MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            Jan 29 2016, 5:48 am
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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Joel M. Schumm                                           Gregory F. Zoeller
E.J. Last, Certified Legal Intern                        Attorney General of Indiana
Appellate Clinic
Indiana University Robert H. McKinney                    Eric P. Babbs
School of Law                                            Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Donald Wilson,                                           January 29, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1504-CR-149
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton A.
Appellee-Plaintiff.                                      Graham, Judge
                                                         The Honorable Steven J. Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G07-1408-CM-40244



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-149 | January 29, 2016        Page 1 of 6
[1]   Donald Wilson was convicted after a jury trial of two counts of Class A

      misdemeanor battery. 1 As the jury instruction Wilson challenges was not an

      abuse of discretion, we affirm.


                                   Facts and Procedural History
[2]   Wilson was involved in an altercation with another concertgoer outside a show

      in Indianapolis. Security guards responded. Cory Berg took hold of Wilson’s

      arm and wrist and took him toward the lobby. Wilson pivoted toward Berg and

      placed him in a chokehold. Wilson and Berg then went to the ground and Berg

      hit Wilson. Another guard, Stephen Garrison, applied force to a pressure point

      behind Wilson’s ear, and then Berg was able to escape the chokehold.


[3]   Berg and Garrison held Wilson on the ground, then placed him in a chair in the

      lobby. After Garrison and another guard, Logan Cooper, questioned Wilson,

      Wilson became agitated and jumped from the chair. He shoved Garrison and

      tried to flee. Garrison and Cooper restrained Wilson. Wilson kicked Garrison

      in the crotch, causing him pain. An Indianapolis police officer arrived and

      handcuffed Wilson.


[4]   The State charged Wilson with two counts of battery, one alleging Berg was the

      victim and the other alleging Garrison was the victim. At his trial Wilson

      claimed self-defense and the trial court, over Wilson’s objection, gave the jury




      1
          Ind. Code § 35-42-2-1.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-149 | January 29, 2016   Page 2 of 6
      an instruction the State tendered regarding circumstances in which a person

      may not claim he used force in self-defense.


[5]   The jury was instructed that:

              A person may use reasonable force against another person to
              protect himself from what the defendant reasonably believed to
              be the imminent use of unlawful force.


              However, a person may not use force if:


                 He is committing a crime that is directly and immediately
              connected to the battery.


                He is escaping after the commission of a crime that is directly
              and immediately connected to the battery.


      (App. at 73.) The jury found Wilson guilty as charged.


                                     Discussion and Decision
[6]   The manner of instructing a jury is left to the sound discretion of the trial court.

      Henderson v. State, 795 N.E.2d 473, 477-78 (Ind. Ct. App. 2003), reh’g denied,

      trans. denied. The trial court’s ruling will not be reversed unless the instructional

      error is such that the charge to the jury misstates the law or otherwise misleads

      the jury. Id. Jury instructions must be considered as a whole and in reference

      to each other. Id. In determining whether a defendant suffered a due process

      violation based on an incorrect jury instruction, we consider other relevant

      information given to the jury, including closing argument. Id.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-149 | January 29, 2016   Page 3 of 6
[7]   Wilson argues the trial court’s jury instruction was not “legally correct,”

      (Appellant’s Br. at 3), relying in part on Henderson. In Henderson, we

      determined an instruction similar to the one Wilson challenges was an

      incomplete statement of the law. Id. at 479. The Henderson instruction was:


              The defense of self-defense is defined by law as follows:


              A. A person is justified in using reasonable force against another
              person to protect himself or a third person from what he
              reasonably believes to be the imminent use of unlawful force.
              However, a person is justified in using deadly force only if he
              reasonably believes that force is necessary to prevent serious
              bodily injury to himself 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 himself or his
              family by reasonable means necessary. A person is not justified
              in using force if:


              1. He is committing, or is escaping after the commission of, a
              crime.


      Id. at 477-78.


[8]   The instruction as given was an incomplete statement of the law because it did

      not explain to the jury that there must be a causal connection between the crime

      and the confrontation in order to preclude a finding of self-defense. Id. at 479-

      80. Ind. Code § 35-41-3-2 provides “a person is not justified in using force if . . .

      the person is committing or is escaping after the commission of a crime.” We

      noted in Harvey v. State, 652 N.E.2d 876, 877 (Ind. Ct. App. 1995), reh’g denied,

      trans. denied, that if the statutory self-defense limitation were to be taken

      Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-149 | January 29, 2016   Page 4 of 6
       literally, then no person could claim self-defense if that person, at the time he

       acted, was coincidentally committing some criminal offense: “For example,

       possession of a marijuana cigarette or the failure to have filed one’s income tax

       returns could deny one the defense no matter how egregious, or unrelated, the

       circumstances that prompted the action.” Id. We determined the legislative

       intent was to preclude the defense where it is sought by one who was actively

       engaged in the perpetration of a crime, and that criminal activity produced the

       confrontation wherein the force was employed. Id.


[9]    Henderson is distinguishable, as the instruction to Wilson’s jury explicitly

       informed the jury a causal connection between the crime and the confrontation

       was necessary in order to preclude a finding of self-defense. Wilsons’s jury was

       instructed that a person may use reasonable force to defend himself unless he is

       “committing a crime that is directly and immediately connected to the battery,” or is

       “escaping after the commission of a crime that is directly and immediately

       connected to the battery.” (App. at 73) (emphasis added). As Wilson’s jury was

       told there must be a causal connection, we cannot find the instruction was an

       abuse of discretion on that ground.


[10]   Wilson also argues the instruction was error because there was no evidence in

       the record he was committing another crime or escaping after the commission

       of a crime. There was evidence of both. Wilson committed battery when he

       placed Berg in a chokehold, then he committed a second battery when he tried

       to flee the lobby and kicked Garrison. The batteries were charged separately

       and the jury could properly infer Wilson shoved and kicked Garrison when he

       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-149 | January 29, 2016   Page 5 of 6
       was trying to escape after attacking Berg. The defense of self-defense is

       unavailable if there is evidence that “but for the defendant committing a crime,

       the confrontation resulting in injury to the victim would not have occurred.”

       Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). There was evidence that but

       for the battery of Berg, the confrontation resulting in injury to Garrison would

       not have occurred. The instruction was not error.


                                                 Conclusion
[11]   As the instruction Wilson challenges was neither inaccurate nor incomplete,

       and there was evidence to permit giving it, we affirm Wilson’s convictions.


[12]   Affirmed.


       Najam, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-149 | January 29, 2016   Page 6 of 6
