, 89 (Ind.

       1999), cert. denied 530 U.S. 1247 (2000). However, a “reasonable possibility”

       the jury used the same facts would indicate a defendant has been subjected to

       double jeopardy. Id. Herein, the charging information does not allege facts

       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018      Page 8 of 16
       that indicate Ervin pointed the gun at Hines at a time distinct from when he

       pointed the gun at Hines to shoot at him. The preliminary jury instructions

       merely instruct the jurors to consider how the law and evidence “appl[ies] to

       each count individually[,]” (App. Vol. II at 105), and cautions the jurors that

       each element of each charge must be proven by the State. None of the jury

       instructions specifically advised the jury it was required to find a separate act to

       prove each charge. The evidence presented was conflicting as to whether Ervin

       approached Hines’ truck with the gun drawn or drew it only as he prepared to

       shoot. The State invited the jury to use the fact Hines’ truck was “littered with

       bullets[,]” (Tr. Vol. II at 146), to support the charge of pointing a firearm, which

       is the same evidence supporting the charge of criminal recklessness.


[21]   While the jury may have based its verdict on the fact Ervin approached Hines’

       truck with the gun pointed at the truck, an action that could reasonably be

       presumed to be separate from Ervin pulling the gun immediately prior to

       shooting, the jury was also free to use the drawing of the gun immediately

       before Ervin started firing to support both charges. Therefore, there is a

       reasonable probability that a double jeopardy violation occurred. Accordingly,

       the lesser charge of pointing a firearm must be vacated. See Richardson v. State,

       717 N.E.2d 32, 55 (Ind. 1999) (when a double jeopardy violation occurs, the

       proper outcome is to “vacate the conviction with the less severe penal

       consequences”), holding modified on other grounds by Garrett v. State, 992 N.E.2d

       710 (Ind. 2013).




       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018       Page 9 of 16
                                            Sufficiency of Evidence
[22]   Ervin argues the State did not present sufficient evidence to overcome his

       defense of property and defense of others claims. Ervin claims he was

       defending his property when he approached Hines’ truck. Thereafter, when

       Hines was driving away, Ervin claims he was defending others from an erratic

       driver. 4 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). A claim of

       defense of other is also analogous to a claim of self-defense. Rondeau v. State, 48

       N.E.3d 907, 919 (Ind. Ct. App. 2016), trans. denied.


[23]   Our standard for reviewing a challenge to the sufficiency of evidence to rebut a

       claim of self-defense is the same standard used for any claim of insufficient

       evidence. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). We neither

       reweigh the evidence nor judge the credibility of the witnesses. Adetokunbo v.

       State, 29 N.E.3d 1277, 1280 (Ind. Ct. App. 2015). We consider only the




       4
           As to Ervin’s claim he was making a lawful citizen’s arrest, Indiana Code section 35-33-1-4 states:

                  (a) Any person may arrest any other person if:
                           (1) the other person committed a felony in his presence;
                           (2) a felony has been committed and he has probable cause to believe that the other person
                           has committed that felony; or
                           (3) a misdemeanor involving a breach of peace is being committed in his presence and the
                           arrest is necessary to prevent the continuance of the breach of peace.
       Ervin did not see anyone, let alone Hines, steal the iPad. In order for the theft of the iPad to qualify as the
       lowest level felony, the iPad needed to be worth “at least seven hundred fifty dollars ($750)[.]” Ind. Code §
       35-43-4-2(a)(1). No proof of the iPad’s value was presented at trial. Therefore, Ervin’s claims of making a
       lawful citizen’s arrest are without merit because the alleged theft of his iPad was not “committed in [Ervin’s]
       presence[.]” Ind. Code § 35-33-1-4(a)(3).

       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018                               Page 10 of 16
       probative evidence and reasonable inferences supporting the trial court’s

       decision. Id. “A conviction will be affirmed 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. at 1280-81.


[24]   To prove Ervin committed Level 6 felony criminal recklessness, the State

       needed to present evidence Ervin “recklessly, knowingly, or intentionally

       perform[ed] an act that create[d] a substantial risk of bodily injury to another

       person . . . while armed with a deadly weapon[.]” Ind. Code §§ 35-42-2-2(a) &

       (b)(1)(A) (2014).


[25]   “A valid claim of self-defense is legal justification for an otherwise criminal

       act.” Wallace, 725 N.E.2d at 840.


               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.


       Ind. Code § 35-41-3-2(c).


       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018        Page 11 of 16
               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).


       Ind. Code § 35-41-3-2(e).


[26]   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. Wilson v.

       State, 770 N.E.2d 799, 800 (Ind. 2002). “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.” King v. State, 61 N.E.3d 1275, 1283 (Ind. Ct.

       App. 2016), trans. denied. “The State may meet this burden by rebutting the

       defense directly, by affirmatively showing the defendant did not act in self-

       defense, or by simply relying upon the sufficiency of its evidence in chief.” Id.

       If a defendant is convicted despite his claim of self-defense, we will reverse only

       if no reasonable person could say that self-defense was negated beyond a

       reasonable doubt. Wilson, 770 N.E.2d at 801.

