MEMORANDUM DECISION
                                                                  Jun 19 2015, 8:25 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
Cara Schaefer Wieneke                                     Gregory F. Zoeller
Wieneke Law Office, LLC                                   Attorney General of Indiana
Plainfield, Indiana
                                                          Jesse R. Drum
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Roger Hartman,                                           June 19, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         20A03-1411-CR-401
        v.                                               Appeal from the Elkhart Superior
                                                         Court

State of Indiana,                                        The Honorable Evan S. Roberts,
                                                         Judge
Appellee-Plaintiff.
                                                         The Honorable Dean O. Burton,
                                                         Magistrate
                                                         Cause No. 20D01-1210-FD-1206




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-401 | June 19, 2015      Page 1 of 10
[1]   Roger Hartman appeals his convictions for strangulation as a class D felony

      and battery as a class A misdemeanor. Hartman raises one issue, which we

      revise and restate as whether the trial court committed fundamental error in

      limiting his questions to potential jurors. We affirm.


                                      Facts and Procedural History

[2]   Hartman’s wife, Lynn Hartman, began a romantic relationship in July 2010

      with Lauren Ketcham. On September 30, 2012, Lynn moved out of Hartman’s

      residence and into the finished basement area of the residence of Gale Burtch,

      and Ketcham and the two children of Hartman and Lynn helped Lynn unpack

      her things. During the afternoon, Hartman arrived at Burtch’s residence to

      make sure that the home where his children were going to be staying was safe.

      Hartman met Burtch, walked around the area in which Lynn would be living,

      and eventually left the house.


[3]   Later in the evening when it was dark outside, Hartman returned to Burtch’s

      residence and knocked on a sliding glass door to the basement. Lynn let him

      inside, and he yelled for his children “to get their things” and that “they were

      coming with him.” Transcript at 147. Hartman called Lynn a liar and told the

      children that she was a lesbian. Hartman asked the children if they knew what

      that was, they shook their heads no, and he said that he was going to tell them.

      Ketcham tried to get Hartman’s attention to tell him “not to do that.” Id. at

      150. Hartman “just kept yelling the same things over and over.” Id. at 151.

      Hartman then looked at Ketcham and said “[y]ou’re dead.” Id. Hartman

      moved towards Ketcham, grabbed her finger, and bent it back, and Lynn came
      Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-401 | June 19, 2015   Page 2 of 10
      over to attempt to pull him back. Hartman wrestled or threw Ketcham to the

      ground and placed his hands on her neck “very hard” for “probably 30

      seconds,” and Ketcham could not breathe and tried to catch her breath. Id. at

      154. He eventually stepped back five or ten steps and talked to Lynn.


[4]   After a short time, Hartman walked towards Ketcham, they both fell down

      together, he placed his knee on her chest and used his forearm against her neck,

      and Ketcham could not breathe. Hartman eventually released her, and at some

      point Burtch came downstairs and stated this was not going to happen in her

      home. Lynn and Hartman went outside through the sliding glass door.


[5]   Ketcham sent a couple of text messages to Lynn’s counselor, 1 who did not

      respond. A few minutes later, Lynn and Hartman came back inside through

      the sliding glass door, and Lynn said to Ketcham: “I don’t love you, I never

      did. I never want to see you again.” Id. at 159. Ketcham walked away and left

      the residence, drove to the police station and reported what had happened, and

      spoke with Lynn’s counselor on the phone. After the incident, Lynn ended up

      moving back in with Hartman.


[6]   On October 8, 2012, the State charged Hartman with strangulation as a class D

      felony and battery as a class A misdemeanor. On May 14, 2014, Hartman filed

      a trial disclosure identifying his potential witnesses, exhibits, and theories of




      1
        Ketcham testified that at one point Lynn was working with the counselor to make her marriage work and
      then later to work on separation.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-401 | June 19, 2015          Page 3 of 10
      defense, which included self-defense, defense of another, necessity, lesser of

      wrongs, and a general denial. On May 30, 2014, the State filed a motion in

      limine, which stated, with respect to Hartman’s theories of self-defense, defense

      of another, and necessity, that there was no evidence that Hartman, his

      children, or anyone other than Ketcham were in any danger of any harm and

      requested the court to restrict and restrain Hartman from any mention of such

      claims unless he presented some evidence relevant to the claims.


