                          IN THE

  Indiana Supreme Court
             Supreme Court Case No. 20S-CR-22
                                                                 FILED
                                                            Jun 26 2020, 12:51 pm


                Anthony Gammons, Jr.                             CLERK
                                                             Indiana Supreme Court
                                                                Court of Appeals
                  Appellant (Defendant below)                     and Tax Court




                              –v–

                     State of Indiana
                    Appellee (Plaintiff below)


        Argued: March 12, 2020 | Decided: June 26, 2020

            Appeal from the Marion Superior Court,
                    No. 49G06-1706-F1-21991
              The Honorable Mark D. Stoner, Judge

   On Petition to Transfer from the Indiana Court of Appeals,
                        No. 18A-CR-3005



                   Opinion by Justice Massa
Chief Justice Rush and Justices David, Slaughter, and Goff concur.
Massa, Justice.

   At his trial for attempted murder and carrying a handgun without a
license, Anthony Gammons, Jr. asserted that he acted in self-defense.
According to Gammons, he feared for his and his son’s lives when he shot
the intoxicated and aggressive Derek Gilbert—testifying that he knew
Gilbert had a history of violence and that Gilbert had threatened him—
with a gun he acknowledged he was carrying illegally. After the court
instructed the jury that he could not assert self-defense if he committed a
crime that was “directly and immediately related” to his confrontation
with Gilbert, the jury found Gammons guilty.

   Indiana’s self-defense statute instructs that “a person is not justified in
using force if the person,” among other things, “is committing . . . a
crime.” Ind. Code § 35-41-3-2. But because “literal application” of that
statute can lead to absurd results, we have held that “there must be an
immediate causal connection between the crime and the confrontation.”
Mayes v. State, 744 N.E.2d 390, 393, 392 (Ind. 2001). Because the jury
instruction used here—that a crime and confrontation need only be
“related” to defeat self-defense—diluted this causal standard, and because
we can’t conclude that this instructional error was harmless, we reverse
and remand for a new trial.


Facts and Procedural History
   According to his testimony, Anthony Gammons, Jr., after going to the
movies and paintballing with his ten-year-old son, intended to briefly
swing by his incarcerated cousin’s house during a party to make sure
nothing was broken. But when he and his son pulled up to the home,
Gammons saw a crowd milling about outside, including Derek Gilbert. In
the decade they’d been acquainted, Gammons had come to believe that
Gilbert liked to get drunk, liked to start fights, and liked to knock out,
shoot at, bully, and rob people, including his own friends. And Gammons
knew that Gilbert had been previously charged with murder.

  So when he stepped out of his car and an intoxicated Gilbert
immediately started accosting him, Gammons was put on edge. Despite


Indiana Supreme Court | Case No. 20S-CR-22 | June 26, 2020             Page 2 of 9
Gammons openly carrying a handgun and attempts by Gammons and
bystanders to calm the situation, Gilbert persisted, squaring up as if to
punch Gammons, pulling at his waistband, and asking if Gammons was
“casket ready.” Tr. Vol. III, p.7. Gammons then drew his gun and shot at
Gilbert because, as he later avowed at trial, he feared for his life and for
that of his son. But even after he was hit, Gilbert did not relent. Instead,
while spinning around, Gilbert continued “aggressing” toward Gammons
and reaching in his pants, “like he was grabbing for something.” Tr. Vol.
III, p.8. But as soon as Gammons saw Gilbert “retreat and run away,” he
“stopped shooting,” professing that he “was in shock” at how the events
had unfolded. Id. After a few moments passed, Gammons calmly walked
back to his car and drove off. Although he was struck six times, Gilbert
survived.

