FOR PUBLICATION
ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

SCOTT KING                                    GREGORY F. ZOELLER
Woodward, Buls, Blaskovich & King, LLP        Attorney General of Indiana
Merrillville, Indiana
                                              MONIKA PREKOPA TALBOT
                                              IAN MCLEAN
                                              Deputy Attorneys General
                                              Indianapolis, Indiana

                                                                            FILED
                                                                       Aug 06 2012, 9:02 am
                             IN THE
                   COURT OF APPEALS OF INDIANA                                 CLERK
                                                                             of the supreme court,
                                                                             court of appeals and
                                                                                    tax court




DONALD GREGORY HULS,                          )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )      No. 64A04-1110-CR-552
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                    APPEAL FROM THE PORTER SUPERIOR COURT
                         The Honorable William E. Alexa, Judge
                            Cause No. 64D02-0906-FC-5880


                                    August 6, 2012

                             OPINION - FOR PUBLICATION


BARTEAU, Senior Judge
                                 STATEMENT OF THE CASE

       Donald Gregory Huls appeals his two convictions of criminal recklessness, one as

a Class C felony and one as a Class D felony. Ind. Code § 35-42-2-2 (2006). We

affirm.1

                                               ISSUES

       Huls raises three issues, which we restate as:

       I.      Whether Huls was entitled to a mistrial based on his claim of prosecutorial
               misconduct.

       II.     Whether the trial court abused its discretion by rejecting Huls’ proposed
               jury instructions on self-defense and mistake of fact.

       III.    Whether the State provided sufficient evidence to rebut Huls’ claim of self-
               defense.

                           FACTS AND PROCEDURAL HISTORY

       On the night of June 14, 2009, four teenagers, A.M., E.M., C.M., and J.G., were at

a party at a friend’s house in Valparaiso, Indiana. At around midnight, they decided to

walk to a convenience store for snacks. It was dark, the neighborhood was not well-lit,

and the teenagers were unfamiliar with the area. As they walked along Highway 30, they

passed a wooded area with heavy underbrush. Suddenly, the teenagers heard someone

shout, “Hey,” which was followed by a gunshot. Tr. p. 132. They sought cover in the

woods. More shots were fired in their direction, and A.M. was shot in the right leg.

Some of the teenagers heard a man shout, “Get the f**k out of here.” Id. at 173. At that


1
  We heard oral argument on June 21, 2012 at Indiana State University during the Hoosier Girls State
program. We thank the parties for their helpful presentations, and we thank Indiana State University and
Hoosier Girls State for their hospitality.
                                                   2
point, C.M. shouted, “We’re getting out of here. We’re going. Stop shooting.” Id.

However, their assailant continued shooting. The teenagers returned to Highway 30, with

two of them carrying A.M., and called 911.

       The police arrived at the scene shortly afterwards.     However, they had been

dispatched in response to a 911 call by Huls, whose property overlooked and included a

portion of the wooded area. Huls had told the 911 dispatcher that he had shot at people

who were trying to break into his house. A.M. was taken to the hospital, and the officers

took the other three teenagers into custody. Next, the officers went to Huls’ house, where

he told the officers he had been unloading his recreational vehicle when he heard noises

in the woods and opened fire with his pistol. Huls acknowledged hearing someone

asking him to stop shooting because they were leaving, and he told the officers that in

response he fired more bullets until his clip was empty, reloaded his gun, and fired

additional bullets. He then went inside and called 911. Huls stated that he never saw

who was in the woods because it was dark. The police recovered fourteen shell casings

at Huls’ property.

       The State charged Huls with two counts of criminal recklessness and one count of

pointing a firearm at another person, a Class D felony, Ind. Code § 35-47-4-3 (1995).

       At trial, Huls called expert witness Steven Michael Neese to testify. Neese had

prepared a diagram of Huls’ property showing the pattern of Huls’ gunshots. During

direct examination, Huls attempted to ask Neese if Neese’s testimony was consistent with

Huls’ statement to the police, and the State objected because Neese had not read the



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statement. When Huls attempted to show Neese a copy of Huls’ statement, the following

discussion occurred:

       [Huls]:         Okay. You’re looking at State’s Exhibit No. 25(A), recorded
                       statement of Donald Gregory Huls taken by the Porter County
                       Sheriff’s Department, 15th day of June 2009.

       [State]:        Judge, I’m going to object to this because the defendant is
                       here to testify. He can’t now learn—

       [Huls]:         Objection, Your Honor. Leave to approach the bench?

       The Court:      Yes, you may.

       (Bench conference held.)