[7]   A jury trial was held on June 3, and 4, 2014. Prior to voir dire, the court heard

      arguments on the State’s motion in limine. Defense counsel stated that “the

      only reference to self defense, defense of another, and necessity that [he] would

      make would be during voir dire, reading parts of pattern jury instructions to the

      potential jurors and asking them . . . general questions about whether they agree

      with those laws and whether they would follow those if those are issues in the

      case” and that “[o]therwise, [he] would not be making any mention of any of

      these things.” Transcript at 10. The court asked if the State was agreeable to

      “simply the reading of a pattern instruction during voir dire,” and the State

      objected and argued that it would confuse the issues “in an attempt to persuade

      the jury more along the lines of a divorce case or custody or some sort of family

      issue that is simply not pertinent to a criminal trial.” Id. at 11. Defense counsel

      responded that his expectation was that, “both through cross examination of

      the State’s witnesses and if [] Hartman testified also through his testimony,”

      that “there will be evidence, significant evidence, that he believed his children

      were in danger in being . . . in the presence or under control of the victim and


      Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-401 | June 19, 2015   Page 4 of 10
      that is why this incident occurred” and “[t]hat’s why these defenses are at issue

      in the case.” Id. at 12. The court responded that, “based on what’s been

      relayed . . . at this point saying ‘in the presence or under the control of the

      victim,’” it was “not inclined at [that] point to allow any discussion relative to

      self defense or necessity.” Id. The court also noted: “However, . . . if the

      evidence reflects that those are issues that are present that need to be raised at

      that point in time, if it’s appropriate to have an instruction based on the

      evidence that’s presented, then we can certainly address that in a final

      instruction.” Id. The court also stated, “based on what’s been presented at this

      point, I’m inclined to grant the Motion in Limine relative to any discussions of

      self defense, lesser or wrongs, or necessity” but was “leaving the door open if

      there’s evidence that’s presented during the trial that makes those theories

      relative then . . . an instruction may be appropriate in the final instruction.” 2 Id.

      at 12-13.


[8]   Hartman’s counsel then argued that the court’s ruling invited error and said

      that, in previous cases involving self-defense, he had “questioned jurors during

      voir dire about the views of Indiana Self Defense Law and it is not uncommon,

      in fact it is common, to have jurors say that they disagree with that law and that

      under no circumstances should someone be excused from using violence” and

      that “[i]f we can’t ask them that during voir dire and we get to that in the trial it




      2
       The court’s chronological case summary entry for June 3, 2014, states that the State’s motion in limine was
      granted.

      Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-401 | June 19, 2015              Page 5 of 10
       could cause some real problems.” Id. at 13. The court confirmed its ruling and

       stated in part that, “based on what’s been available to date and based on my

       understanding of this, it appears that that may cause confusion [and] delay” and

       that “certainly, we can change course on that if need be in a final instruction.”

       Id. at 13-14.


[9]    In its case in chief, the State presented the testimony of Ketcham, Burtch, and

       the police officer who took Ketcham’s statement at the police station. Hartman

       did not testify or call witnesses. In his closing statement, defense counsel

       argued there were inconsistencies in Ketcham’s claims. The jury found

       Hartman guilty as charged. The court imposed an aggregate sentence of two

       years with one year to be served in community corrections and one year

       suspended to probation.


[10]   Hartman filed a motion to correct error stating that defense counsel had

       requested that he be permitted to read from pattern jury instructions and

       question potential jurors concerning the controversial legal concepts of self-

       defense, defense of another, and necessity, but that request was denied. He

       argued that the denial was a violation of his due process rights and amounted to

       fundamental error. He contended that, because of the court’s surprise ruling, he

       was forced to change his planned defense and that the defense strategy was

       based almost entirely on Hartman testifying to his version of events, premised

       on self-defense, defense of another, and necessity, and then calling character

       witnesses to support his character for non-violence and for honesty. Hartman

       further argued that, in defense counsel’s experience, the legal doctrines of self-

       Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-401 | June 19, 2015   Page 6 of 10
       defense, defense of another, and necessity “are controversial among jurors with

       almost half of potential jurors being eliminated (many for cause) because they

       disagree with the law.” Appellant’s Appendix at 31. Following a hearing, the

       court denied the motion to correct error.


                                                   Discussion

[11]   The issue is whether the trial court committed fundamental error in limiting voir

       dire. Hartman concedes that he did not preserve his claim for appeal but

       maintains the trial court committed fundamental error when it did not permit

       him to question potential jurors regarding their general views of self-defense

       and defense of another. Hartman argues he was denied the right to a fair and

       impartial jury provided by Article 1, Section 13 of the Indiana Constitution, and

       that he was not required to prove his claim of self-defense before being allowed

       to question potential jurors. He also contends that self-defense was the primary

       issue for trial until the court’s erroneous ruling forced a change in defense

       strategy and that, while it would have been a better practice to have presented

       his evidence of self-defense at trial or make a full offer of proof, his failure to do

       so does not change the fact that he intended to employ the defense and was

       denied the right to do so.


