MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Mar 21 2018, 8:25 am
regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      Court of Appeals
the defense of res judicata, collateral                                 and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel C. Wieneke                                          Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General
Brooklyn, Indiana
                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Robert E. Young,                                        March 21, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        67A04-1707-CR-1578
        v.                                              Appeal from the Putnam Circuit
                                                        Court
State of Indiana,                                       The Honorable Matthew L.
Appellee-Plaintiff                                      Headley, Judge
                                                        Trial Court Cause No.
                                                        67C01-1604-F1-75



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 67A04-1707-CR-1578 | March 21, 2018      Page 1 of 10
                                             Case Summary
[1]   A jury found Robert E. Young guilty of level 3 felony aggravated battery. On

      appeal, he argues that the trial court committed fundamental error in instructing

      the jury on self-defense. We disagree and therefore affirm.


                                 Facts and Procedural History
[2]   The relevant facts most favorable to the jury’s verdict are as follows. Robert

      and his wife Shirley lived in rural Putnam County. The Youngs were friends

      with Jeffrey Perkins for over a decade until approximately 2012, when he

      replaced the roof on the Youngs’ house. Shirley reported some leaks to Perkins,

      who “showed up and […] looked at it” but “never showed back up again.” Tr.

      Vol. 4 at 21. Perkins had left some scaffolding on the Youngs’ property, and

      Robert told him that he could get it back after he fixed the roof.


[3]   Perkins did not fix the roof, and he and the Youngs did not interact again until

      the afternoon of March 25, 2016, when Perkins and Charles Masters went to

      retrieve the scaffolding. Perkins drove his flatbed truck up the Youngs’

      driveway and parked it by the scaffolding, which was next to a barn. Perkins

      and Masters began to dismantle the scaffolding. Robert came out of the barn

      carrying a rifle, accused them of stealing, and told them to leave. Perkins

      sarcastically replied that Robert “was just going to have to shoot him.” Tr. Vol.

      3 at 2. Robert said that the scaffolding boards belonged to him, so Perkins

      stacked them beside the barn and loaded the metal scaffolding frames onto the



      Court of Appeals of Indiana | Memorandum Decision 67A04-1707-CR-1578 | March 21, 2018   Page 2 of 10
      flatbed. Robert went into the house and told Shirley to call the state police. He

      put a pistol in his pocket and returned to the barn to paint a vehicle that he was

      restoring. Shirley called the police and told Perkins and Masters to leave

      because they were trespassing. Robert told Shirley to block the driveway.

      Shirley drove her vehicle to the end of the driveway and called the police again.


[4]   Robert saw that Perkins and Masters had finished loading the scaffolding

      frames onto the flatbed, so he parked his dump truck behind the flatbed in an

      attempt to block it in. Perkins put the flatbed in reverse and slowly maneuvered

      at “a brake controlled speed” between Robert’s truck and the barn. Id. at 5.

      Masters, who was in the flatbed’s passenger seat, looked out the rear window

      over his left shoulder and saw Robert coming out of the barn with a cinder

      block in his left hand and a pistol in his right hand. Masters saw Robert set the

      cinder block on the ground approximately fifteen feet behind the flatbed and

      bring the pistol up “as if he was pointing it.” Id. at 6. Masters ducked down

      and heard a gunshot. The bullet from Robert’s pistol shattered the flatbed’s rear

      window and punctured Perkins’s forehead. Perkins went limp. Masters put the

      flatbed in neutral, and it rolled to a stop against a woodpile.


[5]   Indiana State Police Trooper James Crisp arrived shortly after the shooting. He

      drove past Shirley at the end of the driveway and encountered Robert near the

      barn. Robert had the pistol in his hand and said that he had “just […] shot a

      man.”      Tr. Vol. 2 at 139. Trooper Crisp asked Robert to drop the pistol and

      told Trooper Yan Dravigne to watch him. Trooper Crisp administered first aid



      Court of Appeals of Indiana | Memorandum Decision 67A04-1707-CR-1578 | March 21, 2018   Page 3 of 10
      to Perkins and called for an ambulance. Perkins survived but was severely

      debilitated as a result of the shooting.


[6]   Trooper Dravigne talked with Robert at the scene; their conversation was

      recorded on the trooper’s in-car video camera. Robert said that he shot Perkins

      “in the head[,]” that he “tried to kill the stupid son of a b***h[,]” and that he

      “was defending [his] property and [his] life.” Tr. Vol. 3 at 31. Robert claimed

      that he sat down on the cinder block while Perkins was backing up and “told

      [Perkins] hold on or I’m gonna shoot and [Perkins] speeded up” and “tried to

      back over [Robert] with his truck.” Id. at 36. Robert said that he shot Perkins

      “just once” with the pistol and that he “probably should have emptied it but

      [he] still had enough sense not to know to do that.” Id.


