MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                           Feb 12 2015, 6:53 am
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
Plainfield, Indiana                                       Attorney General of Indiana

                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Roland Mobley,                                           February 12, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         29A02-1404-CR-282
        v.                                               Appeal from the Hamilton Superior
                                                         Court; The Honorable Gail Z.
                                                         Bardach, Judge
State of Indiana,                                        29D06-1310-FD-8334
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A02-1404-CR-282 | February 12, 2015      Page 1 of 6
[1]   Roland Mobley appeals his conviction of Class D felony intimidation.1 We

      affirm.


                                     Facts and Procedural History
[2]   On October 5, 2013, Mobley texted his ex-wife “I’m bleeding out now. Don’t

      sweat. It’s necessary.” (Tr. at 330.) His ex-wife notified the police, who

      decided to conduct a welfare check on Mobley. The police arrived at Mobley’s

      property, which has two houses on it. They received no response to their knock

      and announcement at the first house, so officers knocked at the second house.

      A teenage female at the second house offered to lead officers to Mobley in the

      first house. The teen and the officers walked into the first house, and the

      officers remained at the top of the basement steps while the teen went down to

      look for Mobley. The teenager came running back up the steps exclaiming

      Mobley “had a gun.” (Id. at 184.) Mobley repeatedly yelled “get out of my

      house,” (id. at 319), and threatened to shoot the people upstairs if they did not

      leave. Officers repeatedly announced themselves and asked Mobley to come to

      where they could see him to know he was safe. Instead Mobley continued to

      threaten to kill them.


[3]   Officer Tim Wright, who had known Mobley from the community, tried to

      initiate a conversation, but Mobley claimed not to recognize his voice.




      1
          Ind. Code § 35-45-2-1 (2013).


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      Nevertheless, Mobley yelled to Officer Wright, “No, I’m not okay.” (Id. at

      148.) Mobley then resumed threatening the officers.


[4]   Once officers left the house, Mobley called Lieutenant Thomas Logan on

      Logan’s cell phone and repeated his threats. Later, Mobley was in a

      conversation with his girlfriend who offered to put another officer, Deputy

      Kenton Mustain, on the phone. Mobley insisted the officers leave his property

      and that “it would not end well” if he had to come up. (Id. at 270.) In the early

      morning, officers left the property without having seen Mobley.


[5]   The State charged Mobley with Class D felony intimidation. Mobley tendered

      jury instructions regarding self-defense, but the trial court refused them, finding

      that the statute defined self-defense in a way that applied only to the use of

      force, not to the use of a threat of force. Mobley was found guilty by a jury and

      sentenced to 730 days, with 90 days executed and 640 days suspended to

      probation.


                                     Discussion and Decision
[6]   Mobley asserts the trial court erred in not giving a jury instruction regarding

      self-defense of property.

              The purpose of jury instructions 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. In reviewing a trial court’s decision to give a tendered jury
              instruction, we consider (1) whether the instruction correctly states the
              law, (2) is supported by the evidence in the record, and (3) is not
              covered in substance by other instructions. The trial court has
              discretion in instructing the jury, and we will reverse only when the
      Court of Appeals of Indiana | Memorandum Decision 29A02-1404-CR-282 | February 12, 2015   Page 3 of 6
               instructions amount to an abuse of discretion. To constitute an abuse
               of discretion, the instructions given must be erroneous, and the
               instructions taken as a whole must misstate the law or otherwise
               mislead the jury. We will consider jury instructions as a whole and in
               reference to each other, not in isolation.


[7]    Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010). “A defendant is only

       entitled to reversal if he affirmatively demonstrates that the instructional error

       prejudiced his substantial rights.” Hero v. State, 765 N.E .2d 599, 602 (Ind. Ct.

       App. 2002), trans. denied.


[8]    Mobley wanted a jury instruction on self-defense, which our legislature defined

       as:

               (d) A person:


                        (1) is justified in using reasonable force, including deadly force,
                        against any other person; and


                        (2) does not have a duty to retreat;


               if the person reasonably believes that the force is necessary to prevent
               or terminate the other person’s unlawful entry of or attack on the
               person’s dwelling, curtilage, or occupied motor vehicle.


[9]    Ind. Code § 35-41-3-2. The trial court declined to give such an instruction

       because its application would be incorrect as a matter of law in the context of

       an intimidation charge. We agree with the trial court.


[10]   Mobley was charged with intimidation, which occurs when “[a] person . . .

       communicates a threat to another person, with the intent . . . that the other

       Court of Appeals of Indiana | Memorandum Decision 29A02-1404-CR-282 | February 12, 2015   Page 4 of 6
       person engage in conduct against the other person’s will.” Ind. Code § 35-45-2-

       1 (2013). Self-defense is a theory that negates responsibility for what otherwise

       would be a criminal act by permitting individuals to use force to protect persons

       or property. Henson v. State, 786 N.E.2d 274, 276-77 (Ind. 2003). Mobley’s

       criminal act involved threatened force, but the legislature’s definition of self-

       defense does not include threat of force. See Ind. Code § 35-45-2-1. The

       legislature has, however, included both force and threat of force in other

       statutes. See, e.g., Ind. Code § 35-42-4-1 (“[rape] is a Level 1 felony if: (1) it is

       committed by using or threatening the use of deadly force.”) (emphasis added); see

       also Ind. Code § 35-42-3-3 (“(a) A person who knowingly or intentionally: . . .

       (2) removes another person, by fraud, enticement, force, or threat of force, from

       one place to another, commits criminal confinement.”) (emphasis added).


[11]   This Court is not in the position to re-write the law or to expand its language

       beyond what the legislature wrote. “[W]e will not read into the statute that

       which is not the expressed intent of the legislature. As such, it is just as

       important to recognize what the statute does not say as it is to recognize what it

       does say.” N.D.F. v. State, 775 N.E.2d 1085, 1088 (Ind. 2002) (internal citation

       omitted). If the legislature wishes self-defense to include “threat of force,” then

       we leave it to the legislature to modify that statutory definition. Accordingly,

       the trial court did not abuse its discretion by declining to give Mobley’s

       requested jury instructions, and we affirm.


[12]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 29A02-1404-CR-282 | February 12, 2015   Page 5 of 6
Vaidik, C.J., and Friedlander, J., concur.




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