[12]   The State argues that self-defense was not an issue in this case and that

       Hartman did not present any self-defense evidence at his jury trial or ask for a

       self-defense instruction. The State maintains that Hartman “was not denied a

       fair trial because he could not probe the prospective jurors about an irrelevant

       defense.” Appellee’s Brief at 13.
       Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-401 | June 19, 2015   Page 7 of 10
[13]   To qualify as a fundamental error, an error must be so prejudicial to the rights

       of the defendant as to make a fair trial impossible. Black v. State, 829 N.E.2d

       607, 610 (Ind. Ct. App. 2005) (citations omitted), trans. denied. The

       fundamental error exception to the waiver rule is an extremely narrow one,

       available only when the record reveals clearly blatant violations of basic

       elementary principles of due process, and the harm or potential for harm cannot

       be denied. Id.


[14]   The purpose of voir dire is to determine whether a prospective juror can render a

       fair and impartial verdict in accordance with the law and the evidence. Id.

       (citing Joyner v. State, 736 N.E.2d 232, 237 (Ind. 2000)). The right to an

       impartial jury is guaranteed by Article 1, Section 13 of the Indiana Constitution

       and is an essential element of due process. Id. A trial court has broad

       discretion in controlling the voir dire of prospective jurors. Id.


[15]   A defendant has a valid right to exclude persons who cannot be fair to his

       position when making a claim of self-defense. Id. at 611. In general, the ability

       to question prospective jurors regarding their beliefs and feelings concerning the

       doctrine of self-defense so as to determine whether they have firmly held beliefs

       which would prevent them from applying the law of self-defense to the facts of

       the case is essential to a fair and impartial jury. Id.


[16]   At the time of the offense, Ind. Code § 35-41-3-2 provided in part that a person

       is justified in using reasonable force against another person to protect the person

       or a third person from what the person reasonably believes to be the imminent


       Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-401 | June 19, 2015   Page 8 of 10
       use of unlawful force. However, according to the statute, a person is not

       justified in using force if the person provokes unlawful action by another person

       with intent to cause bodily injury to the other person, or 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. The statute applies to a person using reasonable force to

       protect the person or a third person. The amount of force a person may use

       depends on the urgency of the situation. Harmon v. State, 849 N.E.2d 726, 730-

       731 (Ind. Ct. App. 2006). Additionally, in order to prevail on a claim of

       necessity, a defendant must show the act charged as criminal must have been

       done to prevent a significant evil, there must have been no adequate alternative

       to the commission of the act, the harm caused by the act must not be

       disproportionate to the harm avoided, the accused must entertain a good faith

       belief that his act was necessary to prevent greater harm, such belief must be

       objectively reasonable under all the circumstances, and the accused must not

       have substantially contributed to the creation of the emergency. Belton v. State,

       6 N.E.3d 1043, 1045-1046 (Ind. Ct. App. 2014).


[17]   The evidence presented to the jury did not support claims of self-defense,

       defense of another, or necessity. There was no evidence upon which a

       reasonable trier of fact could have found Hartman validly acted in self-defense,

       defense of another, or necessity. These defenses were not issues in the case.

       Hartman has not demonstrated that the trial court’s ruling impacted whether


       Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-401 | June 19, 2015   Page 9 of 10
       the selected jurors could render a fair and impartial verdict in accordance with

       the evidence. Accordingly, we conclude that any error by the trial court in

       limiting voir dire was not so prejudicial to the rights of Hartman as to make a

       fair trial impossible. Hartman has not established fundamental error and is not

       entitled to a new trial.3


                                                     Conclusion

[18]   For the foregoing reasons, we affirm Hartman’s convictions for strangulation as

       a class D felony and battery as a class A misdemeanor.


[19]   Affirmed.


       Crone, J., and Pyle, J., concur.




       3
         Hartman also argues that Black and Everly v. State, 271 Ind. 687, 395 N.E.2d 254 (1979), require that he be
       granted a new trial. However, in Black the defendant testified he shot the victim in self-defense, Black, 829
       N.E.2d at 609, and in Everly the defendant asserted that a homicide for which he was charged was committed
       in self-defense. Everly, 395 N.E.2d at 254. Hartman did not present evidence to the jury or the trial court
       which, if credited by the trier of fact, could have constituted a valid claim of self-defense.

       Court of Appeals of Indiana | Memorandum Decision 20A03-1411-CR-401 | June 19, 2015            Page 10 of 10
