Jimmy Huesgen v. State of Indiana (mem. dec.) ( 2015 )

MEMORANDUM DECISION
Jun 15 2015, 10:10 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Danielle L. Gregory Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Christina D. Pace
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jimmy Huesgen, June 15, 2015
Appellant-Defendant, Court of Appeals Case No.
49A04-1411-CR-538
v. Appeal from the Marion Superior
Court; The Honorable Clark Rogers,
Judge;
State of Indiana, 49F25-1301-FD-5992
Appellee-Plaintiff.
May, Judge.
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[1] Jimmy Huesgen appeals his conviction of Class A misdemeanor battery, 1
asserting the court erred when it declined to give a self-defense instruction.
[2] We affirm.
Facts and Procedural History
[3] On January 25, 2013, Huesgen and Silverio Guadarrama were working at
Harlan Bakery. Guadarrama was the team leader for Huesgen’s area. The two
men argued. Huesgen grabbed Guadarrama around the neck, leaving a red
mark. Guadarrama left the area and reported the incident to the supervisor.
Management took Huesgen to Human Resources and called the police.
Officers interviewed Huesgen. After viewing surveillance video, the State
charged Huesgen with Class D felony strangulation, 2 Class D felony
intimidation, 3 and Class A misdemeanor battery.
[4] After the State presented its case, the parties agreed to final jury instructions.
During that discussion, Huesgen’s counsel asked for an instruction on Class B
misdemeanor battery as a lesser included offense. Huesgen then testified and
asserted he acted in self-defense. After the close of evidence, Huesgen’s counsel
requested a self-defense instruction, but he did not tender a written copy of the
instruction or refer to a pattern jury instruction number. The trial court denied
1
Ind. Code § 35-42-2-1 (2012).
2
Ind. Code § 35-42-2-9 (2006).
3
Ind. Code § 35-45-2-1 (2006).
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his request. The jury found Huesgen not guilty of strangulation and
intimidation, but guilty of Class A misdemeanor battery.
Discussion and Decision
[5] “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,
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). See also Ind. Crim. Rule 8(D) (“[r]equested instructions must be
reduced to writing”). Ind. Trial Rule 51(E) allows a party to request jury
instructions from the Indiana Pattern Jury Instructions by designating the
number of such. Coy v. State, 999 N.E.2d 937, 943 (Ind. Ct. App. 2013).
[6] Huesgen did not tender a written instruction or cite the relevant pattern jury
instruction. Huesgen argues he “did not request a deviation from the self
defense instruction in the Indiana Pattern Jury Instructions,” (Appellant’s App.
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at 8), but Huesgen did not request any particular instruction at all. Huesgen has
waived any error in the jury instructions. See, e.g., Mitchell v. State, 742 N.E.2d
953, 955 (Ind. 2001) (objection to missing information in instruction waived
when no alternate instruction tendered). See also, Baker v. State, 948 N.E.2d
1169, 1178 (Ind. 2011) (issue waived when appellant did not offer an instruction
of his own).
[7] Waiver notwithstanding, the evidence did not permit an inference that Huesgen
acted in self-defense. To support a claim of self-defense, Huesgen 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.” Hobson v. State, 795 N.E.2d 1118, 1121 (Ind. Ct. App.
2003), trans. denied.
[8] Huesgen argues he felt threatened when Guadarrama called him over and said
“mother fucker I went to report you.” (Tr. at 74.) Huesgen testified “the way
he was talking to me I feel [sic] that I was in danger and so I reacted and I
pushed him.” (Id. at 75.) The State presented video evidence that Huesgen was
the instigator of the violence. The trial court did not abuse its discretion in
determining Huesgen was not entitled to a self-defense jury instruction because
he instigated the physical violence against Guadarrama. See Henson v. State, 786
N.E.2d 274 (Ind. 2003) (self-defense instruction declined because “there is
nothing in the record to sustain Defendant contention that he was reasonable in
his belief of imminent bodily harm”).
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Conclusion
[9] The trial court did not abuse its discretion in declining to instruct the jury on
self-defense. Huesgen waived his argument when he failed to tender a written
jury instruction or refer to the pattern jury instruction number. Waiver
notwithstanding, the evidence in the record did not support an instruction on
self-defense. Accordingly, we affirm.
[10] Affirmed.
Robb, J., and Mathias, J., concur.
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