MEMORANDUM DECISION                                            Jun 17 2015, 7:54 am

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                                    ATTORNEYS FOR APPELLEE
Suzy St. John                                             Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          George P. Sherman
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

John Hernandez,                                          June 17, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1410-CR-714
        v.                                               Appeal from the Marion Superior
                                                         Court
                                                         The Honorable David Hooper,
State of Indiana,                                        Magistrate
Appellee-Plaintiff                                       Cause No. 49F08-1405-CM-023544




Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015     Page 1 of 12
                                          Case Summary
[1]   John Hernandez (“Hernandez”) was convicted of Carrying a Handgun Without

      a License, as a Class A misdemeanor. 1 He now appeals.


[2]   We affirm.



                                                    Issues
[3]   Hernandez raises two issues for our review. We restate these as:

                    I.    Whether the trial court abused its discretion as to the admission
                          of evidence; and
                  II.     Whether the trial court abused its discretion when it did not
                          instruct the jury as to the defense of necessity.


                                Facts and Procedural History
[4]   On May 5, 2014, Hernandez was a passenger in a car driven by his neighbor,

      Oliver Gray (“Gray”). Indianapolis Metropolitan Police Sergeant Charles

      Butler (“Sergeant Butler”) was on patrol that day, and observed that Gray’s

      vehicle did not have a visible license plate. As a result, Sergeant Butler initiated

      a traffic stop. Gray pulled into a parking lot and drove through several spaces

      before stopping the vehicle.




      1
          Ind. Code § 35-47-2-1(a).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015   Page 2 of 12
[5]   After stopping the vehicle, Gray admitted to Sergeant Butler that his driving

      privileges had been suspended. Gray was arrested.


[6]   Another officer, Todd Wellmann (“Officer Wellmann”), arrived at the scene to

      assist Sergeant Butler. Officer Wellmann approached the passenger side of the

      car where Hernandez was seated and asked Hernandez to get out of the car.

      Hernandez complied and, as he got out of the car, told Officer Wellmann, “I

      have a strap in my pocket.” Tr. at 76. Officer Wellmann understood this to

      mean that Hernandez had a gun in his pocket. Without being asked,

      Hernandez turned around and placed his hands on the car.


[7]   When Officer Wellmann asked Hernandez what he had said, Hernandez

      repeated his statement and pushed out his right hip to indicate where the gun

      was located. When asked, Hernandez admitted that he did not have a permit to

      carry a handgun. Hernandez was then arrested.


[8]   Officer Wellmann provided Hernandez with Miranda warnings, after which

      Hernandez agreed to continue to answer questions. Hernandez initially told

      Officer Wellmann that he knew the pistol had been on the floor of the car and,

      upon the car being stopped, Hernandez put the gun in his pocket. Officer

      Wellmann remained unsure of the details of Hernandez’s story, and eventually

      Hernandez indicated that Gray owned the gun.


[9]   On May 7, 2014, Hernandez was charged with Carrying a Handgun Without a

      License. A jury trial was conducted on September 22, 2014. During the trial,

      Hernandez sought admission into evidence of documentation concerning

      Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015   Page 3 of 12
       Gray’s status as a Serious Violent Felon (“SVF”). The trial court ruled this to

       be inadmissible.


[10]   Also during the trial, Hernandez testified that he was afraid of Gray because

       Gray had bragged openly about having committed a robbery. Hernandez also

       testified that he took the handgun from Gray because Gray had threatened him,

       and Hernandez did not want to risk Gray harming him because the two were

       neighbors. Based on this testimony, Hernandez proffered proposed jury

       instructions as to the affirmative defenses of duress and necessity. The trial

       court issued the instruction on duress, but did not issue an instruction on

       necessity.


[11]   At the conclusion of the trial, the jury found Hernandez guilty as charged. The

       trial court sentenced Hernandez to 365 days imprisonment, with all but four

       days suspended to probation.


[12]   This appeal ensued.