   Gammons was later charged with attempted murder and carrying a
handgun without a license. At his jury trial, Gammons—who conceded
that he was carrying the handgun without a license—asserted that he shot
Gilbert only in self-defense. Gilbert, however, disputed this explanation,
testifying that he did not wantonly confront Gammons. Instead, despite
repeatedly acknowledging that his memories of the incident were blurry,
Gilbert surmised that the two argued when Gammons confronted him
over a woman. After that brief and nonviolent quarrel subsided, Gilbert
and Gammons shook hands and went their separate ways. But just as
Gilbert thought the encounter was over, Gammons pulled his weapon and
shot Gilbert while his back was turned. “I got shot for no reason,” claimed
Gilbert. Tr. Vol. II, p.79.

   At the end of his trial, Gammons proposed that the court instruct the
jury that he was “justified in using deadly force” if he believed it was
“necessary to prevent serious bodily injury to himself and to prevent the
commission of the forcible felony battery against himself.” App. Vol. III,
p.102. But the trial court, over his objection, slightly tweaked this tendered
language and inserted language derived from Indiana Pattern Jury
Instruction 10.0300—that “a person may not use force if,” among other
things, “he is committing a crime that is directly and immediately related
to the confrontation.” App. Vol. III, p.110. After the State emphasized in
closing that a person “can’t be doing anything illegal at the time” he


Indiana Supreme Court | Case No. 20S-CR-22 | June 26, 2020           Page 3 of 9
claimed he was acting in self-defense, Tr. Vol. III, p.27, the jury found
Gammons guilty of both charges. 1 On appeal, our Court of Appeals
affirmed. The panel, “[w]ithout deciding” whether the trial court erred
instructionally, held that “any error was harmless.” Gammons v. State, 136
N.E.3d 604, 612 (Ind. Ct. App. 2019), vacated. “[B]ecause Gammons shot at
an unarmed man eight times, with some shots piercing Gilbert in the back
and buttocks,” the panel concluded, “the jury could not have found he
acted in self-defense.” Id. Gammons sought transfer, which we granted.


Standard of Review
   Ordinarily, “[i]nstructing the jury is a matter within the discretion of
the trial court, and we’ll reverse only if there’s an abuse of that
discretion.” Cardosi v. State, 128 N.E.3d 1277, 1284 (Ind. 2019). But “[w]hen
the appellant challenges the instruction as an incorrect statement of law,”
as here, “we apply a de novo standard of review.” Batchelor v. State, 119
N.E.3d 550, 554 (Ind. 2019). If we find “the challenged instruction to be
erroneous, we presume the error affected the verdict, and we will reverse
the defendant’s conviction unless the verdict would have been the same
under a proper instruction.” Kane v. State, 976 N.E.2d 1228, 1232 (Ind.
2012) (internal quotation omitted). “‘[R]eversal is required,’” in other
words, “‘if the jury’s decision may have been based upon an erroneous
instruction.’” Hawkins v. State, 100 N.E.3d 313, 319 (Ind. Ct. App. 2018)
(quoting Hernandez v. State, 45 N.E.3d 373, 378 (Ind. 2015)).


Discussion and Decision
   “A valid claim of self-defense is legal justification for an otherwise
criminal act.” Coleman v. State, 946 N.E.2d 1160, 1165 (Ind. 2011). Although
the self-defense statute instructs that a person cannot use force defending
himself if he, among other things, “is committing . . . a crime,” Ind. Code §




1The trial court merged the carrying verdict with the attempted murder conviction upon
sentencing.



Indiana Supreme Court | Case No. 20S-CR-22 | June 26, 2020                       Page 4 of 9
35-41-3-2, we do not strictly apply that statute because “[t]he legislature is
presumed to have intended the language used in the statute to be applied
logically and not to bring about an unjust or absurd result,” Mayes v. State,
744 N.E.2d 390, 393 (Ind. 2001). Instead, we have held that “there must be
an immediate causal connection between the crime and the
confrontation.” Id. at 394 (emphasis added). Gammons contends that the
trial court erred by instructing that he could not assert self-defense if he
was “committing a crime that [wa]s directly and immediately related to
the confrontation.” App. Vol. III, p.110 (emphasis added). 2

