IN THE
Court of Appeals of Indiana Jerry D. McBride, FILED Appellant-Defendant May 12 2025, 8:51 am
CLERK Indiana Supreme Court Court of Appeals v. and Tax Court
State of Indiana, Appellee-Plaintiff
May 12, 2025 Court of Appeals Case No. 24A-CR-2213 Appeal from the Elkhart Superior Court The Honorable Elizabeth A. Bellin, Judge Trial Court Cause No. 20D04-2305-CM-917
Opinion by Judge Foley Judges Bailey and Bradford concur.
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 1 of 15 Foley, Judge.
[1] Following a jury trial, Jerry D. McBride (“McBride”) was convicted of Class A
misdemeanor invasion of privacy for violating a protective order prohibiting
him from communicating with a next-door neighbor. 1 McBride now appeals.
We address the following restated issues:
I. Whether, by failing to make an offer of proof, McBride failed to
preserve his challenge to the trial court’s ruling on a motion in limine,
where the preliminary ruling excluded evidence about the underlying
dispute that led to the issuance of the protective order; and
II. Whether the trial court erred in declining to instruct the jury on the
defense of property, which is a legal justification for an otherwise
criminal act.
[2] Concluding that McBride failed to preserve the claim of evidentiary error, but
that the trial court committed reversible error in declining to give a pattern jury
instruction on the defense of property, we reverse and remand for a new trial. 2
Facts and Procedural History [3] On May 22, 2023, the State charged McBride with Class A misdemeanor
invasion of privacy, alleging McBride knowingly violated a protective order
1 Ind. Code § 35-46-1-15.1(a)(1). 2 In light of our disposition, to the extent McBride presents additional issues, we do not address them.
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 2 of 15 issued under Indiana Code chapter 34-26-5 to protect Stephen Skelton
(“Skelton”). McBride and Skelton live next door to one another, with a fence
that divides their properties. McBride has claimed ownership of the fence.
[4] McBride requested a jury trial. Ahead of trial, the State filed a motion in limine
to exclude “[a]ny evidence regarding the property dispute relating to [McBride]
and [Skelton],” i.e., “the protected party of the protect[ive] order.” Appellant’s
App. Vol. 2 p. 63. The State asserted this evidence would confuse the jury, was
irrelevant to the charged offense, and might open the door to character evidence
under Evidence Rule 404(b). The trial court took the motion under advisement.
[5] A jury trial began on August 1, 2024. During voir dire, defense counsel referred
to a property dispute between McBride and Skelton, at which point the State
objected. At that point, the trial court preliminarily granted the State’s motion
in limine, noting it would revisit the issue based on the evidence presented at
trial. During the ensuing jury trial, the State presented evidence indicating that
McBride was subject to a protective order prohibiting him from “harassing,
annoying, telephoning, contacting, or directly or indirectly communicating
with” Skelton. Tr. Vol. II pp. 73–74; Ex. Vol. II p. 5. The protective order was
issued on July 1, 2021, and effective until July 1, 2023. The State presented
evidence that, on April 26, 2023—about two months before the protective order
expired—Skelton was in his backyard working on his chicken coop. As Skelton
rehung netting for the chicken coop, McBride repeatedly yelled “hey” to get
Skelton’s attention. Tr. Vol. II pp. 60–61. Skelton initially ignored McBride,
who was yelling from his back deck about sixty yards away from Skelton.
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 3 of 15 McBride escalated to using vulgarities, telling Skelton he was going to “cut
down all those f*cking trees” and “tear out all that f*cking chicken net.” Id. at
61. McBride then told Skelton he could “suck [his] d*ck, motherf*cker” while
“throw[ing] his head forward, grab[bing] his crotch, and . . . shaking [part of his
body] at [Skelton].” Id. Skelton told McBride he should not be talking to him.
McBride replied: “I don’t care.” Id. Skelton contacted law enforcement, who
confirmed there was a valid protective order prohibiting McBride from
communicating with Skelton. McBride later spoke with law enforcement about
the incident and acknowledged that he spoke with Skelton. At the end of a
phone conversation, McBride told law enforcement: “[W]hen that protect[ive]
order is over, [Skelton] is open game[.]” Id. at 102.
