Larry Ervin v. State of Indiana , 114 N.E.3d 888 ( 2018 )

FILED
Nov 28 2018, 11:42 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Victoria L. Bailey Curtis T. Hill, Jr.
Valerie K. Boots Attorney General of Indiana
Kevin Wild
Marion County Public Defender Agency Lyubov Gore
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Larry Ervin, November 28, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-965
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Plaintiff Judge
Trial Court Cause No.
49G01-1702-F6-7818
May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018 Page 1 of 16
[1] Larry Ervin appeals his conviction of Level 5 felony criminal recklessness 1 and
Level 6 felony pointing a firearm. 2 He presents two issues for review, which we
restate as:
1) Whether the State presented sufficient evidence to support his
convictions; and
2) Whether the trial court abused its discretion when it denied
his proposed jury instructions regarding defense of property
and defense of others.
In addition, we address, sua sponte, whether Ervin was subjected to double
jeopardy. We vacate in part and affirm in part.
Facts and Procedural History 3
[2] On February 26, 2017, Ervin discovered his iPad was missing. Earlier in the
day, he had been asked by a neighbor to assist with a car repair. He had last
seen his iPad prior to helping his neighbor. Ervin contacted the police and was
told someone would come to take a report. While waiting, Ervin used his Find
My iPhone application (“App”) and located his iPad in the area where he had
1
Ind. Code §§ 35-42-2-2(a) & (b)(1)(A) (2014).
2
Ind. Code § 35-47-4-3(b) (2014).
3
We heard oral argument on this matter on October 30, 2018, at Rising Sun High School in Rising Sun,
Indiana. We thank counsel for the quality of their written and oral arguments, for participating in the post-
argument discussion with the audience, and for commuting to Rising Sun. We especially thank the faculty,
staff, and students of the Rising Sun High School for their gracious hospitality and thoughtful post-argument
questions.
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gone to assist his neighbor. Shortly thereafter, Ervin saw, via the App, that his
iPad was moving around Indianapolis. Ervin decided to follow it.
[3] Ervin arrived at the intersection of Sherman and Southeastern in Indianapolis
when the App indicated his iPad was at the same intersection. Ervin saw only
one other vehicle at the intersection—a black truck that he thought he had seen
earlier in the day when he tried to help his neighbor. Ervin stopped his truck in
the middle of the intersection and stepped out to attempt to retrieve his property
from the person in the black truck. Ervin approached the black truck and
shouted for the occupant to “Stop, freeze, stop.” (Tr. Vol. II at 75.)
[4] Anthony Hines was driving the black truck. He had the windows rolled up and
did not hear Ervin. Hines saw “a big white SUV stop[] in the middle of the
intersection, a guy hop[] out of a truck, . . . grabbing for something[.]” (Id. at
57.) Hines had never met Ervin before. Hines then noticed Ervin was pointing
a gun at him. Hines did not realize a vehicle was behind him, and he put his
truck in reverse and backed into that vehicle—a Kia Sorento. Without
stopping, Hines made a “right U-turn[,]” (id. at 58), and started to drive away.
He heard Ervin start firing at him, “like [Ervin] peppered [Hines’] truck.” (Id.)
Hines executed the U-turn on the shoulder near a gas station. After verifying
Ervin was not following him, Hines called 911 and went home. Hines talked to
police at his home.
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[5] Ervin called 911 again after Hines left the scene. Ervin told the dispatcher he
had attempted to shoot the tires of the truck. The dispatcher told Ervin to
remain onsite and talk to the responding officer.
[6] Kristin Armour was an eyewitness. Armour had her twelve-year-old daughter
in the car with her. The daughter was screaming because of the gun fire.
Armour called 911 “as soon as [she] seen [sic] [Ervin] pull out the gun[.]” (Id.
at 75.) Armour parked at the gas station to talk to the police.
[7] Anthony McGowan, the driver of the Kia, ducked down in his car when shots
were fired. After the shooting stopped, McGowan exited his vehicle to talk to
Ervin. McGowan said he “didn’t have any fear [of Ervin] because [he] knew
[Ervin] wasn’t shooting at [him].” (Id. at 86.)
[8] Michael Tedders was at the gas station, with his fifteen-year-old son. He heard
“‘Stop, stop,’ then . . . pop-pop-pop-pop.” (Id. at 92.) He and his son hid in
their car during the shooting and stayed at the scene to talk to the police.