[7]   Several hours later, Indiana State Police Sergeant Jason Fajt recorded an

      interview with Robert at the state police post. Robert claimed that Perkins

      “was trying to steal [his] property” and “run over [him] with a truck.” Tr. Vol.

      2 at 154. Robert said that he “would have shot up in the air just to scare

      [Perkins] so he would stop[,]” but the truck “kind of jarred [him] a little bit”

      and “[t]hat’s when the gun went off.” Id. at 167, 173. Sergeant Fajt asked

      Robert, “So you were willing to let [Perkins] hit you with his truck?” Id. at 201.

      Robert replied, “Correct. I want him in jail. I want him […] to be in trouble

      legally.” Id. at 201-02. Sergeant Fajt also asked, “[D]id you have anywhere to

      avoid getting hit by the truck?” Id. at 202. Robert replied, “Oh might of if I’d

      took my hand [out of] my pocket and not had the pistol in it and bailed. Yeah, I

      probably could have got out of the way. Yeah.” Id.

      Court of Appeals of Indiana | Memorandum Decision 67A04-1707-CR-1578 | March 21, 2018   Page 4 of 10
[8]   The State charged Robert with level 2 felony attempted voluntary

      manslaughter, level 3 felony aggravated battery, and three other charges that

      were later dismissed. Neither Robert nor Perkins testified at Robert’s jury trial.

      The jury found Robert guilty of the aggravated battery charge but was unable to

      reach a verdict on the attempted manslaughter charge. The trial court declared

      a mistrial on the latter and sentenced Robert to eight years on the former, with

      one year suspended to probation. Robert now appeals. Additional facts will be

      provided below.


                                     Discussion and Decision
[9]   In his opening statement, defense counsel argued that Perkins was “the

      aggressor” and that Robert shot Perkins in defense of his person and property.

      Id. at 138. “Self-defense is recognized by the Indiana Code as a legal

      justification for the commission of an otherwise illegal act.” Carson v. State, 686

      N.E.2d 864, 867 (Ind. Ct. App. 1997), trans. denied (1998). Indiana Code

      Section 35-41-3-2 governs the use of force to protect person or property and

      reads in relevant part as follows:


              (c) 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

      Court of Appeals of Indiana | Memorandum Decision 67A04-1707-CR-1578 | March 21, 2018   Page 5 of 10
                  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.


       (Emphasis added.)


[10]   When a person raises a self-defense claim based on the use of deadly force, he is

       required to show that he was in a place where he had a right to be, acted

       without fault, and had a reasonable fear of death or serious bodily harm. Dixson

       v. State, 22 N.E.3d 836, 839 (Ind. Ct. App. 2014), trans. denied (2015). “Once a

       person claims self-defense, the State bears the burden of disproving at least one

       of these elements beyond a reasonable doubt.” McCullough v. State, 985 N.E.2d

       1135, 1138 (Ind. Ct. App. 2013), trans. denied. “The State may meet this burden

       by rebutting the defense directly, by affirmatively showing the person did not

       act in self-defense, or by relying upon the sufficiency of its evidence in chief.”

       Id.


[11]   During the final jury instructions conference, defense counsel argued that

       Robert was justified in using deadly force to prevent the commission of a

       forcible felony.1 The record suggests that the trial court was willing to give an

       instruction to this effect, but this is the instruction that the court ultimately read

       to the jury:




       1
           Defense counsel tendered a preliminary instruction on self-defense, but it was not read to the jury.


       Court of Appeals of Indiana | Memorandum Decision 67A04-1707-CR-1578 | March 21, 2018               Page 6 of 10
         It is an issue whether the Defendant acted in self-defense.

         A person may use reasonable force against another person to
         protect himself from what he reasonable [sic] believes to be the
         imminent use of unlawful force.

         A person is justified in using deadly force, and does not have a
         duty to retreat, only if he reasonable [sic] believes that deadly
         force is necessary to prevent serious bodily injury to himself.

         However, a person may not use force if:

         1. he is committing a crime that is directly and immediately
         connected to the confrontation; or

         2. he provokes a fight with another person with intent to cause
         bodily injury to that person; or

         3. he has willingly entered into a fight with another person or
         started the fight, unless he withdraws from the fight and
         communicates to the other person his intent to withdraw and the
         other person nevertheless continues or threatens to continue the
         fight.

         The State has the burden of proving beyond a reasonable doubt
         that the Defendant did not act in self-defense.


Appellant’s Supp. App. Vol. 2 at 15. Defense counsel did not object to the

omission of the forcible felony language.2




2
 The omission appears to have been unintentional, as the court gave an instruction defining forcible felony.
See Appellants’ Supp. App. Vol. 2 at 24 (“‘Forcible felony’ means a felony that involves the use or threat or
force against a human being, or in which there is imminent danger of bodily injury to a human being.”)


