Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                        May 22 2014, 10:31 am
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:

THOMAS W. VANES                                    GREGORY F. ZOELLER
Office of the Public Defender                      Attorney General of Indiana
Crown Point, Indiana
                                                   JUSTIN F. ROEBEL
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SYLVESTER SMITH,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 45A03-1310-CR-402
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                        The Honorable Thomas P. Stefaniak, Jr., Judge
                               Cause No. 45G04-1009-FB-89



                                          May 22, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                     CASE SUMMARY

       On September 16, 2010, during an alleged verbal confrontation, Appellant-Defendant

Sylvester Smith threw liquid drain cleaner in Don Scott’s face and struck Scott with a

machete. Two days later, on September 18, 2010, Appellee-Plaintiff the State of Indiana (the

“State”) charged Smith with one count of Class B felony attempted aggravated battery and

two counts of Class C felony battery. On March 4, 2013, the trial court conducted a jury trial

on the matter. Smith did not dispute during trial that he threw liquid drain cleaner in Scott’s

face or that he struck Scott with a machete, but claimed that he did so in self-defense. The

State, for its part, presented eyewitness testimony which rebutted Smith’s claim of self-

defense. Following trial, the jury found Smith guilty of three counts of the lesser-included

charge of Class D felony criminal recklessness. On the State’s motion, the trial court merged

the three counts into a single criminal conviction. The trial court then sentenced Smith to a

one-year term of imprisonment in the Department of Correction (“DOC”).

       Smith challenges his conviction on appeal by arguing that the trial court erroneously

instructed the jury on his claim of self-defense. We affirm, concluding that any potential

error in instructing the jury was harmless in light of the eyewitness testimony that sufficiently

rebutted Smith’s claim of self-defense and established Smith’s guilt.

                        FACTS AND PROCEDURAL HISTORY

       According to the facts most favorable to the jury’s verdict, at approximately 3:00 p.m.

on September 16, 2010, Scott went to Smith’s residence to speak to Smith about an on-going

dispute between their daughters.       Around this time, Scott’s wife, Diane Gray-Scott,

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separately approached Smith’s residence and observed Smith and Scott speaking to each

other in Smith’s driveway. Also around this time, Gary Police Officer Jeffery Tatum was

passing Smith’s residence in his police vehicle and noticed Smith and Scott standing in the

driveway, approximately ten or fifteen feet away from Smith’s garage, engaged in “what

appear[ed] to be a verbal altercation.” Tr. p. 130.

       Gray-Scott and Officer Tatum observed Smith throw liquid from a jar in Scott’s face

as Scott “turned to walk away.” Tr. p. 130. Gray-Scott and Officer Tatum also observed

Smith strike Scott on the arm with a machete. After observing the attack on Scott, Officer

Tatum approached Scott and Smith, drew his weapon, and ordered Smith to drop the

machete. Smith did not initially comply with Officer Tatum’s request, but instead took a few

steps toward Officer Tatum. However, Smith eventually complied with Officer Tatum’s

repeated requests after Officer Tatum threatened to shoot if Smith did not drop the machete.

       The liquid that Smith threw in Scott’s face was subsequently determined to be “an

extremely caustic solution containing sodium hydroxide,” which is commonly found in liquid

drain cleaner. As a result of the attack, Scott suffered chemical burns, patches of hair loss,

and two cuts on his upper arm. Scott testified that the liquid caused a burning sensation and

that he “could feel skin from [his] jaw, [his] gum, [his] tongue [ ] burning.” Tr. p. 35. Scott

further testified that he was “spitting up what he could see [were] little pieces of skin and

blood.” Tr. p. 35.

       On September 18, 2010, the State charged Smith with one count of Class B felony

attempted aggravated battery and two counts of Class C felony battery. Smith did not dispute

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during trial that he threw liquid drain cleaner in Scott’s face or that he struck Scott with a

machete, but claimed that he did so in self-defense. The State, for its part, presented

eyewitness testimony which rebutted Smith’s claim of self-defense.

       Following trial, the jury found Smith guilty of three counts of Class D felony criminal

recklessness, which is a lesser-included offense of each of the charged offenses. On the

State’s motion, the trial court merged the three convictions into a single conviction for

criminal recklessness and sentenced Smith to one year in the DOC. This belated appeal

follows.

                              DISCUSSION AND DECISION

       Smith contends that the trial court abused its discretion in instructing the jury. For its

part, the State argues that the trial court did not abuse its discretion in instructing the jury.

The State also argues that even if the trial court did abuse its discretion in instructing the jury,

any potential error was harmless in light of the eyewitness testimony rebutting Smith’s claim

of self-defense and establishing Smith’s guilt.

               “The purpose of a jury instruction ‘is to inform the jury of the law
       applicable to the facts without misleading the jury and to enable it to
       comprehend the case clearly and arrive at a just, fair, and correct verdict.’”
       Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (quoting Chandler v. State,
       581 N.E.2d 1233, 1236 (Ind. 1991)). Instruction of the jury is left to the sound
       judgment of the trial court and will not be disturbed absent an abuse of
       discretion. Schmidt v. State, 816 N.E.2d 925, 930 (Ind. Ct. App. 2004), trans.
       denied. Jury instructions are not to be considered in isolation, but as a whole
       and in reference to each other. Id. The instructions must be a complete,
       accurate statement of the law which will not confuse or mislead the jury. Id. at
       930-31. Still, errors in the giving or refusing of instructions are harmless
       where a conviction is clearly sustained by the evidence and the jury could not
       properly have found otherwise. Id. at 933 (citing Dill, 741 N.E.2d at 1233).

                                                 4
Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008).

