      MEMORANDUM DECISION                                                     FILED
                                                                         Sep 08 2016, 9:30 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                            CLERK
                                                                          Indiana Supreme Court
      precedent or cited before any court except for the                     Court of Appeals
                                                                               and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Ruth A. Johnson                                           Gregory F. Zoeller
      Marion County Public Defender                             Deputy Attorney General
      Indianapolis, Indiana
                                                                Katherine M. Cooper
      Hilary B. Ricks                                           Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana


                                                   IN THE
          COURT OF APPEALS OF INDIANA

      John Johnson,                                            September 8, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1511-CR-2001
              v.                                               Appeal from the Marion Superior
                                                               Court.
                                                               The Honorable Sheila A. Carlisle,
      State of Indiana,                                        Judge.
      Appellee-Plaintiff.                                      Cause No. 49G03-1504-F1-012180




      Garrard, Judge

[1]   Following a jury trial, John Johnson was found guilty of attempted murder as a

      Level 1 felony. Finding that no error occurred below, we affirm.


[2]   The facts most favorable to the verdict are as follows. After midnight, on April

      4, 2015, Latwron Stephens went to a bar in downtown Indianapolis to celebrate

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-2001 | September 8, 2016    Page 1 of 10
      his birthday. He was accompanied by his girlfriend, his brother, his uncle, and

      a friend. Johnson and his girlfriend also were at the bar. Approximately ten or

      fifteen minutes after Latwron and his group arrived, Johnson walked past the

      group and gave the men in the group “dirty looks.” Tr. p. 195. Approximately

      ten minutes later, Johnson returned and he and Latwron confronted each other.

      Latwron’s brother was standing beside him at the time. Latwron asked

      Johnson, “What’s your problem?” Id. at 197. Johnson replied, “You don’t

      want none of this, little homie.” Id. Johnson then brandished a gun and shot

      Latwron several times. As Latwron turned and attempted to run away,

      Johnson shot Latwron several more times. Latwron, who was shot a total of

      nine times, fell to the floor. Witnesses testified that Latwron did not have a

      weapon in his possession. Johnson then left the bar. Latwron survived his

      wounds and was able to identify Johnson from a photo array as the shooter.


[3]   Three days after the shooting incident, Johnson and his girlfriend voluntarily

      appeared at the Indianapolis Metropolitan Police Department (IMPD)
                                                                                                     1
      headquarters. Both provided taped statements regarding the incident. Johnson

      was arrested and eventually charged with attempted murder as a Level 1
                 2
      felony.




      1
        The taped statements were not introduced as exhibits during Johnson’s trial and are not included in the
      record on appeal.
      2
          Ind. Code § 35-42-1-1(1) (2014) (Murder), Ind. Code § 35-41-5-1 (2014) (Attempt).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-2001 | September 8, 2016           Page 2 of 10
[4]   Johnson’s defense at trial was that he was acting in self-defense. At trial,

      Johnson tendered pattern jury instructions on self-defense and the mistake of

      fact defense. The trial court refused to instruct the jury on the mistake of fact

      defense. Following the jury trial, Johnson was found guilty as charged.


[5]   Johnson now appeals arguing the prosecutor committed misconduct in the form

      of a Doyle violation, and the trial court erroneously refused Johnson’s tendered

      instruction on the mistake of fact defense.


                                                        1.

[6]   Although not specifically framed as such, Johnson’s first claim, as set forth in

      his Appellant’s brief, is that the prosecutor violated the rule set out in Doyle v.

      Ohio, 426 U.S. 610, 96 S. Ct. 2240, 49 L. Ed. 2d 91 (1976). In Doyle, the United

      States Supreme Court held that using a defendant’s post-arrest, post-Miranda

      silence to impeach an exculpatory story told for the first time at trial, violates

      the defendant’s rights under the Due Process Clause of the Fourteenth

      Amendment. Id. at 618-619, 96 S. Ct. at 2245, 49 L. Ed. 2d at 98. “The key to

      Doyle is that it protects the defendant from being found guilty simply on the

      basis of a legitimate choice to remain silent.” Trice v. State, 766 N.E.2d 1180,

      1183-84 (Ind. 2002).


[7]   “Where a defendant asserts a Doyle violation, he ‘ordinarily bears the burden of

      showing that Miranda warnings were given prior to the post-arrest silence used

      by the state for impeachment purposes.’” Lainhart v. State, 916 N.E.2d 924, 936

      (Ind. Ct. App. 2009) (quoting 3 Wayne R. LaFave, Criminal Procedure § 9.6(a)

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-2001 | September 8, 2016   Page 3 of 10
      n.47 (3d ed. 2007)). To determine whether a Doyle violation denied a defendant

      a fair trial, we must examine five factors: (1) the use to which the prosecution

      puts the post-Miranda silence; (2) who elected to pursue the line of questioning;

      (3) the quantum of other evidence indicative of guilt; (4) the intensity and

      frequency of the reference; and (5) the availability to the trial court judge of an

      opportunity to grant a motion for mistrial or to give curative instructions.