                                  Discussion and Decision
                                      Admission of Evidence
[13]   We turn first to Hernandez’s contention that the trial court abused its discretion

       in its evidentiary rulings. Our standard of review for such matters is well

       settled. Rulings as to the admissibility of evidence are within the sound

       discretion of the trial court, and we review challenges to evidentiary rulings for

       an abuse of that discretion. Hyser v. State, 996 N.E.2d 443, 448 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015   Page 4 of 12
       2013). Even where the trial court’s decision was in error, we will not reverse

       the judgment unless the ruling prejudiced the substantive rights of the appellant.

       Id.


[14]   Hernandez’s challenge stems from the trial court’s ruling excluding testimony

       and documentation concerning 1) Gray’s SVF status; and 2) testimony

       concerning the bases upon which Gray was arrested, which included Possession

       of a Firearm by a SVP. Hernandez argues that the trial court’s exclusion of this

       evidence infringed upon his constitutional rights to present a complete defense

       to the charge of Carrying a Handgun Without a License, given Hernandez’s

       defensive theory of duress.


[15]   A defendant in a criminal case is guaranteed by the United States Constitution

       the right to “‘a meaningful opportunity to present a complete defense.’” Kubsch

       v. State, 784 N.E.2d 905, 924 (Ind. 2003) (quoting Crane v. Kentucky, 476 U.S.

       683, 690 (1986)). Further:

               The right to offer the testimony of witnesses, and to compel their
               attendance, if necessary, is in plain terms the right to present a defense,
               the right to present the defendant’s version of the facts as well as the
               prosecution’s to the jury so it may decide where the truth lies. Just as
               an accused has the right to confront the prosecution’s witnesses for the
               purpose of challenging their testimony, he has the right to present his
               own witnesses to establish a defense. This right is a fundamental
               element of due process of law.
       Kubsch, 784 N.E.2d at 924 (quoting Washington v. Texas, 388 U.S. 14, 19

       (1967)).


[16]   The affirmative defense of duress is defined in our statutes:

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015   Page 5 of 12
               It is a defense that the person who engaged in the prohibited conduct
               was compelled to do so by threat of imminent serious bodily injury to
               himself or another person. With respect to offenses other than
               felonies, it is a defense that the person who engaged in the prohibited
               conduct was compelled to do so by force or threat of force.
               Compulsion under this section exists only if the force, threat, or
               circumstances are such as would render a person of reasonable
               firmness incapable of resisting the pressure.
       I.C. § 35-41-3-8(a).


[17]   Hernandez contends that Gray’s SVF status and the decision of officers at the

       scene of Hernandez’s and Gray’s arrests to list as the basis for Gray’s arrest

       Possession of a Firearm by an SVF were both relevant to and necessary for

       Hernandez’s defensive theory. “Evidence is relevant if: (a) it has any tendency

       to make a fact more or less probable than it would be without the evidence; and

       (b) the fact is of consequence in determining the action.” Ind. Evidence Rule

       401. 2 Though relevant, evidence may nonetheless be excluded “if its probative

       value is substantially outweighed by a danger of one or more of the following:

       unfair prejudice, confusing the issues, misleading the jury, undue delay, or

       needlessly presenting cumulative evidence.” Evid. R. 403.


[18]   Hernandez contends that the SVF-related evidence concerning Gray was

       “exculpatory, unique, and critical” to his defense, Appellant’s Br. at 14, and

       directs us to two cases that he contends are analogous to his own: Hyser, supra,

       and Allen v. State, 813 N.E.2d 349 (Ind. Ct. App. 2004), trans. denied. Our




       2
        Hernandez’s brief quotes the definition of relevance from the Indiana Rules of Evidence that were in effect
       prior to January 1, 2014. This error did not affect our review.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015              Page 6 of 12
       review of the record and of the applicable case law does not bear out

       Hernandez’s characterization of the importance of the SVF-related evidence as

       to Gray.


[19]   At trial, evidence was introduced that Gray was arrested at the scene.