[6] After the State rested, McBride asked the trial court to revisit its ruling on the
State’s motion in limine, asserting that there had been testimony indicating
“there was a property dispute at the crux of the issue” and “there was no
objection made.” Id. at 84. The State argued the testimony was given “after a
question that [the] defense made, not . . . [the State]” and that “the question of
why . . . the protect[ive] order [was] issued ha[d] some relevancy to it,” but
there was no indication that additional evidence about a property dispute
“would be relevant in th[e] proceeding.” Id. The trial court declined to revisit
its ruling, but noted that if McBride felt the court “need[ed] to readdress th[e]
matter,” the court “most certainly w[ould] entertain that” and “give [McBride]
an opportunity to either make an offer to prove or to argue that [the] evidence
regarding the property dispute and specific acts . . . would be relevant . . . to
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 4 of 15 prove or disprove or support [his] defense[.]” Id. The court added: “As the
evidence continues to go through, . . . just approach and we can address [the
issue] at that time.” Id. at 85. McBride then presented his witnesses, ultimately
making no offer of proof.
[7] In presenting his defense, McBride testified and called his wife as a witness.
Their version of events was that Skelton was “attaching his chicken stuff to
[their] fence.” Id. at 87. They said McBride politely asked Skelton to not attach
things to their fence, at which point Skelton responded with vulgar language
and informed McBride that he was not “supposed to f*cking talk to [him].” Id.
at 91. McBride testified that he calmly spoke with Skelton only to prevent
damage to his fence and that he immediately went inside at his wife’s behest.
[8] McBride asked the trial court to instruct the jury on the right to defend his
personal property, specifically referring to (1) the defense of necessity, (2) the
defense of property, and (3) the defense of dwelling. See id. at 105. McBride
argued the defenses applied because there was evidence of a “property line
dispute” and “any encroachment”—e.g., “attaching something to the fence”—
“would be a trespass or an unlawful entry[.]” Id. at 109. The trial court
regarded McBride’s request as a request for pattern jury instructions. 3 See
Appellant’s App. Vol. 2 p. 105. The State argued McBride was not entitled to
jury instructions on the defense of property or the defense of dwelling—which
3 The three defenses are addressed in separate pattern jury instructions. See Ind. Pattern Criminal Jury Instructions 10.0400 (defense of dwelling), 10.0500 (defense of property), 10.2100 (defense of necessity).
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 5 of 15 are codified in the Indiana self-defense statute—because those defenses only
apply to the use of force. According to the State, the record did not support
giving the requested instructions because the evidence reflected that McBride
engaged in verbal communications alone. The trial court agreed to instruct the
jury on the necessity defense. However, it found the other defenses inapplicable
under the circumstances. In rejecting the defense of property and the defense of
dwelling instructions, the trial court began by noting: “Indiana court[s] have
made pretty clear that a claim of defense of property is analogous to a self-
defense claim[,] and so the standards for self-defense would apply in this
instance.” Tr. Vol. II p. 109. The trial court added: “As we all know, a valid
claim of self-defense is a legal justification for an otherwise criminal act.” Id.
The trial court determined the defenses applied only if the defendant used
physical force, remarking: “Quite frankly, I haven’t heard any evidence
regarding violence or force.” Id. at 110; see also id. at 111 (“[T]here are no facts .
. . to show that force was used[.]”).
[9] The jury found McBride guilty of Class A misdemeanor invasion of privacy.
The trial court later sentenced McBride to 365 days in the Elkhart County Jail,
with the sentence fully suspended to probation. McBride now appeals.
Discussion and Decision
I. Exclusion of Evidence [10] McBride claims the trial court erred in excluding evidence about the scope of
his existing property dispute with Skelton, alleging the improper exclusion of
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 6 of 15 evidence interfered with the right to present a complete defense. McBride
points out that the Sixth and Fourteenth Amendments to the United States
Constitution guaranteed him a meaningful opportunity to present a complete
defense. See Appellant’s Br. p. 10–11 (citing Crane v. Kentucky, 476 U.S. 683,
690 (1986)). McBride directs us to Dixey v. State, where we reversed a
conviction and remanded for a new trial because the defendant was
“prejudiced, insofar as he was deprived of presenting the theory of his defense.”