      Barton v. State, 936 N.E.2d 842, 852-53 (Ind. Ct. App. 2010), trans. denied.


[8]   During Johnson’s jury trial, IMPD Officer Timothy Fogarty testified for the

      State. On cross-examination, Johnson’s counsel asked the officer certain

      questions regarding Johnson’s taped statement to the police. The following

      took place:


              [Defense Counsel:] And Mr. Johnson spoke with you, but he
              exercised his right not to speak about the case without an attorney; is that
              right?
              [Officer Fogarty:] Yes, sir.
              [Defense Counsel:] But you did ask him if he could tell you
              where the weapon was?
              [Officer Fogarty:] That question was asked.
              [Defense Counsel:] And without asking for an attorney, he told you
              where you could find the weapon?
              [Officer Fogarty:] Yes, sir.


      Tr. pp. 413-14 (emphasis added). On re-direct examination, the prosecutor

      asked the following questions of Officer Fogarty:




      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-2001 | September 8, 2016   Page 4 of 10
               [Prosecutor:] . . . And when he did talk to you, did he ever say
               anything about seeing another gun there?
               [Officer Fogarty:] No, sir.
               [Prosecutor:] Or being concerned about a gun there?
               [Officer Fogarty:] No, sir.
               [Prosecutor:] Even mention another gun?


      Tr. pp. 425-26. Defense counsel objected on grounds that Johnson “[had]

      exercised his right not to speak to counsel. He cannot be punished or made to

      look bad because he exercised his constitutional right, which is what [the

      prosecutor] is attempting to do at this point.” Tr. p. 426. After discussion

      between the trial court, defense counsel, and the prosecutor, the prosecutor

      decided not to pursue the line of questioning. The trial court did not rule on

      defense counsel’s objection.


[9]   On appeal, Johnson claims the prosecutor’s line of questioning amounted to a
                           3
      Doyle violation. The State, however, argues no Doyle violation occurred

      because Johnson failed to present evidence regarding when he was Mirandized.

      In his reply brief, Johnson appears to agree with the State’s argument and

      concede this fact, stating “[t]he State is correct that Johnson’s argument does

      not actually fall under Doyle . . . because [Officer] Fogarty did not testify that




      3
       Johnson frames this issue in part as a violation of his Fifth Amendment privilege against self-incrimination.
      However, a Doyle violation is a violation of the Fourteenth Amendment’s Due Process Clause prohibition
      against fundamental unfairness. See Sobolewski v. State, 889 N.E.2d 849, 856 (Ind. Ct. App. 2008), trans.
      denied.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-2001 | September 8, 2016          Page 5 of 10
       Johnson had been Mirandized prior to asserting his right to terminate the

       interview.” Appellant’s Reply Br. p. 5. Although Johnson failed to present

       evidence as to when he was Mirandized, we will presume, based upon Officer

       Fogarty’s testimony at trial, that Johnson was Mirandized at some point.

       Nevertheless, without evidence indicating when Johnson was Mirandized, we

       cannot find that a Doyle violation occurred. We, therefore, find no error.


                                                         2.

[10]   Johnson next claims the trial court erred when it refused his tendered pattern

       jury instruction on the mistake of fact defense. When reviewing the refusal of a

       tendered instruction, we must determine whether the instruction correctly states

       the law, whether the evidence supports giving the instruction, and whether the

       substance of the instruction is covered by the other instructions given. Miller v.

       Ryan, 706 N.E.2d 244, 248 (Ind. Ct. App. 1999), trans. denied. It is error to

       refuse an instruction if there is evidence in the record to support the theory set

       forth in the instruction; however, the trial court has considerable discretion in

       determining which issues have been raised by the trial evidence and in

       determining the form in which instructions will be given. Id.


[11]   Indiana Code section 35-41-3-7 (1977) governs the mistake of fact defense and

       provides: “It is a defense that the person who engaged in the prohibited

       conduct was reasonably mistaken about a matter of fact, if the mistake negates

       the culpability required for commission of the offense.” “‘[I]n order for mistake

       of fact to be a valid defense, three elements must be satisfied: (1) the mistake

       must be honest and reasonable; (2) the mistake must be about a matter of fact;
       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-2001 | September 8, 2016   Page 6 of 10
       and (3) the mistake must negate the culpability required to commit the crime.’”

