Sylvester Smith v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before May 22 2014, 10:31 am
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:
THOMAS W. VANES GREGORY F. ZOELLER
Office of the Public Defender Attorney General of Indiana
Crown Point, Indiana
JUSTIN F. ROEBEL
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
SYLVESTER SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 45A03-1310-CR-402
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Thomas P. Stefaniak, Jr., Judge
Cause No. 45G04-1009-FB-89
May 22, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
On September 16, 2010, during an alleged verbal confrontation, Appellant-Defendant
Sylvester Smith threw liquid drain cleaner in Don Scott’s face and struck Scott with a
machete. Two days later, on September 18, 2010, Appellee-Plaintiff the State of Indiana (the
“State”) charged Smith with one count of Class B felony attempted aggravated battery and
two counts of Class C felony battery. On March 4, 2013, the trial court conducted a jury trial
on the matter. Smith did not dispute during trial that he threw liquid drain cleaner in Scott’s
face or that he struck Scott with a machete, but claimed that he did so in self-defense. The
State, for its part, presented eyewitness testimony which rebutted Smith’s claim of self-
defense. Following trial, the jury found Smith guilty of three counts of the lesser-included
charge of Class D felony criminal recklessness. On the State’s motion, the trial court merged
the three counts into a single criminal conviction. The trial court then sentenced Smith to a
one-year term of imprisonment in the Department of Correction (“DOC”).
Smith challenges his conviction on appeal by arguing that the trial court erroneously
instructed the jury on his claim of self-defense. We affirm, concluding that any potential
error in instructing the jury was harmless in light of the eyewitness testimony that sufficiently
rebutted Smith’s claim of self-defense and established Smith’s guilt.
FACTS AND PROCEDURAL HISTORY
According to the facts most favorable to the jury’s verdict, at approximately 3:00 p.m.
on September 16, 2010, Scott went to Smith’s residence to speak to Smith about an on-going
dispute between their daughters. Around this time, Scott’s wife, Diane Gray-Scott,
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separately approached Smith’s residence and observed Smith and Scott speaking to each
other in Smith’s driveway. Also around this time, Gary Police Officer Jeffery Tatum was
passing Smith’s residence in his police vehicle and noticed Smith and Scott standing in the
driveway, approximately ten or fifteen feet away from Smith’s garage, engaged in “what
appear[ed] to be a verbal altercation.” Tr. p. 130.
Gray-Scott and Officer Tatum observed Smith throw liquid from a jar in Scott’s face
as Scott “turned to walk away.” Tr. p. 130. Gray-Scott and Officer Tatum also observed
Smith strike Scott on the arm with a machete. After observing the attack on Scott, Officer
Tatum approached Scott and Smith, drew his weapon, and ordered Smith to drop the
machete. Smith did not initially comply with Officer Tatum’s request, but instead took a few
steps toward Officer Tatum. However, Smith eventually complied with Officer Tatum’s
repeated requests after Officer Tatum threatened to shoot if Smith did not drop the machete.
The liquid that Smith threw in Scott’s face was subsequently determined to be “an
extremely caustic solution containing sodium hydroxide,” which is commonly found in liquid
drain cleaner. As a result of the attack, Scott suffered chemical burns, patches of hair loss,
and two cuts on his upper arm. Scott testified that the liquid caused a burning sensation and
that he “could feel skin from [his] jaw, [his] gum, [his] tongue [ ] burning.” Tr. p. 35. Scott
further testified that he was “spitting up what he could see [were] little pieces of skin and
blood.” Tr. p. 35.
On September 18, 2010, the State charged Smith with one count of Class B felony
attempted aggravated battery and two counts of Class C felony battery. Smith did not dispute
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during trial that he threw liquid drain cleaner in Scott’s face or that he struck Scott with a
machete, but claimed that he did so in self-defense. The State, for its part, presented
eyewitness testimony which rebutted Smith’s claim of self-defense.
Following trial, the jury found Smith guilty of three counts of Class D felony criminal
recklessness, which is a lesser-included offense of each of the charged offenses. On the
State’s motion, the trial court merged the three convictions into a single conviction for
criminal recklessness and sentenced Smith to one year in the DOC. This belated appeal
follows.
DISCUSSION AND DECISION
Smith contends that the trial court abused its discretion in instructing the jury. For its
part, the State argues that the trial court did not abuse its discretion in instructing the jury.
The State also argues that even if the trial court did abuse its discretion in instructing the jury,
any potential error was harmless in light of the eyewitness testimony rebutting Smith’s claim
of self-defense and establishing Smith’s guilt.
“The purpose of a jury instruction ‘is to inform the jury of the law
applicable to the facts without misleading the jury and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct verdict.’”
Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (quoting Chandler v. State,
581 N.E.2d 1233, 1236 (Ind. 1991)). Instruction of the jury is left to the sound
judgment of the trial court and will not be disturbed absent an abuse of
discretion. Schmidt v. State, 816 N.E.2d 925, 930 (Ind. Ct. App. 2004), trans.
denied. Jury instructions are not to be considered in isolation, but as a whole
and in reference to each other. Id. The instructions must be a complete,
accurate statement of the law which will not confuse or mislead the jury. Id. at
930-31. Still, errors in the giving or refusing of instructions are harmless
where a conviction is clearly sustained by the evidence and the jury could not
properly have found otherwise. Id. at 933 (citing Dill, 741 N.E.2d at 1233).
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Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008).