       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018      Page 12 of 16
[27]   The witnesses all testified Ervin stopped in the middle of the intersection and

       shot at Hines’ truck. Ervin, himself, also agrees he did those things. Ervin did

       not have the right to be in the middle of the intersection blocking all traffic. No

       evidence was presented Hines provoked the interaction; rather, all evidence

       points to the fact Ervin instigated it and willingly pursued it. The existence of

       either of these facts negates Ervin’s claims of defense of property and defense of

       others. Therefore, without examining the final prong regarding reasonable fear

       of death or great bodily harm, we can unequivocally say the State met its

       burden to overcome Ervin’s claims because Ervin had no right to block traffic

       and Ervin instigated the situation. See, e.g., King v. State, 61 N.E.3d 1275, 1284

       (Ind. Ct. App. 2016) (State rebutted self-defense claim by presenting evidence

       King instigated the altercation), trans. denied.


[28]   Nevertheless, if we examine whether Ervin could have had reasonable fear of

       death or great bodily harm, the State still overcame Ervin’s claims. When

       viewing a claim of self-defense, we look to both a subjective and objective

       component: “(1) a defendant must have actually believed that the use of force

       was necessary to protect himself or herself; and (2) the belief must have been

       one that a reasonable person would have held under the circumstances.”

       Schermerhorn v. State, 61 N.E.3d 375, 383 (Ind. Ct. App. 2016), trans. denied.


[29]   Ervin’s belief Hines had stolen his iPad was speculative—he did not see Hines

       steal it and he did not see Hines exercising unauthorized control over the iPad.

       Ervin’s decision to shoot a gun in the direction of not only the fleeing truck but

       also the group of people he now argues he was trying to protect is beyond the

       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018     Page 13 of 16
       scope of what a reasonable person would have believed necessary. No

       evidence, beyond Ervin’s subjective belief, was presented that anyone was in

       reasonable fear of death or great bodily harm from Hines. Ervin’s belief in his

       right to effectuate a citizen’s arrest in these circumstances was not only

       incorrect but his decision to do so in such a manner put more people at risk and

       was utterly unreasonable.


[30]   The State presented sufficient evidence to prove Ervin committed criminal

       recklessness and, in the process of presenting such evidence, overcame Ervin’s

       claims of defense of property and defense of others. See Huls v. State, 971

       N.E.2d 739, 747 (Ind. Ct. App. 2012) (State effectively overcame claim of

       defense when it presented evidence Huls “instigated and participated in the

       violence”), trans. denied.


                                              Jury Instruction
[31]   “The manner of instructing a jury is left to the sound discretion of the trial

       court.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied.

       When we review the trial court’s decision regarding jury instructions, we

       consider “(1) whether the tendered instruction correctly states the law; (2)

       whether there is evidence in the record to support the giving of the instruction;

       [and] (3) whether the substance of the tendered instruction is covered by other

       instructions which were given.” Davis v. State, 355 N.E.2d 836, 838 (Ind. 1976)

       (internal citations omitted). “When the claimed error is the failure to give an

       instruction . . . a tendered instruction is necessary to preserve error because,


       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018      Page 14 of 16
       without the substance of an instruction upon which to rule, the trial court has

       not been given a reasonable opportunity to consider and implement the

       request.” Scisney v. State, 701 N.E.2d 847, 848 n.3 (Ind. 1998) (emphasis in

       original).


[32]   A defendant in a criminal case is entitled to have the jury instructed on any

       theory of defense that has some foundation in evidence, Creager v. State, 737

       N.E.2d 771, 777 (Ind. Ct. App. 2000), trans. denied, even if the evidence is weak

       and inconsistent. Id. It is within the province of the jury to determine whether

       the defendant’s evidence was believable, unbelievable, or sufficient to warrant

       the use of force. Id. Generally, the determination whether a defendant acted in

       self-defense is a question of fact for the jury. Id. However, the evidence on

       which the claim is based must have some “probative value to support it.” Id.


[33]   Ervin claims the trial court abused its discretion when it refused to give the

       instructions regarding defense of property and defense of others. He argues that

       even though the trial court thought he had provoked the incident, he had

       presented enough evidence to support the instruction being read.


[34]   As a matter of law, as discussed supra, Ervin could not have been acting in

       defense of his property or others as he was not in a place he was allowed to

       be—blocking an intersection—and as he instigated and provoked the situation.

       Therefore, the trial court properly declined to give Ervin’s proposed

       instructions. See id. at 778 (when evidence “supports the trial court’s conclusion




       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018     Page 15 of 16
       as a matter of law” that defendant was not in a place he or she was allowed to

       be, the trial court did not err in refusing to give a self-defense instruction).



                                                Conclusion
[35]   As the jury may have used the same evidence to support its verdict of guilt on

       both charges, we vacate the charge of Level 6 felony pointing a firearm.

       Because the State presented sufficient evidence of Level 5 felony criminal

       recklessness and overcame Ervin’s defense claims, we affirm that conviction.

       As a matter of law, Ervin was not in a place he was allowed to be and he

       instigated the situation, such that the trial court did not err when it refused to

       give jury instructions regarding defense of property and defense of others.

       Accordingly, we vacate in part and affirm in part.


[36]   Vacated in part and affirmed in part.


       Baker, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018        Page 16 of 16