       [Huls]:         Judge, I move for mistrial. I move for mistrial.

Tr. pp. 528-29. During a subsequent discussion outside the presence of the jury, Huls

asserted that the State had improperly commented on his failure to testify, but he did not

request an admonishment, stating that “no curative instruction, the case law is clear, can

unring that bell.” Id. at 529-30. Later in the discussion, the trial judge stated, “I don’t

think a curative instruction would help at all. In fact, it will just draw attention to it.” Id.

at 533. The trial court took the motion for mistrial under advisement and continued with

the presentation of evidence. The trial court denied Huls’ motion after the jury retired to

deliberate. The jury found Huls guilty of both counts of criminal recklessness but not

guilty of pointing a firearm. The trial court sentenced Huls accordingly, and this appeal

followed.




                                               4
                             DISCUSSION AND DECISION

                              I. REQUEST FOR MISTRIAL

       Huls claims that at trial, the prosecutor improperly commented upon his failure to

testify in violation of his privileges against self-incrimination under the Fifth Amendment

to the United States Constitution and Article 1, Section 14 of the Indiana Constitution.

The State responds that Huls waived this claim for appellate review. The State further

argues that if the claim is not waived, the prosecutor’s comment did not place Huls in a

position of grave peril.

       It is well established that when an improper statement is alleged to have been

made, failure to request an admonishment or to move for mistrial results in waiver of the

claim for appellate review. Dumas v. State, 803 N.E.2d 1113, 1117 (Ind. 2004). The

State contends that Huls waived his challenge to the prosecutor’s comment because Huls

moved for a mistrial but did not request an admonishment. We disagree. Huls’ motion

for mistrial sufficiently articulated to the trial court Huls’ challenge to the prosecutor’s

comment. Furthermore, the trial court agreed with Huls that an admonishment would not

have helped. Thus, Huls’ claim is preserved for our review. Cf. id. (determining that

Dumas’ claim of prosecutorial misconduct was waived because Dumas neither requested

an admonishment nor moved for mistrial).

       Turning to the merits of Huls’ claim, the denial of a motion for mistrial lies within

the sound discretion of the trial court, and this Court reviews only for abuse of that

discretion. Lucio v. State, 907 N.E.2d 1008, 1010 (Ind. 2009). A mistrial is an extreme

remedy and should be granted only when no other action will remedy the situation. Id. at

                                             5
1010-11. The trial judge is in the best position to gauge the surrounding circumstances

and the impact on the jury when deciding whether a mistrial is appropriate. Oliver v.

State, 755 N.E.2d 582, 585 (Ind. 2001).

       In reviewing a claim of prosecutorial misconduct, we determine whether the

prosecutor engaged in misconduct and, if so, whether the misconduct, under the

circumstances, placed the defendant in a position of grave peril to which he or she should

not have been subjected. Brown v. State, 912 N.E.2d 881, 899 (Ind. Ct. App. 2009),

trans. denied.   The gravity of peril turns on the probable persuasive effect of the

misconduct on the jury’s decision rather than the degree of impropriety of the conduct.

Id. A defendant’s privilege against compulsory self-incrimination is violated when a

prosecutor makes a statement that is subject to reasonable interpretation by a jury as an

invitation to draw an adverse inference from a defendant’s silence. Boatwright v. State,

759 N.E.2d 1038, 1043 (Ind. 2001).

       In this case, during Huls’ presentation of his case-in-chief, the State objected to

Huls’ attempt to show his expert witness a copy of his statement to police, noting: “I’m

going to object to this because the defendant is here to testify.” Tr. p. 528. The

prosecutor’s statement was a clear reference to Huls’ availability to testify. However, the

statement was isolated in nature, and it does not appear that the prosecutor was

deliberately attempting to prejudice the jury to deprive Huls of a fair trial. See Watkins v.

State, 766 N.E.2d 18, 26 (Ind. Ct. App. 2002) (determining that a prosecutor’s comments

during closing arguments that Watkins had failed to present evidence did not have a



                                             6
probable persuasive impact on the jury because the comments were not intended to

improperly influence the jury), trans. denied.

       Huls asserts that the prosecutor’s comment prejudiced him because he had initially

cooperated with investigators, and the prosecutor’s reference to Huls’ failure to testify at

trial “created even more of an invitation for the jury to infer guilt by Mr. Huls’ silence.”