[9] Indianapolis Metropolitan Police Department (“IMPD”) Officer Richard
Faulkner, Sr., was dispatched to the scene pursuant to a report of a
“disturbance with shots fired.” (Id. at 31.) He was only “about five blocks
away[,]” (id. at 33), so he arrived in “[l]ess than a minute” after being
dispatched. (Id. at 34.) He saw “several people in the [gas station] parking lot,
in the grass area, yelling and waving their hands.” (Id.) The people were
yelling that Ervin was the shooter and had a gun.
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[10] Officer Faulkner located a white truck blocking the intersection with a white
male walking toward it. Officer Faulkner pulled his gun and “yelled at [Ervin]
to turn around” and show his hands. (Id. at 39.) Ervin leaned into his truck
and did not do as he was told. Officer Faulkner had to repeat his order before
Ervin complied. Officer Faulkner placed Ervin in handcuffs and read his
Miranda rights to him.
[11] Ervin told Officer Faulkner what had occurred, i.e., that his iPad had been
stolen, he had been tracking it, he located it at this intersection, and “he was
going to initiate a citizen’s arrest.” (Id. at 42.) Ervin told Officer Faulkner that
he had “started firing rounds at [the truck] because he thought he was going to
be hit.” (Id.)
[12] IMPD Officer Kyle Hoover was sent to talk to Hines. He noted that Hines
“was very rattled, very – he was very upset.” (Id. at 98.) Officer Hoover noted
Hines’ truck had three bullet holes in it and had damage to the “rear bumper
tailgate area that would be consistent with a fresh vehicle accident.” (Id. at 99.)
The bullet holes were all on the passenger side of the truck.
[13] The State ultimately charged Ervin with Level 5 felony criminal recklessness
and Level 6 felony pointing a firearm. At trial, Ervin requested the trial court
give jury instructions for defense of property and for defense of other. The trial
court stated:
Ervin precipitated the events, one, by blocking the traffic in the
intersection, and two, approaching, which was by all apparent –
based on all the testimony I heard, a weapon was seen either at
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the side or pulled at some point during this, but I do find that
[Ervin] precipitated the sequence of events, and the instructions
will be denied on that basis.
(Id. at 142.)
[14] During closing arguments, Ervin’s counsel explained Indiana allows a person to
use deadly force to defend other people and that was what Ervin was doing.
Ervin’s counsel also explained Ervin was allowed to use reasonable force to
protect his property. Ervin argued he was: 1) trying to protect his property by
approaching the truck in which Ervin believed the property was located; and 2)
trying to protect people from a reckless driver when the driver of the truck tried
to race away.
[15] The jury found Ervin guilty as charged. The trial court agreed with Ervin that
no malice was present during the events but also agreed with the State that, due
to the nature of the offense and that it included a firearm, some executed time
was required. The trial court sentenced Ervin to three years, with two and one-
half years suspended.
Discussion and Decision
Double Jeopardy
[16] At oral argument, sua sponte, we asked the parties whether a double jeopardy
violation occurred herein. Article 1, Section 14 of the Indiana Constitution
states: “No person shall be put in jeopardy twice for the same offense.” Indiana
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uses a two-part test for double jeopardy claims by deciding whether the offenses
share statutory elements or whether the actual evidence used to convict on one
count also establish the elements of the other count. Lee v. State, 892 N.E.2d
1231, 1233 (Ind. 2009). Although the counts of pointing a firearm and criminal
recklessness do not share all statutory elements, we review the evidence
presented herein to determine whether the jury could have used the same
evidence to find Ervin guilty of both charges.
[17] To determine if a jury used the same facts to establish the elements of each
offense, we consider the evidence, charging information, jury instructions, and
arguments of counsel. Garrett v. State, 992 N.E.2d 710, 720 (Ind. 2013). The
charging information alleged as Count I that Ervin “did perform an act that
created a substantial risk of bodily injury to another person by shooting a
firearm into . . . a place where people are likely to gather, to wit: a vehicle
driven by [] Hines while [] Hines was in said vehicle[.]” (App. Vol. II at 47.)
Count II alleged simply: “Ervin did knowingly or intentionally point a firearm .