956 N.E.2d 776, 783 (Ind. Ct. App. 2011), trans. denied. McBride claims he was
prejudiced by the ruling on the State’s motion in limine, asserting that, due to
the ruling, he was prevented from presenting evidence about an ongoing
property dispute with Skelton—a dispute he claims was germane to theories of
his defense. See, e.g., Appellant’s Br. p. 11 (“The ‘why’ of [McBride’s] conduct
[was] crucial to understanding his culpability for the charged offense.”).
[11] A motion in limine is a preliminary ruling that, in itself, does not result in
reversible error. E.g., Hollowell v. State, 753 N.E.2d 612, 615 (Ind. 2001). Thus,
“[i]n order to preserve an error for appellate review, a party must do more than
challenge the ruling on a motion in limine.” Id. Indeed, litigants generally
must comply with Indiana Evidence Rule 103, which governs the preservation
of evidentiary error. Cf. generally id.; Ind. Evid. R. 103(a). This evidence rule
provides that a party may claim error in a ruling to exclude evidence only if (1)
the party “inform[ed] the court of its substance by an offer of proof, unless the
substance was apparent from the context”; and (2) the error “affect[ed] a
substantial right of the party[.]” Evid. R. 103(a). “An offer of proof allows the
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 7 of 15 trial and appellate courts to determine the admissibility of the [evidence], as
well as the potential for prejudice if it is excluded.” Heckard v. State, 118 N.E.3d
823, 828 (Ind. Ct. App. 2019), trans. denied. Thus, as our Supreme Court has
explained: “Absent either a ruling admitting evidence accompanied by a timely
objection or a ruling excluding evidence accompanied by a proper offer of
proof, there is no basis for a claim of error.” Hollowell, 753 N.E.2d at 615–16.
[12] In this case, McBride failed to make an offer of proof regarding the potential
defense evidence he claims was improperly excluded under the trial court’s
ruling on the motion in limine. Moreover, we cannot say the substance of the
evidence was apparent from context. At trial, there was at least some evidence
about a property dispute between McBride and Skelton. For example, the
protective order referred to “damages to shrubs” and noted that “shrubs/trees
[were] beyond repair[.]” Ex. Vol. II p. 6. Further, when McBride testified, he
explained that he was upset with Skelton “[b]ecause he was attaching . . . stuff
to [McBride’s] fence,” adding: “It was bad enough that his arborvitaes were
encroaching on my property[—]that I can’t touch until after this protective
order is over[.] . . . So, now, I gotta [sic] wait to fight to get this stuff off of my
fence. I was trying to protect my property, sir[.]” Tr. Vol. II p. 103. Moreover,
in seeking jury instructions on the defense of property, McBride specifically
referred to evidence of a property dispute, stating: “We have heard several
people state that this was a property line dispute[.]” Id. at 109. Based on the
record, and absent an offer of proof informing the trial court of the substance of
the excluded evidence, we cannot say it was apparent from context what
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 8 of 15 evidence McBride was precluded from presenting as a result of the ruling on the
motion in limine.
[13] In sum, McBride failed to preserve error in the exclusion of the evidence due to
the motion in limine. We therefore do not further address this claim of error.
II. Jury Instructions [14] McBride argues the trial court erred in refusing to instruct the jury on the right
to defend property. “The manner of instructing a jury lies largely within the
discretion of the trial court and we will reverse only for an abuse of discretion.”
Carter v. State, 31 N.E.3d 17, 25 (Ind. Ct. App. 2015), trans. denied. The trial
court abuses its discretion if its decision is clearly against the logic and effect of
the facts and circumstances. Fansler v. State, 100 N.E.3d 250, 253 (Ind. 2018).
In reviewing whether the trial court should have given a proposed jury
instruction, we look to whether (1) the instruction correctly stated the law, (2)
there was evidence to support giving the instruction, and (3) the substance of
the instruction was covered by other instructions. See, e.g., McCowan v. State, 27
N.E.3d 760, 763–64 (Ind. 2015). If the trial court improperly declined to
instruct the jury on an applicable defense, the error is not harmless. Hernandez
v. State, 45 N.E.3d 373, 378 (Ind. 2015). Indeed, our Supreme Court has
likened this scenario to “the giving of an erroneous instruction,” noting that
“[b]oth circumstances present the same risk that the failure to properly instruct
the jury impacted the jury’s ultimate decision.” Id. (reversing where the trial
court improperly declined to instruct the jury on the defense of necessity).