   We agree—the instruction stemming from Pattern Jury Instruction
10.0300 was an imprecise statement of law. By instructing that the crime
and confrontation must merely be “directly and immediately related,” the
instruction weakened the causal connection required to preclude a claim
of self-defense. While the pattern instruction uses the word “connected”
instead of “related,” we view the court’s slight word revision as a
distinction without a difference. Two events are related if they are
“connected by reason of an established or discoverable relation” and are
connected when they are “joined or linked together.” Related, Merriam-
Webster Online Dictionary, https://www.merriam-webster.com/
dictionary/related (last visited June 26, 2020); Connected, Merriam-Webster
Online Dictionary, https://www.merriam-webster.com/dictionary/
connected (last visited June 26, 2020). By requiring that the crime and
confrontation just be joined or linked, neither “connected” nor “related”
suggest the element of causation demanded by Mayes. Justice Boehm’s
concurrence in Mayes presaged this diminution of the standard, warning
that the Court—by rephrasing that “the evidence must show that but for
the defendant committing a crime, the confrontation resulting in injury to
the victim would not have occurred”—left open circumstances where a
“defendant should be free to claim self-defense.” Mayes, 744 N.E.2d at 394



2Gammons also asserts that his right to bear arms for self-defense under Article 1, Section 32
of our Indiana Constitution was impinged. But because “we generally avoid addressing
constitutional questions if a case can be resolved on other grounds,” Girl Scouts of S. Illinois v.
Vincennes Indiana Girls, Inc., 988 N.E.2d 250, 254 (Ind. 2013), we needn’t resolve this
contention.



Indiana Supreme Court | Case No. 20S-CR-22 | June 26, 2020                               Page 5 of 9
(majority opinion) (emphasis added), 396 (Boehm, J., concurring). We now
concur with Justice Boehm: “this ‘but for’ test is too broad.” Id. at 396.
Read literally, this formulation could foreclose the defense in an instance
where a defendant’s crime was tenuously connected with the
confrontation, like the defense being unavailable to a defendant who “is
illegally gambling and a fight erupts because the victim believes the
defendant is cheating[, leading] to the victim’s death.” Id. at 396–97 (citing
State v. Leaks, 103 S.E. 549, 551 (S.C. 1920)). Since this “but for” test can
impede the defense in the same unjust and absurd ways as a literal
reading of the statute, we reject that rephrasing and reiterate that self-
defense is barred only when there is “an immediate causal connection
between the crime and the confrontation.” Id. at 394 (majority opinion).

   And we agree with Gammons that this instructional error could have
served as the basis for the jury’s decision to convict. Because Gammons
asserted that he fired the shots only until Gilbert retreated, we cannot be
sure that the trial’s outcome would have been the same under a proper
instruction and presume this error affected the verdict. To be sure,
“[f]iring multiple shots undercuts a claim of self-defense” once a
defendant disables the purported aggressor. Id. at 395 n.2 (citation
omitted); see also Schlegel v. State, 238 Ind. 374, 383, 150 N.E.2d 563, 567
(1958) (explaining that if a victim falls to the ground after a first shot is
fired in self-defense, a second shot is unnecessary). But the account
conveyed by Gammons is like that made by a defendant who—after an
aggressive and intoxicated driver who almost hit him with his car said “I
got something for your ass” and reached for his waistline—grabbed a gun
from his van and fired two shots, striking the driver. Hood v. State, 877
N.E.2d 492, 494, 497 (Ind. Ct. App. 2007), trans. denied. After the driver
continued staggering and allegedly lunged forward, Hood fired four more
shots until the driver collapsed. Id. Following Hood’s conviction of
voluntary manslaughter at trial, however, our Court of Appeals reversed
and remanded for a new trial, holding, among other things, that it didn’t
“find the fact that six shots were fired to be dispositive” when Hood
asserted that the driver was still coming toward him as he fired. Id. at 496.
See also Brand v. State, 766 N.E.2d 772, 776–77 (Ind. Ct. App. 2002)




Indiana Supreme Court | Case No. 20S-CR-22 | June 26, 2020           Page 6 of 9
(reversing conviction despite defendant firing four shots purportedly in
self-defense), trans. denied.

