MEMORANDUM DECISION
                                                                      Jun 15 2015, 10:10 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
Danielle L. Gregory                                       Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Indianapolis, Indiana
                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Jimmy Huesgen,                                           June 15, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1411-CR-538
        v.                                               Appeal from the Marion Superior
                                                         Court; The Honorable Clark Rogers,
                                                         Judge;
State of Indiana,                                        49F25-1301-FD-5992
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-538 | June 15, 2015           Page 1 of 5
[1]   Jimmy Huesgen appeals his conviction of Class A misdemeanor battery, 1

      asserting the court erred when it declined to give a self-defense instruction.


[2]   We affirm.


                                     Facts and Procedural History
[3]   On January 25, 2013, Huesgen and Silverio Guadarrama were working at

      Harlan Bakery. Guadarrama was the team leader for Huesgen’s area. The two

      men argued. Huesgen grabbed Guadarrama around the neck, leaving a red

      mark. Guadarrama left the area and reported the incident to the supervisor.

      Management took Huesgen to Human Resources and called the police.

      Officers interviewed Huesgen. After viewing surveillance video, the State

      charged Huesgen with Class D felony strangulation, 2 Class D felony

      intimidation, 3 and Class A misdemeanor battery.


[4]   After the State presented its case, the parties agreed to final jury instructions.

      During that discussion, Huesgen’s counsel asked for an instruction on Class B

      misdemeanor battery as a lesser included offense. Huesgen then testified and

      asserted he acted in self-defense. After the close of evidence, Huesgen’s counsel

      requested a self-defense instruction, but he did not tender a written copy of the

      instruction or refer to a pattern jury instruction number. The trial court denied




      1
          Ind. Code § 35-42-2-1 (2012).
      2
          Ind. Code § 35-42-2-9 (2006).
      3
          Ind. Code § 35-45-2-1 (2006).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-538 | June 15, 2015   Page 2 of 5
      his request. The jury found Huesgen not guilty of strangulation and

      intimidation, but guilty of Class A misdemeanor battery.


                                     Discussion and Decision
[5]   “The manner of instructing a jury is left to the sound discretion of the trial

      court.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied.

      When we review the trial court’s decision regarding jury instructions, we

      consider “(1) whether the tendered 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 which were given.” Davis v. State, 355 N.E.2d 836, 838 (Ind. 1976)

      (internal citations omitted). “When the claimed error is the failure to give an

      instruction . . . a tendered instruction is necessary to preserve error because,

      without the substance of an instruction upon which to rule, the trial court has

      not been given a reasonable opportunity to consider and implement the

      request.” Scisney v. State, 701 N.E.2d 847, 848 n.3 (Ind. 1998) (emphasis in

      original). See also Ind. Crim. Rule 8(D) (“[r]equested instructions must be

      reduced to writing”). Ind. Trial Rule 51(E) allows a party to request jury

      instructions from the Indiana Pattern Jury Instructions by designating the

      number of such. Coy v. State, 999 N.E.2d 937, 943 (Ind. Ct. App. 2013).


[6]   Huesgen did not tender a written instruction or cite the relevant pattern jury

      instruction. Huesgen argues he “did not request a deviation from the self

      defense instruction in the Indiana Pattern Jury Instructions,” (Appellant’s App.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-538 | June 15, 2015   Page 3 of 5
      at 8), but Huesgen did not request any particular instruction at all. Huesgen has

      waived any error in the jury instructions. See, e.g., Mitchell v. State, 742 N.E.2d

      953, 955 (Ind. 2001) (objection to missing information in instruction waived

      when no alternate instruction tendered). See also, Baker v. State, 948 N.E.2d

      1169, 1178 (Ind. 2011) (issue waived when appellant did not offer an instruction

      of his own).


[7]   Waiver notwithstanding, the evidence did not permit an inference that Huesgen

      acted in self-defense. To support a claim of self-defense, Huesgen must show he

      “(1) was in a place where he 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.” Hobson v. State, 795 N.E.2d 1118, 1121 (Ind. Ct. App.

      2003), trans. denied.


[8]   Huesgen argues he felt threatened when Guadarrama called him over and said

      “mother fucker I went to report you.” (Tr. at 74.) Huesgen testified “the way

      he was talking to me I feel [sic] that I was in danger and so I reacted and I

      pushed him.” (Id. at 75.) The State presented video evidence that Huesgen was

      the instigator of the violence. The trial court did not abuse its discretion in

      determining Huesgen was not entitled to a self-defense jury instruction because

      he instigated the physical violence against Guadarrama. See Henson v. State, 786

      N.E.2d 274 (Ind. 2003) (self-defense instruction declined because “there is

      nothing in the record to sustain Defendant contention that he was reasonable in

      his belief of imminent bodily harm”).



      Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-538 | June 15, 2015   Page 4 of 5
                                                 Conclusion
[9]    The trial court did not abuse its discretion in declining to instruct the jury on

       self-defense. Huesgen waived his argument when he failed to tender a written

       jury instruction or refer to the pattern jury instruction number. Waiver

       notwithstanding, the evidence in the record did not support an instruction on

       self-defense. Accordingly, we affirm.


[10]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-538 | June 15, 2015   Page 5 of 5