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 9 of 15 [15] At trial, “the party seeking an instruction need only produce some evidence—a
‘scintilla’—of each element of the underlying claim or defense.” Humphrey v.
Tuck, 151 N.E.3d 1203, 1207 (Ind. 2015). In other words, the trial court “may
refuse a jury instruction only when ‘[n]one of the facts’ in the record would
support the legal theory offered in the instruction.” Id. (alteration in original)
(quoting Sims v. Huntington, 393 N.E.2d 135, 139 (Ind. 1979)). Thus, when at
least some evidence supports the requested jury instruction—“even if the
evidence is weak and inconsistent”—the trial court must give the instruction.
Hernandez, 45 N.E.3d at 376 (quoting Howard v. State, 755 N.E.2d 242, 247 (Ind.
Ct. App. 2001)); see also Humphrey, 151 N.E.3d at 1207 (“A jury should hear a
tendered instruction if the record, though ‘meager[,]’ . . . contains ‘any facts or
circumstances’ pertinent to the case.” (quoting Reed v. State, 40 N.E 525, 527
(1895)). To the extent a claim of error in instructing the jury turns on a
question of law, such as the meaning of a statute, our review is de novo. See
Zitzka v. Brogdon, 222 N.E.3d 1025, 1028 (Ind. Ct. App. 2023), trans. denied.
[16] At trial, McBride sought pattern jury instructions on the defense of property.
The defense of property is rooted in Indiana Code section 35-41-3-2, where
subsection (d) codifies the right to defend one’s “dwelling, curtilage, or
occupied motor vehicle” and subsection (e) codifies the right to defend
“property other than a dwelling, curtilage, or an occupied motor vehicle[.]”
Under both statutory subsections, the defense applies only if the force was
reasonable. See Ind. Code § 35-41-3-2(d), (e). Specifically, subsection (d)
provides that “[a] person is justified in using reasonable force, including deadly
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 10 of 15 force, against any other person” and “does not have a duty to retreat” if the
person “reasonably believes that the force is necessary to prevent or terminate
the other person’s unlawful entry of or attack on the person’s dwelling,
curtilage, or occupied motor vehicle.” I.C. § 35-41-3-2(d). Subsection (e)
applies to “other” types of property, specifying that “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[.]” I.C. § 35-41-3-2(e). The Indiana Pattern Criminal Jury
Instructions accurately reflect these statutory rights, with Instruction 10.0400
corresponding to subsection (d) and Instruction 10.0500 to subsection (e).
[17] Before addressing the merits, we turn to the State’s contention that McBride
“waived any review of the trial court’s refusal to give his proposed instruction”
by allegedly failing to comply with portions of the Indiana Rules of Appellate
Procedure. Appellees’ Br. p. 15. The State directs us to Appellate Rule
46(A)(8)(e), which provides as follows: “When error is predicated on the giving
or refusing of any instruction, the instruction shall be set out verbatim in the
argument section of the brief with the verbatim objections, if any, made
thereto.” The State also directs us to Appellate Rule 50(A)(2)(e), which
specifies that whenever a claim of error “is predicated on the . . . refusing of [a
jury] instruction,” the appellant’s appendix must include “any instruction not
included in [their] brief under Rule 46(A)(8)(e)[.]” Regarding waiver, we must
be mindful of our Supreme Court’s preference to resolve cases on the merits
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 11 of 15 instead of on procedural grounds like waiver. See Cardosi v. State, 128 N.E.3d
1277, 1284 n.3 (Ind. 2019) (reaching the merits, despite noncompliance with the
Appellate Rules, where the procedural issue did not impede review). In any
case, here, McBride disputes waiver, pointing out that his brief included one
pattern instruction, Indiana Pattern Criminal Jury Instruction 10.0500, which
was the catchall instruction under subsection (e) of the statute. See Appellant’s
Br. pp. 7–8. We also note that the appendix contained the final instructions.