. . at [] Hines[.]” (Id.) The jury instructions also did not clarify whether Ervin
pointed his gun at Hines at a time different than when Ervin shot his gun at
Hines. That leaves us with the evidence presented and the arguments made by
counsel.
[18] At trial, contrary evidence was presented as to whether Ervin had his iPhone or
his gun in his hand as he approached Hines’ truck. Ervin, himself, testified he
approached with his iPhone in his hand but then pulled and raised his gun
when Hines revved his engine. He stated he then lowered the gun until he
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thought Hines was going to hit the witnesses at the gas station. At that point,
all parties agree Ervin started shooting in the direction of the truck. Thus,
evidence was presented that would have allowed the jury to find that Ervin
pointed his gun at Hines at a time separate from when Ervin shot his gun at
Hines.
[19] When discussing the Level 6 felony pointing a firearm during closing
arguments, the State argued Ervin pointed the gun when Hines revved the truck
engine. However, the State followed this statement by saying: “And what
really settles the fact that he pointed that gun is that Anthony Hines’ truck was
littered with bullets.” (Tr. Vol. II at 146.) The State then proceeded to go
through the elements of criminal recklessness wherein it stated the recklessness
was proven by the fact Ervin “block[ed] traffic,” got “out of [his] vehicle,
frighten[ed] other individuals who d[id] not know what’s going on, doing it
with a gun, and firing off seven rounds.” (Id. at 147.) Thus, the State, in
closing argument, used the fact of Ervin’s shooting the gun as part of the
evidence to show he pointed the gun, and the State also used the facts occurring
from the time Ervin stopped his truck to demonstrate that he was criminally
reckless.
[20] The possibility of the jury using the same facts to support more than one charge
cannot be “remote and speculative[.]” Griffin v. State, 717 N.E.2d 73, 89 (Ind.
1999), cert. denied 530 U.S. 1247 (2000). However, a “reasonable possibility”
the jury used the same facts would indicate a defendant has been subjected to
double jeopardy. Id. Herein, the charging information does not allege facts
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that indicate Ervin pointed the gun at Hines at a time distinct from when he
pointed the gun at Hines to shoot at him. The preliminary jury instructions
merely instruct the jurors to consider how the law and evidence “appl[ies] to
each count individually[,]” (App. Vol. II at 105), and cautions the jurors that
each element of each charge must be proven by the State. None of the jury
instructions specifically advised the jury it was required to find a separate act to
prove each charge. The evidence presented was conflicting as to whether Ervin
approached Hines’ truck with the gun drawn or drew it only as he prepared to
shoot. The State invited the jury to use the fact Hines’ truck was “littered with
bullets[,]” (Tr. Vol. II at 146), to support the charge of pointing a firearm, which
is the same evidence supporting the charge of criminal recklessness.
[21] While the jury may have based its verdict on the fact Ervin approached Hines’
truck with the gun pointed at the truck, an action that could reasonably be
presumed to be separate from Ervin pulling the gun immediately prior to
shooting, the jury was also free to use the drawing of the gun immediately
before Ervin started firing to support both charges. Therefore, there is a
reasonable probability that a double jeopardy violation occurred. Accordingly,
the lesser charge of pointing a firearm must be vacated. See Richardson v. State,
717 N.E.2d 32, 55 (Ind. 1999) (when a double jeopardy violation occurs, the
proper outcome is to “vacate the conviction with the less severe penal
consequences”), holding modified on other grounds by Garrett v. State, 992 N.E.2d
710 (Ind. 2013).
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Sufficiency of Evidence
[22] Ervin argues the State did not present sufficient evidence to overcome his
defense of property and defense of others claims. Ervin claims he was
defending his property when he approached Hines’ truck. Thereafter, when
Hines was driving away, Ervin claims he was defending others from an erratic
driver. 4 A claim of “defense of property is analogous to the defense of self-
defense.” Hanic v. State, 406 N.E.2d 335, 339 (Ind. Ct. App. 1980). A claim of
defense of other is also analogous to a claim of self-defense. Rondeau v. State, 48
N.E.3d 907, 919 (Ind. Ct. App. 2016), trans. denied.
[23] Our standard for reviewing a challenge to the sufficiency of evidence to rebut a
claim of self-defense is the same standard used for any claim of insufficient
evidence. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). We neither
reweigh the evidence nor judge the credibility of the witnesses. Adetokunbo v.
