MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              Nov 28 2016, 8:59 am

regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
court except for the purpose of establishing                           Court of Appeals
                                                                         and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Brandon E. Murphy                                       Gregory F. Zoeller
Public Defender’s Office                                Attorney General of Indiana
Muncie, Indiana
                                                        George P. Sherman
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Juan Hernandez,                                         November 28, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A02-1604-CR-816
        v.                                              Appeal from the Delaware Circuit
                                                        Court
State of Indiana,                                       The Honorable Thomas A.
Appellee-Plaintiff.                                     Cannon, Jr., Judge
                                                        Trial Court Cause No.
                                                        18C05-1501-MR-1



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016      Page 1 of 6
                                       Statement of the Case
[1]   Juan Hernandez appeals his convictions for voluntary manslaughter, a Level 2

      felony, and battery, as a Level 5 felony, following a jury trial. Hernandez raises

      two issues for our review, which we consolidate and restate as whether the trial

      court abused its discretion when it denied Hernandez the opportunity to present

      certain evidence in support of his claim of self-defense. We affirm.


                                 Facts and Procedural History
[2]   In 2013-14, Hernandez and Teresa Hittson were involved in a sexual

      relationship. At the time, Teresa was married to Mark Hittson, although she

      had filed for dissolution of their marriage. In early 2014, however, Teresa

      withdrew her dissolution petition and, instead, later called off her relationship

      with Juan. But Juan continued to interact with Teresa and Mark. Mark and

      Juan did not get along.


[3]   On January 13, 2015, the three were in a vehicle together when Juan and Mark

      got into an altercation. Juan and Mark exited the vehicle, and the two began to

      fight. After Mark had punched him, Juan punched Mark and Mark appeared

      to momentarily lose consciousness before sliding down the side of the vehicle

      and onto the ground. At some point during the altercation, while Juan and

      Mark were in close proximity to each other, Juan removed a large serrated knife

      that was on his person and stabbed Mark in the back eleven times. The wounds

      almost immediately killed Mark. Juan then went back to the car for a moment,

      but he returned to Mark’s body, which was motionless on the ground, straddled


      Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016   Page 2 of 6
      him, and stabbed him another twelve times in the chest. Teresa watched those

      events occur, as did an unrelated witness, Robert Brancecum.


[4]   The State charged Juan with murder, a felony; voluntary manslaughter, a Level

      2 felony; and battery, as a Level 5 felony. At his ensuing jury trial, on the third

      day, Hernandez sought to call a previously undisclosed witness, Matthew

      Waller. The trial court excluded Waller from testifying. Had he been called,

      Waller would have testified that he knew that Mark owned a gun and that

      Mark had said he would use that gun on Juan if he had to. Hernandez also

      sought to introduce evidence that, in 2004, Mark had shot a gun in the presence

      of law enforcement officers who had responded to a report of domestic violence

      between him and Teresa. The trial court also excluded that evidence.


[5]   However, the trial court permitted the following evidence to be admitted:

      evidence that Mark and Teresa had a violent relationship, with Mark as the

      initial aggressor; evidence that Teresa had told Juan of some of those incidents

      prior to the January 13, 2015, altercation; evidence that Mark often carried a

      firearm on his person; evidence that Mark was generally known to be a violent

      person; and evidence that, in the car on January 13, 2015, immediately before

      the altercation between Juan and Mark, Teresa had told Juan that Mark had a

      gun on him. Thereafter, the jury acquitted Hernandez of murder but found him

      guilty of voluntary manslaughter and battery. The trial court entered its

      judgment of conviction and sentence accordingly. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016   Page 3 of 6
                                       Discussion and Decision
[6]   Hernandez contends that the trial court abused its discretion when it prohibited

      him from calling Waller and from presenting evidence that Mark shot a firearm

      in the presence of police officers in 2004. A trial court has broad discretion in

      ruling on the admission of evidence, and we review those rulings only for an

      abuse of discretion. See, e.g., Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007).

