MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                            FILED
this Memorandum Decision shall not be                                        Nov 20 2017, 8:55 am
regarded as precedent or cited before any
                                                                                  CLERK
court except for the purpose of establishing                                  Indiana Supreme Court
                                                                                 Court of Appeals
the defense of res judicata, collateral                                            and Tax Court

estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Ruth Johnson                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        James T. Whitehead
Timothy J. O’Connor                                     Deputy Attorney General
O’Connor & Auersch                                      Indianapolis, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Rebecca Lawson,                                         November 20, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1703-CR-445
        v.                                              Appeal from the
                                                        Marion Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Marc T. Rothenberg, Judge
                                                        Trial Court Cause No.
                                                        49G02-1602-MR-6182



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-445 | November 20, 2017          Page 1 of 9
[1]   Rebecca Lawson (“Lawson”) was convicted, after a jury trial, of murder,1 a

      felony, and attempted murder,2 a Level 1 felony, and was sentenced to an

      aggregate term of eighty-five years in the Indiana Department of Correction.

      Lawson appeals her convictions and raises the following restated issue for our

      review: whether the trial court committed fundamental error when it failed to

      give a self-defense instruction to the jury.


[2]   We reverse and remand.


                                       Facts and Procedural History
[3]   Lawson and Patrick Brown (“Brown”) had an on and off again relationship for

      several years, beginning in 2012. During this time, Brown also dated Cecelia

      Land (“Land”). Brown and Land had broken up sometime in 2015, but were

      back together again by February 2016.


[4]   On February 12, 2016, Lawson sent Brown a text message asking if he wanted

      her to bring dinner over, and Brown responded that he was going to be working

      late. State’s Ex. 89 at 4. Lawson texted Brown back a little later, and when he

      responded in an angry manner, she decided to drive over to Brown’s house.

      Lawson drove to Brown’s house and saw both Brown’s car and Land’s car in

      the driveway. Lawson pulled into the driveway and rolled down her window.

      Brown came outside and told her, “you should just go.” Tr. Vol. III at 99. Land



      1
          See Ind. Code § 35-42-1-1.
      2
          See Ind. Code § 35-42-1-1; Ind. Code § 35-41-5-1(a).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-445 | November 20, 2017   Page 2 of 9
      was looking out the front door of the house and said, “what’s going on.” Id.

      Lawson had brought collars for Brown’s dogs, and she handed those to him and

      started to drive away. At that time, Land had begun walking toward Lawson’s

      car. Lawson observed Land throw her arms up in the air, and saw Brown

      restrain Land by grabbing her under the arms and pushing her back.


[5]   Lawson then drove to a nearby Walgreen’s, and while there, she texted Brown

      and told him that Land needed to leave. State’s Ex. 89 at 5. When Brown did

      not answer her, Lawson texted him and informed him that she was coming

      back to his house to retrieve a gun that belonged to her that she had loaned to

      Brown. Id. at 6. The gun was important to her because it was a gift from her

      father, who was very ill. Brown still did not respond, so Lawson texted him

      that she was returning to his house to get her gun and other belongings because

      he had made his choice of who he wanted to be with. Tr. Vol. III at 101; State’s

      Ex. 89 at 6.


[6]   When Lawson returned to Brown’s house, she parked her car in the driveway,

      and Brown came out immediately with Land following him. Lawson always

      kept a handgun with her, either in her purse or in a holster in her car. When

      she parked the car and saw Land coming out of the house, Lawson took the

      gun from her purse and put it in her lap. Lawson felt that she needed the gun

      because Land had previously threatened to “kick [her] ass.” Tr. Vol. III at 115.

      At trial, Land admitted to having threatened to “kick [Lawson’s] ass” during

      one phone call. Tr. Vol. II at 27.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-445 | November 20, 2017   Page 3 of 9
[7]   As Land approached Lawson’s car, Lawson yelled, “I have a gun and a gun

      permit,” and Land responded, “I don’t give a shit.” Id. at 36. Brown was

      standing next to the driver’s side window, which was open partially. Brown

      told Lawson to leave, and she responded that he needed to bring her gun. Land

      cursed at both Brown and Lawson and then began to turn and walk away.