   Gammons, like Hood, avers that he kept shooting only because his
assailant continued at him after he fired his first shots. And Gammons
claims that Gilbert was only struck in the back and buttocks because he
spun around while he continued advancing. This account differs from an
instance where the defense has been repudiated when evidence showed
that a defendant

   • shot a victim who “was either falling down or already on the
     ground,” and “at least one bullet struck her in the back,” Mayes, 744
     N.E.2d at 395 n.2;
   • fired three times after a victim raised his hands and said “Do what
     you got to do,” Randolph v. State, 755 N.E.2d 572, 574 (Ind. 2001);
   • shot one victim in the chest and then “backed up as he was firing,
     fatally hitting [another victim] three times,” all while “he stopped,
     reloaded, and continued firing,” Brown v. State, 738 N.E.2d 271, 272
     (Ind. 2000);
   • smiled and “brandished a handgun and fired multiple shots at [a
     victim] as he approached his vehicle,” Miller v. State, 720 N.E.2d 696,
     700 (Ind. 1999);
   • “chopped and shot [victims] several times, even after they were
     incapacitated,” Birdsong v. State, 685 N.E.2d 42, 46 (Ind. 1997);
   • shot a victim—after he fell to his hands and knees—a second time,
     Hill v. State, 532 N.E.2d 1153, 1153 (Ind. 1989);
   • shot a victim—“who was unarmed and on the ground pleading for
     his life”—multiple times, Almodovar v. State, 464 N.E.2d 906, 909 (Ind.
     1984);
   • shot a victim “multiple times in the back” as he asked “‘What’s all
     the loud talk about?’ and started to get out of the vehicle,” James v.
     State, 96 N.E.3d 615, 617 (Ind. Ct. App. 2018), trans. denied;
   • shot a victim after he “went to his knees and put his arms and hands
     up in a defenseless position,” Fuentes v. State, 952 N.E.2d 275, 279
     (Ind. Ct. App. 2011), trans. denied;




Indiana Supreme Court | Case No. 20S-CR-22 | June 26, 2020         Page 7 of 9
   • fired “multiple shots, one of which hit an innocent bystander” after a
     fight was already over, Simpson v. State, 915 N.E.2d 511, 515 (Ind. Ct.
     App. 2009), trans. denied; or
   • “shot first,” and “[t]wenty-three of the thirty-two bullet casings
     recovered from the scene were linked to” his gun, Patton v. State, 837
     N.E.2d 576, 581 (Ind. Ct. App. 2005).
Unlike a defendant shooting at an incapacitated or defenseless victim,
Gammons maintains that he shot only until Gilbert retreated. Based on his
account of the events leading up to the confrontation, we cannot say with
certainty that the jury would have convicted Gammons without hearing
the erroneous instruction.


Conclusion
   We do not pass judgment today on whether Gammons acted in self-
defense when he shot Gilbert. That is a question for the jury, which may
yet reject this justification. But we cannot categorically bar those jurors
from considering the defense when a crime is merely “related to” or
“connected to” a confrontation—rather, as we held in Mayes, there must
be an immediate causal connection between the two. Because we cannot
conclusively determine that the verdict would have been the same absent
this instructional error, we reverse and remand for a new trial.


Rush, C.J., and David, Slaughter, and Goff, JJ., concur.




Indiana Supreme Court | Case No. 20S-CR-22 | June 26, 2020          Page 8 of 9
ATTORNEYS FOR APPELLANT
Joel M. Schumm
Indianapolis, Indiana

Valerie K. Boots
Marion County Public Defender Agency
Appellate Division
Indianapolis, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Angela N. Sanchez
Assistant Section Chief, Criminal Appeals
Indianapolis, Indiana

Caryn N. Szyper
Deputy Attorney General
Indianapolis, Indiana




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