      But even if a trial court errs in the exclusion of evidence, “an improper

      evidentiary ruling does not constitute reversible error if the probable impact on

      the jury does not impact the substantial rights of defendant.”1 Cook v. State, 675

      N.E.2d 687, 691 (Ind. 1996).


[7]   Hernandez asserts that the trial court’s exclusion of Waller’s testimony and the

      2004 incident adversely impacted his defense to the jury that he had acted in

      self-defense when he stabbed Mark.2 A valid claim of self-defense is a legal

      justification for an otherwise criminal act. Hollowell v. State, 707 N.E.2d 1014,

      1021 (Ind. Ct. App. 1999). However, the amount of force used to protect

      oneself must be proportionate to the urgency of the situation. Id. “‘Where a

      person has used more force than necessary to repel an attack the right to self-




      1
        We reject Hernandez’s assertion that any error by the trial court must be reviewed as harmless beyond a
      reasonable doubt under Chapman v. California, 386 U.S. 18 (1967). To be sure, however, applying that
      standard would not change our conclusion.
      2
        Hernandez also appears to suggest that the trial court erred in excluding evidence that Mark and Teresa
      had a violent relationship and that Mark had threatened acts of violence against Juan. See Appellant’s Br. at
      15-16. But Hernandez acknowledges that the trial court permitted evidence that supported both of those
      concerns. Insofar as Hernandez complains that the trial court erred when it did not admit cumulative
      evidence, we will not consider that argument. See, e.g., Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).

      Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016             Page 4 of 6
      defense is extinguished, and the ultimate result is that the victim then becomes

      the perpetrator.’” Id. (quoting Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct.

      App. 1995), trans. denied). Indeed, “‘[w]hen danger of death or great bodily

      harm ceases, the right of self-defense ceases with it.’” Fuentes v. State, 952

      N.E.2d 275, 279 (Ind. Ct. App. 2011) (quoting Schlegel v. State, 238 Ind. 374,

      383, 150 N.E.2d 563, 567 (1958)), trans. denied. Thus, evidence that

      demonstrates the use of violent force beyond that necessary to repel an initial

      aggressor will “undercut a claim of self-defense.” Id. at 279-80 (discussing

      Mayes v. State, 744 N.E.2d 390, 395-96 (Ind. 2002)).


[8]   For example, in Fuentes we held any error in the trial court’s jury instructions on

      self-defense was harmless because the evidence demonstrated that the defendant

      shot the victim after the victim had appeared to surrender during an altercation

      with the defendant. Id. at 280. As we stated, “any threat [the victim] had posed

      to [the defendant] had been neutralized, and [the defendant’s] right to self-

      defense therefore ceased.” Id. Accordingly, we concluded that “the jury could

      not have properly found that [the defendant had] acted in self-defense . . . .” Id.


[9]   Similarly here, in light of the substantial evidence before it, the jury could not

      have properly found that Hernandez acted in self-defense even if the trial court

      had admitted Hernandez’s proffered evidence. In particular, the evidence

      before the jury demonstrated that Hernandez had stabbed Mark twenty-three

      times in the course of a fist-fight. Hernandez first stabbed Mark eleven times in

      the back. Hernandez then stepped away from Mark momentarily before

      straddling Mark’s motionless body while it laid on the ground and stabbing him

      Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016   Page 5 of 6
       another twelve times in the chest. As the State notes, Hernandez’s actions went

       beyond the proportional repelling of an aggressor and “ensur[ed] that Mark

       would have no chance of survival.” Appellee’s Br. at 23. Accordingly, no

       reasonable jury could have concluded that Hernandez acted in self-defense,

       even if the trial court had admitted the proffered evidence. Thus, any error in

       the trial court’s decision to exclude that evidence is harmless. We affirm

       Hernandez’s convictions.


[10]   Affirmed.


       Bailey, J., and May, J., concur.




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