State, 29 N.E.3d 1277, 1280 (Ind. Ct. App. 2015). We consider only the
4
As to Ervin’s claim he was making a lawful citizen’s arrest, Indiana Code section 35-33-1-4 states:
(a) Any person may arrest any other person if:
(1) the other person committed a felony in his presence;
(2) a felony has been committed and he has probable cause to believe that the other person
has committed that felony; or
(3) a misdemeanor involving a breach of peace is being committed in his presence and the
arrest is necessary to prevent the continuance of the breach of peace.
Ervin did not see anyone, let alone Hines, steal the iPad. In order for the theft of the iPad to qualify as the
lowest level felony, the iPad needed to be worth “at least seven hundred fifty dollars ($750)[.]” Ind. Code §
35-43-4-2(a)(1). No proof of the iPad’s value was presented at trial. Therefore, Ervin’s claims of making a
lawful citizen’s arrest are without merit because the alleged theft of his iPad was not “committed in [Ervin’s]
presence[.]” Ind. Code § 35-33-1-4(a)(3).
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probative evidence and reasonable inferences supporting the trial court’s
decision. Id. “A conviction will be affirmed if there is substantial evidence of
probative value such that a reasonable trier of fact could have concluded the
defendant was guilty beyond a reasonable doubt.” Id. at 1280-81.
[24] To prove Ervin committed Level 6 felony criminal recklessness, the State
needed to present evidence Ervin “recklessly, knowingly, or intentionally
perform[ed] an act that create[d] a substantial risk of bodily injury to another
person . . . while armed with a deadly weapon[.]” Ind. Code §§ 35-42-2-2(a) &
(b)(1)(A) (2014).
[25] “A valid claim of self-defense is legal justification for an otherwise criminal
act.” Wallace, 725 N.E.2d at 840.
A person is justified in using reasonable force against any other
person to protect the person or a third person from what the
person reasonably believes to be the imminent use of unlawful
force. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
if the person reasonably believes that that force is necessary to
prevent serious bodily injury to the person or a third person or
the commission of a forcible felony. No person in this state shall
be placed in legal jeopardy of any kind whatsoever for protecting
the person or a third person by reasonable means necessary.
Ind. Code § 35-41-3-2(c).
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With respect to property other than a dwelling, curtilage, or an
occupied motor vehicle, a person is justified in using reasonable
force against any other person if the person reasonably believes
that the force is necessary to immediately prevent or terminate
the other person’s trespass on or criminal interference with
property lawfully in the person’s possession, lawfully in
possession of a member of the person’s immediate family, or
belonging to a person whose property the person has authority to
protect. However, a person:
(1) is justified in using deadly force; and
(2) does not have a duty to retreat;
only if that force is justified under subsection (c).
Ind. Code § 35-41-3-2(e).
[26] To prevail on such claims, a defendant must show he: (1) was in a place where
he had a right to be; (2) did not provoke, instigate, or participate willingly in the
violence; and (3) had a reasonable fear of death or great bodily harm. Wilson v.
State, 770 N.E.2d 799, 800 (Ind. 2002). “When a claim of self-defense is raised
and finds support in the evidence, the State bears the burden of negating at least
one of the necessary elements.” King v. State, 61 N.E.3d 1275, 1283 (Ind. Ct.
App. 2016), trans. denied. “The State may meet this burden by rebutting the
defense directly, by affirmatively showing the defendant did not act in self-
defense, or by simply relying upon the sufficiency of its evidence in chief.” Id.
If a defendant is convicted despite his claim of self-defense, we will reverse only
if no reasonable person could say that self-defense was negated beyond a
reasonable doubt. Wilson, 770 N.E.2d at 801.
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[27] The witnesses all testified Ervin stopped in the middle of the intersection and
shot at Hines’ truck. Ervin, himself, also agrees he did those things. Ervin did
not have the right to be in the middle of the intersection blocking all traffic. No
evidence was presented Hines provoked the interaction; rather, all evidence
points to the fact Ervin instigated it and willingly pursued it. The existence of
either of these facts negates Ervin’s claims of defense of property and defense of
others. Therefore, without examining the final prong regarding reasonable fear
of death or great bodily harm, we can unequivocally say the State met its
burden to overcome Ervin’s claims because Ervin had no right to block traffic
and Ervin instigated the situation. See, e.g., King v. State, 61 N.E.3d 1275, 1284
(Ind. Ct. App. 2016) (State rebutted self-defense claim by presenting evidence
King instigated the altercation), trans. denied.