Appellant’s Reply Br. p. 3. We disagree. Here, there is no dispute that Huls shot at the

teenagers and that one of his shots struck A.M. in the leg. Huls argued that he acted to

defend himself and his property, but the evidence at trial demonstrated that the teenagers

were not on Huls’ property and were not the aggressors. Furthermore, Huls opened fire

without identifying his target, and he continued to fire even after the teenagers shouted to

him that they were leaving. In light of this evidence, we conclude that the prosecutor’s

isolated comment did not have a probable persuasive effect on the jury and did not place

Huls in grave peril. See Redmon v. State, 734 N.E.2d 1088, 1093 (Ind. Ct. App. 2000)

(determining that the prosecutor’s comment during closing arguments on Redmon’s

failure to provide evidence to dispute the charge of marijuana possession did not have a

probable persuasive effect on the jury in light of the other evidence against Redmon).

Therefore, the trial court did not err by denying Huls’ motion for mistrial.

                         II. PROPOSED JURY INSTRUCTIONS

       Huls argues that the trial court erred by rejecting two instructions he tendered on

his claim of self-defense and one instruction he tendered on the defense of mistake of

fact. The State contends that Huls’ proposed instructions were flawed and that the trial

court’s instructions were adequate.

                                             7
      The manner of instructing the jury lies largely within the sound discretion of the

trial court, and we review the trial court’s decision only for abuse of that discretion.

Boney v. State, 880 N.E.2d 279, 293 (Ind. Ct. App. 2008), trans. denied. In reviewing a

trial court’s decision to give or refuse tendered jury instructions, the appellate court

considers: (1) whether the 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 that are given.

Corbett v. State, 764 N.E.2d 622, 629 (Ind. 2002).

      In this case, Huls tendered several instructions on self-defense. His Tendered

Final Instruction Number 3 (“Instruction 3”) provides:

             Because the defendant has raised the defense of legal authority,
      particularly self-defense; defense of others and defense of property
      adjoining his dwelling, the burden is now on the State of Indiana to negate
      the presence of one or more of the necessary elements of those defenses
      beyond a reasonable doubt.
             The questions concerning the existence of the imminent use of
      unlawful force; the unlawful entry upon the Defendant’s property; the
      necessity or apparent necessity of using force, as well as the amount of
      force necessary to repel an attack or terminate the unlawful entry upon the
      Defendant’s property, can only be determined from the standpoint of the
      Defendant at the time and under all existing circumstances. In using force
      to protect person or property, the Defendant ordinarily is required to act
      immediately, without time to deliberate and investigate.           In such
      circumstances, the danger which exists only in appearance is as real and
      imminent to him as if it were actual.
             The important question is: Was the danger actual to the Defendant’s
      comprehension? It is not whether an injury or unlawful entry of property
      was actually intended by the assailants, but whether it presented a danger
      from the Defendant’s point of view under the circumstances.




                                            8
Appellant’s App. p. 65. The trial court rejected this instruction because it did not think

the instruction reflected “the absolute state of the law.” Tr. p. 567. Huls’ Tendered Final

Instruction Number 4 (“Instruction 4”) provides,

              Actual danger is not necessary to justify self-defense. The question
       of the existence of such danger, the necessity or apparent necessity to act,
       and the amount of force necessary to resist a perceived attack can only be
       determined from the standpoint of the accused under all of the
       circumstances existing at the time. If a person is confronted by an
       appearance of danger which arouses in his mind an honest conviction that
       he is about to suffer death or great bodily harm, and if a reasonable person
       in the same situation, knowing the same facts, would be justified in
       believing himself in danger, then the accused’s right of self-defense is the
       same whether the danger is real or not. A person may use the force
       reasonably necessary to resist an attack or apparent attack. He will not be
       accountable for an error in judgment as to the amount of force necessary
       provided he acted reasonably and honestly.

Appellant’s App. p. 66. The trial court rejected this instruction because it concluded it

was covered by other instructions, and the court did not “believe that the person’s

mindset can be a defense to reckless conduct.” Tr. p. 571.

       Our Supreme Court has determined that a claim of self-defense “includes both

subjective and objective components.” Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007).

Specifically, one must demonstrate a “subjective belief that force was necessary to

prevent serious bodily injury [ ] and that such actual belief was one that a reasonable

person would have under the circumstances.”         Id.   Here, Huls’ Instruction 3 and

Instruction 4 unduly emphasized that the validity of the use of force in self-defense “can

only be determined from the standpoint of the accused” without also instructing them to

equally consider whether Huls’ belief was objectively reasonable under the



                                            9
circumstances. Therefore, his proposed instructions incorrectly stated the law on self-

defense, and the trial court did not abuse its discretion by refusing them.

