Opinion
23A-CR-2845
06-12-2024
Jeremy T. Ferrell, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Lisa M. Johnson Brownsburg, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Hancock Superior Court The Honorable Donald J. Davis, Judge Trial Court Cause No. 30D01-2209-F3-001552
ATTORNEY FOR APPELLANT Lisa M. Johnson Brownsburg, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
FELIX, JUDGE.
We heard oral argument in this case on May 29, 2024, at The Rooted School in Indianapolis, Indiana. We thank the students, administration, faculty, and staff of The Rooted School for their hospitality and assistance. We would also like to thank the attorneys for the quality of their written and oral advocacy.
[¶1] Jeremy Ferrell and Kirk Lonas shared a jail cell together. Ferrell and Lonas got into an argument, which resulted in Ferrell punching Lonas in the face. A jury convicted Ferrell of two counts of aggravated battery. Ferrell presents three issues on appeal, which we restate as follows:
1. Whether the trial court abused its discretion by denying Ferrell's request for a self-defense instruction;
2. Whether the trial court committed fundamental error when it failed to answer a question from the jury regarding self-defense; and
3. Whether Ferrell's convictions violate protections against double jeopardy.
[¶2] Finding the first issue dispositive, we reverse and remand for a new trial. Facts and Procedural History
[¶3] On August 24, 2022, Ferrell was in the Hancock County Jail with his cellmates Lonas and James Sachs when Ferrell and Lonas began to argue. The argument ended when Ferrell punched Lonas in the eye, which caused Lonas's right eyeball to rupture then shrink like someone had "popped a balloon." Tr. Vol. II at 173. Doctors were unable to repair or remove the eyeball. Lonas permanently lost sight in that eye. Related to the one punch, the State charged Ferrell with two counts of aggravated battery and alleged habitual offender status.
[¶4] At trial, the cellmates provided different accounts of the incident. Lonas and Sachs claim the argument started because Ferrell asked Lonas for a bag of chips. Lonas told Ferrell that he did not have an extra bag of chips, and Ferrell responded by saying, "[W]hy do you got to be a b**ch." Tr. Vol. II at 166. Ferrell then kicked a bag of chips Lonas had stored under his bunk. According to Lonas, he then got up from his bunk, pressed the emergency button in his cell, and sat down on his bunk. After Lonas sat down, Ferrell punched him in the face. Lonas contends he did not see the punch coming.
[¶5] Ferrell saw the events differently. Ferrell claims that the argument did not start over a bag of chips. Instead, the argument started because Lonas and Sachs were making fun of his physical appearance. Ferrell was severely burned on his chest in 2013, and, as a result of the injuries, Ferrell's "nipples do not line up." Tr. Vol. II at 243. Importantly, Ferrell alleges that he punched Lonas because Lonas had shoved him. Ferrell provided the following testimony about the incident:
Q [_] He pushed you out of the way to get to the button?
A He pushed me the - the when he - he couldn't be heard the first time.
Q Okay. And then he reached for the button again and - and pushed you out of the way?
A Correct.
Q And then what happened?
A I punched him. I just stepped back I deflected with my right and I threw my left it was a jab.
Q You just hit him with your left hand?
A Yes.
Q Right in the eyeball? Straight to the eyeball?
A It was a straight punch I was just stepping back I blocked with my right and I jabbed with my left as a jab.Tr. Vol. II at 245-46.
[¶6] After the close of evidence, Ferrell asked the trial court for a jury instruction on self-defense. Following argument from both parties, the trial court denied Ferrell's request, stating, "[T]here was no testimony in regards to the actual force being used was to protect because of imminent use of unlawful force." Tr. Vol. III at 9.
[¶7] During deliberation, the jury sent the trial court a question asking, "[I]f Lonas pushed and/or violently pushed Ferrell does Ferrell have a right to defend himself?" Tr. Vol. III at 32. The trial court informed the jury that it could not answer the question. The jury found Ferrell guilty as charged. The trial court issued Ferrell a 20-year aggregate sentence to be served in the Indiana Department of Correction. Ferrell now appeals.