      Lawson told Brown, “just go get my gun and I’ll leave,” but Brown saw the gun

      in Lawson’s lap, and he reached into the car and attempted to grab it. State’s

      Ex. 93 at 3, 11-12. Lawson told him not to grab her gun, and she grabbed it

      herself and pulled it back. Brown said, “I’ll rip that mother fucker out of your

      hand,” and Lawson yelled again for Brown to get her gun. Id. at 12. Brown

      then reached into the car again, grabbed Lawson’s face and squeezed “really

      hard” while telling her to, “shut the fuck up!” Id. During this time, Land was

      coming closer to Lawson’s car.


[8]   Brown had never been physically violent with Lawson before, and when he

      reached in and began squeezing her face, she was terrified. Tr. Vol. III at 102.

      Lawson had the gun in her hand, and she fired in Brown’s direction, striking

      him in the chest. Land was approaching with something in her hand, so

      Lawson also fired in her direction, striking her twice in the face. The object in

      Land’s hand was later determined to be a cellphone.


[9]   After realizing what had happened, Lawson dropped the gun in her seat and

      called 911. She told the dispatcher that she had shot two people. When the

      police arrived at the scene, Officer John Montgomery (“Officer Montgomery”)

      of the Indianapolis Metropolitan Police Department was one of the first to

      Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-445 | November 20, 2017   Page 4 of 9
       respond, and when he asked who shot who, Lawson told him, “I shot them.”

       Tr. Vol. II at 100. Officer Montgomery observed several cell phones, articles of

       clothing, and part of a thumb on the ground. He also located a gun on the front

       seat of Lawson’s car. Lawson was taken into custody. Brown later died of the

       gunshot wound to his chest. As a result of the gunshots wounds she sustained,

       Land lost her right eye, part of her thumb, and her sinus cavity and had to have

       part of her jaw reconstructed.


[10]   On February 17, 2016, the State charged Lawson with murder and attempted

       murder. A jury trial was held, at which Lawson raised a claim of self-defense.

       This issue of self-defense was discussed by the trial court, defense counsel, and

       the State numerous times during the trial. The trial court indicated that it

       intended to give a jury instruction on self-defense. Tr. Vol. III at 60-66, 136-39.

       The State conceded that giving a self-defense instruction to the jury was proper.

       Id. at 136-37. During discussion on final jury instructions, defense counsel

       tendered a corollary final instruction regarding the subjective nature of a claim

       of self-defense. The trial court refused to give the tendered instruction, and in

       doing so, stated, “This instruction actually is already addressed in the self

       defense instruction that I have given, and it is addressed in the sense that the

       subjective nature is already addressed.” Id. at 138. Despite this discussion

       about, and agreement to give, a self-defense instruction to the jury, the trial

       court did not give a self-defense instruction to the jury during final instructions.

       Neither party objected to the omission of the instruction. At the conclusion of




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-445 | November 20, 2017   Page 5 of 9
       the trial, Lawson was found guilty of murder and attempted murder and was

       sentenced to an aggregate term of eighty-five years. Lawson now appeals.


                                      Discussion and Decision
[11]   Generally, the manner of instructing the jury is a matter within the sound

       discretion of the trial court, which we review for an abuse of that discretion.

       Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). “Where, as here, the

       defendant failed to preserve an alleged instructional defect, the objection is

       waived, and reversal is warranted only in instances of fundamental error.” Id.

       (citing Wright v. State, 730 N.E.2d 713, 716 (Ind. 2000)). Fundamental error

       occurs where there is a substantial blatant violation of basic principles and

       where, if not corrected, it would deny a defendant fundamental due process. Id.

       This exception to the general rule requiring a contemporaneous objection is

       narrow, providing relief only in egregious circumstances that made a fair trial

       impossible. Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). “A finding of

       fundamental error essentially means that the trial judge erred by not acting

       when he or she should have.” Whiting v. State, 969 N.E.2d 24, 34 (Ind. 2012).