       Huls also tendered a proposed jury instruction on the defense of mistake of fact,

which provided:

              It is a defense that the defendant was reasonably mistaken about a
       matter of fact if that mistake caused the defendant to commit the offense
       with which he is charged. The state has the burden of proving beyond a
       reasonable doubt that the defendant was not reasonably mistaken.

Appellant’s App. p. 67. The trial court refused this instruction without explanation.

       A defendant is entitled to an instruction on any defense which has some

foundation in the evidence. Potter v. State, 684 N.E.2d 1127, 1135 (Ind. 1997). In

determining whether the evidence required an instruction upon a defense of mistake of

fact, we consider whether the evidence relevant to it, if believed, could have created a

reasonable doubt in the jury’s mind that the accused had acted with the requisite mental

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

       Huls argues that he was entitled to a mistake of fact instruction because he

presented evidence that he believed someone was on his property and was coming toward

him. Although this evidence was presented to the jury, it could not have created a

reasonable doubt as to whether Huls acted recklessly, the minimum level of culpability

required for the offense of criminal recklessness. See Ind. Code § 35-42-2-2. A person

engages in conduct recklessly if he or she 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. Ind. Code § 35-41-2-2 (1977). It is not


                                             10
an acceptable standard of conduct to fire a handgun into the night without determining

who is there or whether the person poses a threat. See Nordstrom v. State, 627 N.E.2d

1380, 1383 (Ind. Ct. App. 1994) (determining that even if Nordstrom genuinely believed

that his gun would not fire without a clip inserted, it was inherently reckless for him to

point the gun at his wife and pull the trigger under any circumstances, so his belief did

not negate the culpability for reckless homicide), trans. denied. The evidence does not

support the giving of Huls’ proposed jury instruction on mistake of fact; thus, the trial

court did not abuse its discretion by rejecting the instruction.

                         III. SUFFICIENCY OF THE EVIDENCE

       Huls argues that the State failed to rebut his claim of self-defense. The State

contends that the jury’s verdict is supported by the evidence.

       When a claim of self-defense is raised and finds support in the evidence, the State

has the burden of negating at least one of the necessary elements. Wilson v. State, 770

N.E.2d 799, 800 (Ind. 2002). The standard of review for a challenge to the sufficiency of

evidence to rebut a claim of self-defense is the same as the standard for any sufficiency of

the evidence claim. Id. at 801. We neither reweigh the evidence nor judge the credibility

of witnesses.    Id.   If there is sufficient evidence of probative value to support the

conclusion of the trier of fact, then the verdict will not be disturbed. Id.

       A valid claim of defense of oneself, another person, or one’s property is legal

justification for an otherwise criminal act. Id. at 800. Pursuant to the governing statute:

       A person:



                                              11
              (1) is justified in using reasonable force, including deadly force,
                  against any other person; and

              (2) does not have a duty to retreat;

       if the person reasonably believes that the force is necessary to prevent or
       terminate the other person’s unlawful entry of or attack on the person’s
       dwelling, curtilage, or occupied motor vehicle.

Ind. Code § 35-41-3-2(d) (2006). Nevertheless, a defendant is not justified in using force

if “the person has entered into combat with another person or is the initial aggressor

unless the person withdraws from the encounter and communicates to the other person

the intent to do so and the other person nevertheless continues or threatens to continue

unlawful action.” Ind. Code § 35-41-3-2(g)(3). Thus, in order to prevail on a claim of

self-defense, the defendant must show that he or she: (1) was in a place where he or she

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, 770 N.E.2d at 800.

Furthermore, an initial aggressor must withdraw from the encounter and communicate the

intent to do so to the other person before he or she may claim self-defense. Tharpe v.

State, 955 N.E.2d 836, 844 (Ind. Ct. App. 2011), trans. denied.

       Here, Huls contends that the evidence establishes that he shot at the teenagers

because he believed it necessary to protect himself and his property. We disagree. Two

of the teenagers stated that they never entered his property. Furthermore, the police

found a hat belonging to one of the teenagers in the wooded area next to Huls’ property

rather than on Huls’ property. In any event, Huls opened fire without identifying his

target, and after he opened fire he did not attempt to end the encounter and communicate


                                             12
his intent to do so, in violation of the statute. See Ind. Code § 35-41-3-2(g)(3). To the

contrary, Huls continued to shoot even after C.M. shouted at Huls to stop firing and

stated that he and his companions were leaving. Thus, the evidence demonstrates that

Huls instigated and participated in the violence, and the State carried its burden of

negating Huls’ claim of self-defense.

                                    CONCLUSION

      For the reasons stated above, we affirm the judgment of the trial court.

      Affirmed.

BAKER, J., and MAY, J., concur.




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