       Hernandez testified that he was afraid of Gray because Gray bragged about

       having a prior felony record, and because Gray had threatened him, ordering

       him to take the gun so that Gray would not have to go back to jail. It is against

       this evidentiary background that Hernandez sought to adduce testimony from

       Sergeant Butler concerning Gray’s SVF status and the specific charge leveled

       against Gray. But as Hernandez himself notes, “[t]estimony about Gray’s SVF

       status was not being offered to prove the truth, but to show the reasonableness

       of Hernandez’s fear…. It is of no concern whether Gray was actually SVF.”

       Appellant’s Reply Br. at 2.


[20]   Hernandez’s argument does not, however, establish how he was prejudiced by

       the trial court’s decision to exclude from evidence the specific information

       about Gray having SVF status. Hernandez designates as error the omission of a

       piece of information, Gray’s purported SVF status. Yet Hernandez presented

       no specific evidence that he was aware of Gray’s status at the time of the

       offense, let alone any evidence as to how Gray having SVF status would make

       more credible either Hernandez’s subjective claim of duress or any objective

       evaluation of that claim.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015   Page 7 of 12
[21]   This differentiates Hernandez’s situation from those of the cases upon which he

       relies, Hyser and Allen. In Hyser, the defendant sought to introduce evidence

       that he had made a child abuse report with respect to another individual,

       Marner, and that Marner in turn threatened Hyser, accused Hyser of

       committing Child Molesting, and influenced an alleged minor victim to testify

       against Hyser. Id. at 448-49. Hyser’s proffered testimony was that “the

       allegations and testimony against him were untrue and fabricated in relation or

       response to the fact that he made a report to DCS” about his concerns over

       Marner’s possible physical abuse of a minor. Id. at 449. That is, Hyser sought

       to adduce a broad set of facts that went not to the reasonableness of a state of

       mind, but to the very reliability of the accusations.


[22]   The contrast with Allen is even greater. In Allen, the defendant was convicted of

       murder where, during an offer of proof, a witness, Bethel, presented extensive

       testimony that he and another individual, Crenshaw, had actually committed

       the offense for which Allen was being tried. 813 N.E.2d at 362. Bethel refused

       to testify in any length before the jury, however, and also refused to testify at a

       deposition, the transcript of which could be presented to the jury. Id. The court

       refused to permit the jury to have access to any of Bethel’s testimony from the

       offer of proof and struck all of the limited testimony Bethel had presented

       before the jury. Id. at 362-63. On appeal, this Court concluded that Allen “had

       the right to present evidence that Crenshaw was involved in the commission of

       the crimes,” and the trial court’s exclusion of Bethel’s testimony “impinged on

       Allen’s right to present a complete defense.” Id. at 363.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015   Page 8 of 12
[23]   In Hyser and Allen, the defendants sought to adduce evidence in the form of

       testimony that was either actually exculpatory or that greatly undermined the

       credibility of accusing witnesses. The exclusion of significant portions of

       testimony from witnesses worked to impede Hyser’s and Allen’s defenses; here,

       Hernandez presented substantive testimony concerning his reasons for being

       afraid of Gray. Hyser and Allen are, then, inapposite.


[24]   We accordingly conclude that Hernandez has failed to establish that the trial

       court’s exclusion of the issue of Gray’s SVF status and of the charges against

       Gray prejudiced any of Hernandez’s substantial rights to present a defense of

       duress.


                           Instruction as to Necessity Defense
[25]   We turn now to Hernandez’s second issue, whether the trial court abused its

       discretion when it denied Hernandez’s proffered jury instruction concerning the

       affirmative defense of necessity. We review a trial court’s instruction of the jury

       for an abuse of discretion. Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010).

       We look to 1) whether the defendant’s tendered instructions correctly state the

       law; 2) whether the there is evidence in the record to support giving the

       instruction; and 3) whether the substance of the proffered instruction is covered

       by other instructions. Id. We will reverse a conviction only where the appellant

       demonstrates that the error in instruction prejudiced his substantial rights. Id.