[28] Nevertheless, if we examine whether Ervin could have had reasonable fear of
death or great bodily harm, the State still overcame Ervin’s claims. When
viewing a claim of self-defense, we look to both a subjective and objective
component: “(1) a defendant must have actually believed that the use of force
was necessary to protect himself or herself; and (2) the belief must have been
one that a reasonable person would have held under the circumstances.”
Schermerhorn v. State, 61 N.E.3d 375, 383 (Ind. Ct. App. 2016), trans. denied.
[29] Ervin’s belief Hines had stolen his iPad was speculative—he did not see Hines
steal it and he did not see Hines exercising unauthorized control over the iPad.
Ervin’s decision to shoot a gun in the direction of not only the fleeing truck but
also the group of people he now argues he was trying to protect is beyond the
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scope of what a reasonable person would have believed necessary. No
evidence, beyond Ervin’s subjective belief, was presented that anyone was in
reasonable fear of death or great bodily harm from Hines. Ervin’s belief in his
right to effectuate a citizen’s arrest in these circumstances was not only
incorrect but his decision to do so in such a manner put more people at risk and
was utterly unreasonable.
[30] The State presented sufficient evidence to prove Ervin committed criminal
recklessness and, in the process of presenting such evidence, overcame Ervin’s
claims of defense of property and defense of others. See Huls v. State, 971
N.E.2d 739, 747 (Ind. Ct. App. 2012) (State effectively overcame claim of
defense when it presented evidence Huls “instigated and participated in the
violence”), trans. denied.
Jury Instruction
[31] “The manner of instructing a jury is left to the sound discretion of the trial
court.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied.
When we review the trial court’s decision regarding jury instructions, we
consider “(1) whether the tendered 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 which were given.” Davis v. State, 355 N.E.2d 836, 838 (Ind. 1976)
(internal citations omitted). “When the claimed error is the failure to give an
instruction . . . a tendered instruction is necessary to preserve error because,
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without the substance of an instruction upon which to rule, the trial court has
not been given a reasonable opportunity to consider and implement the
request.” Scisney v. State, 701 N.E.2d 847, 848 n.3 (Ind. 1998) (emphasis in
original).
[32] A defendant in a criminal case is entitled to have the jury instructed on any
theory of defense that has some foundation in evidence, Creager v. State, 737
N.E.2d 771, 777 (Ind. Ct. App. 2000), trans. denied, even if the evidence is weak
and inconsistent. Id. It is within the province of the jury to determine whether
the defendant’s evidence was believable, unbelievable, or sufficient to warrant
the use of force. Id. Generally, the determination whether a defendant acted in
self-defense is a question of fact for the jury. Id. However, the evidence on
which the claim is based must have some “probative value to support it.” Id.
[33] Ervin claims the trial court abused its discretion when it refused to give the
instructions regarding defense of property and defense of others. He argues that
even though the trial court thought he had provoked the incident, he had
presented enough evidence to support the instruction being read.
[34] As a matter of law, as discussed supra, Ervin could not have been acting in
defense of his property or others as he was not in a place he was allowed to
be—blocking an intersection—and as he instigated and provoked the situation.
Therefore, the trial court properly declined to give Ervin’s proposed
instructions. See id. at 778 (when evidence “supports the trial court’s conclusion
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as a matter of law” that defendant was not in a place he or she was allowed to
be, the trial court did not err in refusing to give a self-defense instruction).
Conclusion
[35] As the jury may have used the same evidence to support its verdict of guilt on
both charges, we vacate the charge of Level 6 felony pointing a firearm.
Because the State presented sufficient evidence of Level 5 felony criminal
recklessness and overcame Ervin’s defense claims, we affirm that conviction.
As a matter of law, Ervin was not in a place he was allowed to be and he
instigated the situation, such that the trial court did not err when it refused to
give jury instructions regarding defense of property and defense of others.
Accordingly, we vacate in part and affirm in part.
[36] Vacated in part and affirmed in part.
Baker, J., and Bailey, J., concur.
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