      With regard to Smith’s claim of self-defense, the trial court instructed the jury as

follows:

                                  INSTRUCTION NO. 20
              It is well settled that a defendant need only raise the issue of self-
      defense so that a reasonable doubt exists. The State then carries the burden of
      negating the presence of one or more of the necessary elements of self-defense.
              1. That the defendant acted without fault;
              2. Was in a place where he had a right to be in relation to his alleged
      assailant; or
              3. Acted in reasonable fear or apprehension of death or great bodily
      harm.
              The questions concerning the existence of the imminent use of unlawful
      force, the necessity or apparent necessity of using force, as well as the amount
      of force necessary to repel an attack, can be determined only from the
      standpoint of the defendant at the time and under all existing circumstances.
      In the exercise of self-defense, the defendant ordinarily is required to act
      immediately, without time to deliberate and investigate.                In such
      circumstances, the danger which exists only in appearance is to him as real and
      imminent as if it were actual. The important inquiry is: Was the danger actual
      to the defendant’s comprehension? It is not whether an injury was actually
      intended by the assailant, but whether it presented a danger from the
      defendant’s point of view under the circumstances.

Tr. pp. 333-34; Appellant’s App. p. 108.

                                  INSTRUCTION NO. 23
              It is an issue whether the defendant acted in defense of his dwelling.
              A person may use reasonable force, including deadly force, against
      another person, and does not have a duty to retreat, if he reasonably believes
      that the force is necessary to prevent or terminate the person’s unlawful entry
      of or attack on his dwelling.
              The State has the burden of proving beyond a reasonable doubt that the
      defendant did not act in defense of his dwelling.

Tr. p. 336; Appellant’s App. p. 111.

                                 INSTRUCTION NO. 24
      Threats alone are not sufficient to justify the use of deadly force under a claim
                                               5
        of self-defense.[1]

Tr. p. 336; Appellant’s App. p. 112.

        Smith does not challenge Instructions Twenty or Twenty-three on appeal. Smith only

challenges Instruction Twenty-four, claiming that the instruction was incomplete and

misleading as it did not differentiate between physical or verbal threats. However, we need

not determine whether the challenged instruction was incomplete or misleading, as any

potential error was, at most, harmless in light of the eyewitness testimony which rebuts

Smith’s claim of self-defense and establishes Smith’s guilt.

        Again, Smith did not dispute that he threw liquid drain cleaner in Scott’s face or that

he struck Scott with a machete at trial, but claimed that he did so in self-defense. In claiming

that he acted in self-defense, Smith asserted that his encounter with Scott occurred inside of

Smith’s garage and that he believed the attack was necessary to get out of the garage and to

prevent his own death. Smith asserted that he was working on a sink in his garage when he

was startled by a male voice saying, “I want to talk to you, because I’m tired of … having to

talk to you about disrespecting my wife and my children.” Tr. p. 220. Smith further asserted

that when he turned toward the voice, he saw Scott standing inside of his garage. Smith

stated that Scott then came further into his garage, “stepped” to him, and “shoved his finger

into [Smith’s] chest.” Tr. p. 224. Smith noted that Scott was younger and larger than himself



        1
           We note that the verbal instruction given to by the trial court correctly states “Threats alone” while
the written copy of the trial court’s instruction includes a typographical error and reads “Threats along.” We
further note that the transcript of the verbal instruction also includes the hyphen between the words “self” and
“defense” while the written copy of the trial court’s instruction does not.

                                                       6
and indicated that he believed that Scott “could have killed [him] and wouldn’t nobody know

it because could [sic] nobody see in [his] garage.” Tr. p. 224. Smith asserted that Scott

threatened to kill him and that he believed that he would be dead if he did not get past Scott

and “out of [the] garage.” Tr. p. 228. Smith reiterated his claim that the entire encounter

occurred inside of his garage, stating that Scott was still in the doorway of the garage when

he was hit with the machete. However, contrary to Smith’s claims, the State presented

eyewitness testimony which rebutted Smith’s assertion that the encounter between Scott and

Smith occurred inside Smith’s garage.

       During trial, the State offered the eyewitness testimony of Gray-Scott and Officer

Tatum. Both Gray-Scott and Officer Tatum testified that the encounter between Scott and

Smith occurred in the driveway outside of Smith’s garage. Officer Tatum specified that the

encounter occurred approximately ten or fifteen feet away from Smith’s garage. Officer

Tatum also testified that he observed that Scott began to turn away from Smith before Smith

threw the liquid in Scott’s face and struck Scott with the machete.

       Both Gray-Scott’s and Officer Tatum’s testimony is sufficient rebut Smith’s claims

that the encounter between he and Scott occurred in Smith’s garage and, accordingly, that he

acted in self-defense in an attempt to get past Scott and out of the garage. The jury, acting as

the trier of fact, was free to believe or disbelieve these accounts of the encounter between

Scott and Smith as it saw fit. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004);

McClendon v. State, 671 N.E.2d 486, 488 (Ind. Ct. App. 1996); Moore v. State, 637 N.E.2d

816, 822 (Ind. Ct. App. 1994), trans. denied. The jury’s determination that Smith was guilty

                                               7
of the lesser-included offense of Class D felony criminal recklessness clearly indicates that

the jury believed Gray-Scott’s and Officer’s Tatum’s accounts and did not believe Smith’s

account. As such, we conclude that any potential error stemming from the trial court’s

instructions to the jury relating to Smith’s claim of self-defense was, at most, harmless

because Gray-Scott’s and Officer Tatum’s testimony sufficiently rebuts Smith’s self-defense

claim and establishes Smith’s guilt. See Williams, 891 N.E.2d at 630.

       The judgment of the trial court is affirmed.

RILEY, J., and ROBB, J., concur.




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