[26]   The affirmative defense of necessity derives from the common law. Toops v.

       State, 643 N.E.2d 387, 389 (Ind. Ct. App. 1994). As adopted in Indiana, there

       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015   Page 9 of 12
       is a six-part test for determining whether otherwise criminal conduct is excused

       as a result of necessity:

               (1) the act charged as criminal must have been done to prevent a
               significant evil; (2) there must have been no adequate alternative to the
               commission of the act; (3) the harm caused by the act must not be
               disproportionate to the harm avoided; (4) the accused must entertain a
               good-faith belief that his act was necessary to prevent greater harm; (5)
               such belief must be objectively reasonable under all the circumstances;
               and (6) the accused must not have substantially contributed to the
               creation of the emergency. In the event of retrial on remand the
               foregoing elements should be incorporated into any tendered
               instruction on the defense of necessity.
[27]   Patton v. State, 760 N.E.2d 672, 675 (Ind. Ct. App. 2002) (citing Toops, 643

       N.E.2d at 390). As this Court observed in Toops:

               Although the confines of the necessity defense vary from jurisdiction
               to jurisdiction, the central element involves the emergency nature of
               the situation. That is, under the force of extreme circumstances,
               conduct that would otherwise constitute a crime is justifiable and not
               criminal because of the greater harm which the illegal act seeks to
               prevent.
       Toops, 643 N.E.2d at 389.


[28]   Hernandez argues that there was evidence presented at trial to support giving

       his proffered instruction as to necessity, and that the trial court’s failure to issue

       the instruction was reversible error. At trial, Hernandez testified that Gray

       pulled up alongside him as Hernandez was walking to purchase beer, and that

       Gray badgered him until finally Hernandez got in the car. Hernandez testified

       that police pulled the car over shortly afterward and that Gray did not stop

       immediately, because Gray was carrying a gun and would have gone to jail if


       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015   Page 10 of 12
       found with the gun. According to Hernandez, Gray told Hernandez to take the

       gun “or else,” Tr. at 100, from which Hernandez concluded that Gray was

       threatening to shoot him if he did not take the gun. At some point, the gun

       ended up in Hernandez’s lap. Hernandez took the gun and put it in his pocket.


[29]   We cannot agree with Hernandez’s contention that he produced evidence as to

       each of the six elements of the necessity defense. While Hernandez testified at

       trial that he was afraid of Gray because the two were neighbors, an

       unparticularized fear of reprisal does not constitute the type of emergency

       contemplated by a defense of necessity. See, e.g., Patton, 760 N.E.2d at 676-77

       (reversing for failure to instruct on necessity where the defendant argued that he

       had no alternative but to retrieve a gun where a street vendor was “savagely

       beating” the defendant’s brother); Toops, 643 N.E.2d at 387 (reversing for

       failure to instruct the jury on necessity where the defendant, who was

       intoxicated, grabbed the wheel of a car and drove after the vehicle’s driver

       “panicked at the sight of police and dove into the back seat”). Nor was

       Hernandez’s subjective belief that he had to retain the handgun after Gray had

       been removed from the vehicle “objectively reasonable under all the

       circumstances.” Patton, 760 N.E.2d at 675. As the State notes, Hernandez

       could easily have slipped the gun out of his pocket and onto the floor and

       informed Officer Wellmann of the gun’s presence.


[30]   Accordingly, we find no abuse of discretion in the trial court’s decision not to

       issue Hernandez’s proffered instruction as to necessity.



       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015   Page 11 of 12
                                               Conclusion
[31]   Hernandez has failed to establish that he was prejudiced by the trial court’s

       exclusion of Gray’s purported SVF status and the stated reasons for his arrest,

       assuming arguendo the relevance of that information. Hernandez did not

       present evidence at trial sufficient to support giving an instruction to the jury

       concerning the defense of necessity.


[32]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015   Page 12 of 12
