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                       Mar 13 2013, 8:42 am
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.


ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

LISA M. JOHNSON                                 GREGORY F. ZOELLER
Brownsburg, Indiana                             Attorney General of Indiana

                                                GEORGE P. SHERMAN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

BRUCE ANDERSON,                                 )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 53A05-1209-CR-482
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE MONROE CIRCUIT COURT
                      The Honorable Andrea K. McCord, Special Judge
                             Cause No. 53C09-1101-CM-232


                                      March 13, 2013

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARTEAU, Senior Judge
                              STATEMENT OF THE CASE

       Bruce Anderson appeals his conviction of battery resulting in bodily injury, a

Class A misdemeanor. Ind. Code § 35-42-2-1 (2009). We affirm.

                                             ISSUE

       Anderson raises one issue, which we restate as: whether the trial court committed

fundamental error in instructing the jury.

                        FACTS AND PROCEDURAL HISTORY

       On the afternoon of December 20, 2010, Beth Barnett asked Albert Rizzo to help

her with a writing project. Barnett was staying at Anderson’s apartment. When Rizzo

arrived, Anderson was using a computer in his bedroom. Barnett and Rizzo entered

Anderson’s bedroom and began to discuss a movie Rizzo had seen. Anderson told them

to quiet down or go into another room.

       Barnett and Rizzo went into another room and finished their conversation, and

Rizzo returned to Anderson’s bedroom. Rizzo started to talk, and Anderson told him to

be quiet. Anderson appeared to be angry, and Rizzo asked him if he needed help.

Anderson rejected Rizzo’s offer of assistance, picked up an empty plastic bottle, and

threw it at Rizzo. Rizzo picked up the bottle and threw it over Anderson’s shoulder. In

response, Anderson stood up and grabbed Rizzo by the throat. Next, Anderson pushed

Rizzo out of the bedroom and onto the floor, climbed onto him, and punched him in the

face several times until Barnett told Anderson to stop. Anderson then stood up, grabbed

a stick, and threatened to do more harm unless Rizzo left. Rizzo went back to his

apartment and called the police.

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        The State charged Anderson with battery resulting in bodily injury.         A jury

determined that Anderson was guilty as charged, and the court sentenced him to time

served. This appeal followed.

                             DISCUSSION AND DECISION

        The trial court instructed the jury on self-defense in relation to protecting one’s

person, but not as to protecting one’s dwelling. Anderson contends that the jury should

have been instructed on protection of one’s dwelling because he believed he was

defending his home from Rizzo. However, during a conference outside the presence of

the jury, the parties discussed whether the jury should be instructed on the defense of

protecting one’s dwelling. The court indicated that it would use a pattern instruction

addressing defense of “the person, not the dwelling.” Tr. p. 220. The court asked if

anyone objected, and Anderson said, “No, that’s fine.” Id. at 219. Failure to object to a

jury instruction issue at trial results in waiver of the issue on appeal. Clay v. State, 766

N.E.2d 33, 36 (Ind. Ct. App. 2002). Therefore, the matter is waived.

        Anderson argues that the court’s failure to instruct the jury on the defense of

protecting one’s dwelling amounted to fundamental error. A litigant may avoid waiver

by demonstrating that failure to give an instruction constitutes fundamental error. Id.

Fundamental error is a substantial, blatant violation of due process. Id. To qualify as

fundamental error, an error must be so prejudicial to the rights of the defendant as to

make a fair trial impossible. Id.

        The statute that governs defense of one’s person or dwelling provides, in relevant

part:

                                             3
       A person:

              (1) is justified in using reasonable force, including deadly force,
              against another 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.

Ind. Code § 35-41-3-2 (2006). When determining whether a trial court should have given

an instruction, we consider: (1) whether the instruction correctly states the law; (2)

whether there is evidence in the record to support the giving of the instruction; and (3)

whether the substance of the tendered instruction is covered by other instructions that are

given. Springer v. State, 798 N.E.2d 431, 433 (Ind. 2003). Moreover, a defendant in a

criminal case is entitled to have the jury instructed on any theory of defense that has some

foundation in the evidence. Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct. App. 2001).

We apply this rule even if the evidence is weak and inconsistent so long as the evidence

presented at trial has some probative weight to support it. Id.

       Considering all of the evidence in the current case, including Anderson’s

testimony in his own defense, there is no evidence to support a defense of protecting

one’s dwelling. Rizzo was not on the property unlawfully because Barnett had invited

him there, and Anderson conceded Barnett had the authority to issue such an invitation.

In addition, Rizzo threw an empty water bottle at Anderson, which may have justified the

jury instruction on defense of one’s person, but Rizzo did not in any way attack or

damage Anderson’s dwelling. Finally, Anderson had already attacked Rizzo by the time

he told Rizzo to leave the apartment, so Rizzo’s right to be on the property had not been

                                             4
revoked at the time of the battery. Given the total lack of evidence of an unlawful

presence or a threat to Anderson’s dwelling, there would have been no reason to instruct

the jury on the defense of protecting one’s home. See id. at 248 (holding that the trial

court properly refused to instruct the jury on self-defense where there was no evidentiary

support in the record). Consequently, there is no error, much less fundamental error.

                                     CONCLUSION

      For the reasons stated above, we affirm the judgment of the trial court.

      Affirmed.

KIRSCH, J., and BARNES, J., concur.




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