[12]   Lawson argues that the trial court erred when it failed to instruct the jury as to

       her claim of self-defense. She contends that the evidence presented at trial

       supported giving the instruction and that it is clear that the trial court intended

       to instruct the jury on self-defense. Lawson further asserts that it was reversible

       error to not give a self-defense instruction because all of the parties agreed that

       the jury should be instructed as to self-defense, and the elements of self-defense


       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-445 | November 20, 2017   Page 6 of 9
       were discussed in closing arguments, and in the absence of an instruction, the

       jury was “left to cobble together the elements of self-defense as best it could.”

       Appellant’s Br. at 20. Lawson maintains that this was not sufficient, and she was

       denied a fair trial.


[13]   A criminal defendant is entitled to have a jury instruction on any theory or

       defense which has some foundation in the evidence. Hernandez v. State, 45

       N.E.3d 373, 376 (Ind. 2015). “‘We apply this rule even if the evidence is weak

       and inconsistent so long as the evidence presented at trial has some probative

       value to support it.’” Id. (quoting Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct.

       App. 2001)). However, even if the failure to give a tendered jury instruction

       was error, this court must assess whether the defendant was prejudiced by the

       trial court’s failure to give the instruction. Id. (citing Burton v. State, 978 N.E.2d

       520, 526 (Ind. Ct. App. 2012)).


[14]   A valid claim of self-defense is a legal justification for an otherwise criminal act.

       Richardson v. State, 79 N.E.3d 958, 964 (Ind. Ct. App. 2017), trans. denied. “A

       person is justified in using reasonable force against another person to protect the

       person or a third person from what the person reasonably believes to be the

       imminent use of unlawful force.” Ind. Code § 35-41-3-2. A claim of self-

       defense requires a defendant to have acted without fault, been in a place where

       he or she had a right to be, and been in reasonable fear or apprehension of

       bodily harm. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-445 | November 20, 2017   Page 7 of 9
[15]   Here, the evidence presented at trial showed that Lawson had been involved in

       a relationship with Brown and that she went to his home to retrieve a handgun

       that she had loaned him. Although Brown told Lawson to leave, she responded

       that she would leave if he brought her the gun that she had loaned him. At that

       time, Brown noticed a handgun sitting in Lawson’s lap and reached into the car

       and attempted to take the gun away from her. Lawson told him not to grab her

       gun and grasped it herself and pulled it back from Brown’s reach. Brown then

       reached into the car again, gripped Lawson’s face and squeezed “really hard”

       while telling her to, “shut the fuck up!” State’s Ex. 93 at 12. During this time,

       Land was coming closer to Lawson’s car. Because Brown had never been

       physically violent with Lawson before, when he reached in and began

       squeezing her face, she was terrified, and she fired in Brown’s direction. At the

       same time, Land was approaching with something in her hand, so Lawson also

       fired in her direction.


[16]   Based on this evidence, the trial court concluded that there was sufficient

       evidence to give an instruction on self-defense and indicated that it intended to

       give the jury the pattern jury instruction on self-defense. Tr. Vol. III at 60-66,

       136-39. The State conceded that giving a self-defense instruction to the jury

       was proper. Id. at 136-37. We conclude that sufficient evidence was presented

       at trial to support the giving of a self-defense instruction.


[17]   As stated above, it is clear that the trial court intended to instruct the jury as to

       self-defense. However, the instruction was inexplicably not given to the jury

       during final instructions. During the trial, evidence was presented to support

       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-445 | November 20, 2017   Page 8 of 9
       Lawson’s claim of self-defense and the parties argued the issue during closing

       arguments. However, without an instruction to set out the elements of the

       defense of self-defense, the jury was not made aware of the exact elements that

       would need to be proven and were left to either assume that they were not

       allowed to consider a claim of self-defense or to guess how to apply the facts

       presented and the arguments made to the law. Therefore, this failure to instruct

       the jury on self-defense denied Lawson fundamental due process and made a

       fair trial impossible. Halliburton, 1 N.E.3d at 678. Because the trial court failed

       to act when it should have, we find that fundamental error occurred. Whiting,

       969 N.E.2d at 34. Based upon the error in failing to instruct the jury on

       Lawson’s claim of self-defense, we reverse and remand to the trial court for a

       new trial.


[18]   Reversed and remanded.


[19]   Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1703-CR-445 | November 20, 2017   Page 9 of 9