With regard to Smith’s claim of self-defense, the trial court instructed the jury as
follows:
INSTRUCTION NO. 20
It is well settled that a defendant need only raise the issue of self-
defense so that a reasonable doubt exists. The State then carries the burden of
negating the presence of one or more of the necessary elements of self-defense.
1. That the defendant acted without fault;
2. Was in a place where he had a right to be in relation to his alleged
assailant; or
3. Acted in reasonable fear or apprehension of death or great bodily
harm.
The questions concerning the existence of the imminent use of unlawful
force, the necessity or apparent necessity of using force, as well as the amount
of force necessary to repel an attack, can be determined only from the
standpoint of the defendant at the time and under all existing circumstances.
In the exercise of self-defense, the defendant ordinarily is required to act
immediately, without time to deliberate and investigate. In such
circumstances, the danger which exists only in appearance is to him as real and
imminent as if it were actual. The important inquiry is: Was the danger actual
to the defendant’s comprehension? It is not whether an injury was actually
intended by the assailant, but whether it presented a danger from the
defendant’s point of view under the circumstances.
Tr. pp. 333-34; Appellant’s App. p. 108.
INSTRUCTION NO. 23
It is an issue whether the defendant acted in defense of his dwelling.
A person may use reasonable force, including deadly force, against
another person, and does not have a duty to retreat, if he reasonably believes
that the force is necessary to prevent or terminate the person’s unlawful entry
of or attack on his dwelling.
The State has the burden of proving beyond a reasonable doubt that the
defendant did not act in defense of his dwelling.
Tr. p. 336; Appellant’s App. p. 111.
INSTRUCTION NO. 24
Threats alone are not sufficient to justify the use of deadly force under a claim
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of self-defense.[1]
Tr. p. 336; Appellant’s App. p. 112.
Smith does not challenge Instructions Twenty or Twenty-three on appeal. Smith only
challenges Instruction Twenty-four, claiming that the instruction was incomplete and
misleading as it did not differentiate between physical or verbal threats. However, we need
not determine whether the challenged instruction was incomplete or misleading, as any
potential error was, at most, harmless in light of the eyewitness testimony which rebuts
Smith’s claim of self-defense and establishes Smith’s guilt.
Again, Smith did not dispute that he threw liquid drain cleaner in Scott’s face or that
he struck Scott with a machete at trial, but claimed that he did so in self-defense. In claiming
that he acted in self-defense, Smith asserted that his encounter with Scott occurred inside of
Smith’s garage and that he believed the attack was necessary to get out of the garage and to
prevent his own death. Smith asserted that he was working on a sink in his garage when he
was startled by a male voice saying, “I want to talk to you, because I’m tired of … having to
talk to you about disrespecting my wife and my children.” Tr. p. 220. Smith further asserted
that when he turned toward the voice, he saw Scott standing inside of his garage. Smith
stated that Scott then came further into his garage, “stepped” to him, and “shoved his finger
into [Smith’s] chest.” Tr. p. 224. Smith noted that Scott was younger and larger than himself
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We note that the verbal instruction given to by the trial court correctly states “Threats alone” while
the written copy of the trial court’s instruction includes a typographical error and reads “Threats along.” We
further note that the transcript of the verbal instruction also includes the hyphen between the words “self” and
“defense” while the written copy of the trial court’s instruction does not.
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and indicated that he believed that Scott “could have killed [him] and wouldn’t nobody know
it because could [sic] nobody see in [his] garage.” Tr. p. 224. Smith asserted that Scott
threatened to kill him and that he believed that he would be dead if he did not get past Scott
and “out of [the] garage.” Tr. p. 228. Smith reiterated his claim that the entire encounter
occurred inside of his garage, stating that Scott was still in the doorway of the garage when
he was hit with the machete. However, contrary to Smith’s claims, the State presented
eyewitness testimony which rebutted Smith’s assertion that the encounter between Scott and
Smith occurred inside Smith’s garage.
During trial, the State offered the eyewitness testimony of Gray-Scott and Officer
Tatum. Both Gray-Scott and Officer Tatum testified that the encounter between Scott and
Smith occurred in the driveway outside of Smith’s garage. Officer Tatum specified that the
encounter occurred approximately ten or fifteen feet away from Smith’s garage. Officer
Tatum also testified that he observed that Scott began to turn away from Smith before Smith
threw the liquid in Scott’s face and struck Scott with the machete.
Both Gray-Scott’s and Officer Tatum’s testimony is sufficient rebut Smith’s claims
that the encounter between he and Scott occurred in Smith’s garage and, accordingly, that he
acted in self-defense in an attempt to get past Scott and out of the garage. The jury, acting as
the trier of fact, was free to believe or disbelieve these accounts of the encounter between
Scott and Smith as it saw fit. See Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004);
McClendon v. State, 671 N.E.2d 486, 488 (Ind. Ct. App. 1996); Moore v. State, 637 N.E.2d
816, 822 (Ind. Ct. App. 1994), trans. denied. The jury’s determination that Smith was guilty
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of the lesser-included offense of Class D felony criminal recklessness clearly indicates that
the jury believed Gray-Scott’s and Officer’s Tatum’s accounts and did not believe Smith’s
account. As such, we conclude that any potential error stemming from the trial court’s
instructions to the jury relating to Smith’s claim of self-defense was, at most, harmless
because Gray-Scott’s and Officer Tatum’s testimony sufficiently rebuts Smith’s self-defense
claim and establishes Smith’s guilt. See Williams, 891 N.E.2d at 630.
The judgment of the trial court is affirmed.
RILEY, J., and ROBB, J., concur.
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