Discussion and Decision
[¶8] Ferrell claims the trial court erred in denying his request for a self-defense instruction. "We review a trial court's manner of instructing the jury for an abuse of discretion." Owen v. State, 210 N.E.3d 256, 267 (Ind. 2023) (citing Inman v. State, 4 N.E.3d 190, 201 (Ind. 2014)), reh'g denied (Aug. 17, 2023). In determining whether the trial court abused its discretion in denying a proposed 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.'" Id. at 267-68 (quoting Chambersv. State, 734 N.E.2d 578, 580 (Ind. 2000)). We consider the jury instructions as a whole. Id. at 268.
[¶9] "A defendant in a criminal case is entitled to have the jury instructed on any theory of defense that has some foundation in evidence, even if the evidence is weak and inconsistent." Ervin v. State, 114 N.E.3d 888, 897 (Ind.Ct.App. 2018) (emphasis added) (internal citation omitted) (citing Creager v. State, 737 N.E.2d 771, 777 (Ind.Ct.App. 2000), trans. denied). The relevant portion of Ferrell's requested jury instruction is as follows:
It is an issue whether the Defendant acted in [self-defense] [defense of another person].
A person may use reasonable force against another person to protect (himself/herself from what he/she) or (someone else) from what the Defendant reasonably believes to be the imminent use of unlawful force.Appellant's App. Vol. II at 77 (alterations in original). Here, the trial court determined there was not sufficient evidence in the record to support a selfdefense instruction. Specifically, the trial court noted that there was no testimony that Ferrell punched Lonas to protect himself from imminent force. We cannot agree.
[¶10] A defendant need not specifically testify about his belief of imminent force to establish the subjective component of self-defense. See Ault v. State, 950 N.E.2d 326, 331 (Ind.Ct.App. 2011). In Ault v. State, another panel of this court addressed whether a self-defense instruction was available if a defendant does not testify. Id. at 328-31. This court determined that, even if the defendant does not testify about the event, the facts presented at trial can be sufficient "to support a reasonable inference regarding the subjective component of selfdefense," meaning the jury can infer the defendant's state of mind concerning a perceived threat of force. Id. at 331.
[¶11] The State claims that Ferrell failed to establish the subjective component of selfdefense because there was evidence at trial which is inconsistent with Ferrell's theory of the case. However, the trial court should provide a self-defense instruction even if evidence conflicts with the defendant's theory of self-defense. See Ervin, 114 N.E.3d at 897. "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. Thus, the presence of conflicting evidence did not foreclose the opportunity for an instruction on self-defense. See id.
[¶12] Ferrell testified that he punched Lonas directly while Lonas was in the act of shoving him. Ferrell alleged that, while he and Lonas were face to face, he "deflected" and "blocked" Lonas's shove then he "threw... a jab" and "jabbed" Lonas in the face. Tr. Vol. II at 245-46. We conclude that this testimony was sufficient to establish the reasonable inference that, when he punched Lonas, Ferrell reasonably believed he was protecting himself from imminent force. See Ault, 950 N.E.2d at 331.
[¶13] We also believe that a jury could find that it was reasonable under the circumstances for Ferrell to believe he needed to use force to prevent the imminent use of unlawful force toward him. Finally, although the result of the "jab" was the permanent loss of Lonas' eyesight, which can be argued was an unreasonable amount of force to protect oneself from a push, we continue to believe that a jury should have been allowed to make that judgment call. See Ervin, 114 N.E.3d at 897. Due to our strong preference for a defendant in a criminal case to be entitled to have the jury instructed on any theory of defense that has some foundation in evidence, we believe it was improper to preclude the jury from making these factual determinations. This conclusion is supported by the fact that the jury questioned the trial court regarding selfdefense despite no self-defense instruction being provided.
[¶14] In sum, Ferrell presented sufficient evidence to support an instruction on selfdefense. We conclude that the trial court abused its discretion in denying Ferrell's request for a self-defense instruction. This issue is dispositive; therefore we need not address the remaining issues Ferrell presents on appeal. We reverse and remand for a new trial.
[¶15] Reversed and remanded.
Altice, C.J., and Pyle, J., concur.