       Nolan v. State, 863 N.E.2d 398, 404 (Ind. Ct. App. 2007) (quoting Giles v. State,

       699 N.E.2d 294, 300 (Ind. Ct. App. 1998)), trans. denied. In reviewing whether

       the evidence was such as to require a mistake of fact instruction, we consider

       whether the evidence relevant to that defense could, if believed by the jury, have

       created a reasonable doubt in the jury’s mind that the accused acted with the

       requisite mental state. See Stoner v. State, 442 N.E.2d 983, 985 (Ind. 1982).


[12]   The information here charged that Johnson

               . . . did attempt to commit the crime of Murder, which is to
               intentionally kill another human being, namely: [Latwron]
               Stephens, by engaging in conduct, that is: shooting a deadly
               weapon, that is: a handgun, at and against the person of
               [Latwron] Stephens with the specific intent to kill [Latwron]
               Stephens, which conduct constituted a substantial step toward
               the commission of said crime of Murder . . . .


       Appellant’s App. p. 27. Johnson tendered the following pattern jury instruction

       on the mistake of fact defense:

               It is an issue whether the Defendant mistakenly committed the
               acts charged.
               It is a defense that the Defendant was reasonably mistaken about
               a matter of fact if the mistake prevented the Defendant from:
               [Intentionally/Knowingly/Recklessly] committing the acts
               charged
               (Or)
               [Committing the acts charged with specific intent to (specify
               specific intention for crime)].

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-2001 | September 8, 2016   Page 7 of 10
                The State has the burden of proving beyond a reasonable doubt
                that the Defendant was not reasonably mistaken.


       Id. at 100. The instruction was refused by the trial court.


[13]   In support of his argument that the trial court erred in refusing the mistake of

       fact instruction, Johnson cites Hoskins v. State, 563 N.E.2d 571 (Ind. 1990), and

       attempts to distinguish his case from Hoskins. In Hoskins, the defendant, who

       was charged with attempted murder, challenged the trial court’s refusal of his

       instruction on mistake of fact. Hoskins argued on appeal that the acts of the

       three victims gave him the mistaken belief that one of the victims had a gun and

       that he was in more danger than he actually was. Our Supreme Court found

       that the evidence did not support a mistake of fact defense but only served as

       evidence to support self-defense. Id. at 576.


[14]   Hoskins’ charging information contained a “knowing” mens rea, and not the
                                                      4
       mens rea of specific intent to kill. Johnson points out that unlike Hoskins’

       charging information, his charging information included the proper mens rea.

       Thus, according to Johnson,


                [a] mistaken belief that one (1) of the two (2) persons standing
                less than two (2) feet in front of him [(that is, Latwron’s brother)]
                was pulling out a gun to follow through on [Latwron’s verbal




       4
         In 1991, our Supreme Court reaffirmed that attempted murder instructions must include the required mens
       rea of specific intent to kill. See Spradlin v. State, 569 N.E.2d 948, 950 (Ind. 1991) (holding that to convict a
       defendant of attempted murder, the defendant must have intended to kill the victim at the time the defendant
       took a substantial step toward committing murder).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-2001 | September 8, 2016             Page 8 of 10
               threat that he was going] to kill [Johnson] very likely would have
               created doubt in the [jurors’] minds that Johnson specifically
               intended to kill [Latwron] when he fired at him. . . .
               [E]rroneously thinking that his life was in, or about to be in,
               danger, he was entitled to fire first and ask questions later.


       Appellant’s Br. p. 18.


[15]   Johnson does not argue on appeal that, had the facts been as he believed them

       to be, his act of shooting Latwron would not have been criminal. See Payne v.

       State, 854 N.E.2d 7, 20 (Ind. Ct. App. 2006) (“[T]he mistake of fact defense is

       available where the defendant, acting under a reasonable and honest mistake

       concerning a fact or facts commits an act which, if the facts were as the

       defendant believed them to be, would not be criminal.”). Instead, Johnson’s

       argument is that he may have intentionally engaged in the prohibited conduct

       because he mistakenly believed he was acting in self-defense. The differing

       mens reas do not convince us that Johnson’s case is different from that of

       Hoskins. We find that, like Hoskins, the evidence Johnson offered to support

       his mistake of fact defense was actually evidence that supported his claim of

       self-defense. See Hoskins, 563 N.E.2d at 576 (“Rather, the evidence offered by

       appellant in support of his mistake of fact theory was actually evidence of

       justification supporting the predicate to his claim of self-defense.”) Because the

       evidence in this case does not support the giving of a mistake of fact defense

       instruction, the trial court did not err in refusing Johnson’s tendered instruction.


[16]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-2001 | September 8, 2016   Page 9 of 10
[17]   Baker, J., and Najam, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-2001 | September 8, 2016   Page 10 of 10