Court of Appeals of Indiana | Memorandum Decision 67A04-1707-CR-1578 | March 21, 2018            Page 7 of 10
[12]   On appeal, Robert argues that the trial court erred in omitting the forcible

       felony language from the jury instruction. He acknowledges that he failed to

       properly preserve the issue at trial and therefore must establish fundamental

       error. See Evans v. State, 81 N.E.3d 634, 637 (Ind. Ct. App. 2017) (“A defendant

       who fails to object to a jury instruction at trial waives any challenge to that

       instruction on appeal, unless giving the instruction was fundamental error.”).


               Fundamental error is error that represents a blatant violation of
               basic principles rendering the trial unfair to the defendant,
               thereby depriving the defendant of fundamental due process.
               The error must be so prejudicial to the rights of the defendant as
               to make a fair trial impossible. In determining whether a claimed
               error denies the defendant a fair trial, we consider whether the
               resulting harm or potential for harm is substantial. The element
               of harm is not shown by the fact that a defendant was ultimately
               convicted. Rather, it depends upon whether the defendant’s right
               to a fair trial was detrimentally affected by the denial of
               procedural opportunities for the ascertainment of truth to which
               he would have been entitled.


       Id. (citations omitted). We will not reverse for an instructional error where the

       conviction is clearly sustained by the evidence and the jury could not properly

       have found otherwise. Hayden v. State, 19 N.E.3d 831, 838 (Ind. Ct. App.

       2014), trans. denied (2015).


[13]   During closing argument, defense counsel told the jury,




       Court of Appeals of Indiana | Memorandum Decision 67A04-1707-CR-1578 | March 21, 2018   Page 8 of 10
                Ladies and gentlemen the Judge is going to instruct you […] that
                there is a crime in Indiana of battery with a deadly weapon.[3]
                Now again earlier we didn’t hear much about the wrong doing of
                Jeffrey Perkins. But my client is entitled to stop a forcible felony
                on his property. Battery with a truck is battery with a deadly
                weapon. It doesn’t have to hit you hard. It doesn’t have to, it
                can just touch you. I mean battery is a rude, insolent or angry
                touch. So when guys are in a bar doing this, it’s battery. [S]o
                even if it just hit him a little bit, it’s a battery with a deadly
                weapon. That’s a felony in this State.


       Tr. Vol. 4 at 122.


[14]   Indiana Code Section 35-41-3-2(c) provides that a person is justified in using

       deadly force and does not have a duty to retreat if the person reasonably

       believes that deadly force is necessary to prevent the commission of a forcible

       felony; the statute does not say that a person is justified in using deadly force if

       he deliberately walks into the path of a moving truck with the intention of

       getting hit, as Robert undisputedly did here. As the prosecutor told the jury,


                [Y]ou can’t be at fault. You can’t cause to get in the way of
                something and then have a chance to get out and argue self-
                defense. It doesn’t work that way. You will see in the
                instructions. [Robert] could have got out of the way. He didn’t
                want to. He wanted to get hit.



       3
         In fact, the trial court did not give an instruction defining battery with a deadly weapon but did give an
       instruction defining deadly weapon in pertinent part as “[a] destructive device, weapon, device, taser or
       electronic stun weapon equipment chemical substance, or other material that in the manner it; (a) is used (b)
       could ordinarily be used; or (c) is intended to be used; is readily capable of causing serious bodily injury.”
       Appellant’s Supp. App. Vol. 2 at 22. The court also instructed the jury that “[a]n automobile may be
       considered a ‘deadly weapon’ given appropriate circumstances.” Id. at 23. The court did not give an
       instruction defining serious bodily injury.

       Court of Appeals of Indiana | Memorandum Decision 67A04-1707-CR-1578 | March 21, 2018            Page 9 of 10
       Tr. Vol. 4 at 99. The jury was instructed that when a defendant claims that he

       acted in self-defense, the State must disprove beyond a reasonable doubt that he

       acted without fault. Appellant’s Supp. App. Vol. 2 at 17.4 We conclude that

       the State met that burden here. Because the jury could not properly have found

       that Robert was justified in using deadly force against Perkins to prevent a

       forcible felony, we find no fundamental error and therefore affirm his

       conviction.


[15]   Affirmed.


       Robb, J., and Bradford, J., concur.




       4
        Cf. Davis v. State, 74 N.E.3d 1215, 1220-21 (Ind. Ct. App. 2017) (to establish necessity defense, defendant
       must show that he “did not substantially contribute to the creation of the emergency.”).

       Court of Appeals of Indiana | Memorandum Decision 67A04-1707-CR-1578 | March 21, 2018             Page 10 of 10
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