See Appellant’s App. Vol. 2 pp. 84–102. Under the circumstances, we disagree
with the State’s contention that McBride waived the jury instruction claim. 4
[18] Turning to the merits, the State argues there was no evidence to support a
defense of property instruction because “the evidence did not demonstrate a use
of force[.]” Appellee’s Br. p. 16. We take the State’s position to be that, had
McBride punched Skelton and been charged with both battery and invasion of
privacy, the defense of property would have been available, but the defense was
not available here because McBride only yelled at Skelton and was therefore
only charged with invasion of privacy. We note, however, that in codifying
rights of self-defense, the defense of property, and the defense of others, Indiana
4 In briefing, McBride does not consistently distinguish between (1) defense of property under subsection (d) with its corresponding pattern jury instruction and (2) defense of property under subsection (e) with its corresponding pattern jury instruction. See Appellant’s Br. pp. 7–8 (providing the pattern jury instruction corresponding to subsection (e)), 11 (referring generally to a jury instruction “concerning Use of Force to Protect Property”), 12 (quoting subsection (d)). In any case, although the State claims waiver based on the contents of McBride’s appellate filings, the State ultimately does not distinguish between the defenses, instead at one point broadly focusing on whether the trial court “properly declined [the] proposed jury instructions on defense of property.” Appellee’s Br. p. 2. We therefore do not further address the statutory distinction.
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 12 of 15 Code section 35-41-3-2 provides a legal justification for conduct that would
otherwise be a criminal act. Cf. Geljack v. State, 671 N.E.2d 163, 165 (Ind. Ct.
App. 1996) (discussing the respective burdens of the parties as to “affirmative
defenses that justify or excuse conduct which would otherwise be criminal”).
Indeed, as commentators have explained, “a justification defense is one that
defines conduct ‘otherwise criminal, which under the circumstances is socially
acceptable and which deserves neither criminal liability nor even censure.’” 2
Wayne R. LaFave, Subst. Crim. L. § 9.1(a)(3) (3d ed.), Westlaw (database
updated Oct. 2024) (quoting Peter D. W. Heberling, Note, Justification: The
Impact of the Model Penal Code on Statutory Reform, 75 Colum. L. Rev. 914, 916
(1975)). The essence of this type of defense is a triggering condition, i.e., “the
circumstances that must exist before the defendant can be deemed to have been
eligible to act under a particular justification[.]” Id. “Triggering conditions . . .
typically consist of an event putting at risk some legally-protected interest.” Id.
[19] Under the Indiana self-defense statute, a person is generally “justified in using
reasonable force” if the person reasonably believes it is necessary to use that
force to terminate another person’s trespass. I.C. § 35-41-3-2(d), (e). And it is
not as though our legislature limited the meaning of “force” to refer only to
physical force. Our task is to give statutory language its “plain, ordinary, and
usual meaning, consulting English language dictionaries when helpful in
determining that meaning.” Moriarity v. Ind. Dep’t of Nat. Res., 113 N.E.3d 614,
621 (Ind. 2019). The Merriam-Webster dictionary provides several definitions
for force, among them: (1) “strength or energy exerted or brought to bear[,]
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 13 of 15 cause of motion or change[,] active power”; (2) “moral or mental strength”; and
(3) “capacity to persuade or convince[.]” Force, Merriam-Webster Online
Dictionary, https://www.merriam-webster.com/dictionary/force
[https://perma.cc/3DCH-BVBA]. Similarly, in defining “force,” Webster’s
New International Dictionary specifically refers to both “physical strength or
vigor” and “moral or mental strength[.]” Webster’s New Int’l Dictionary 887
(3rd ed. 1976). Thus, based on the foregoing, we disagree with the State that
the justification defense at issue, which provides a legal justification for an
otherwise-criminal act, applies only if the defendant applied physical force.
[20] Next, the State challenges whether McBride could reasonably believe the use of
force was necessary. The State argues that “McBride failed to establish a
reasonable fear that Skelton would damage McBride’s property,” claiming that,
“[a]t most, McBride demonstrated that Skelton attached PVC pipe to a fence
that stood on the property line separating the two properties[.]” Appellee’s Br.
p. 17. 5 We note, however, that the defendant is entitled to a defense instruction
even if there is only a “scintilla” of evidence supporting each element of the
defense. See Humphrey, 151 N.E.3d at 1207. The evidentiary threshold is low
because “it should be left to the province of the jury to determine whether that
evidence is believable or unbelievable.” Hernandez, 45 N.E.3d at 378. Here, we
conclude McBride cleared the low bar to support giving the jury instruction.
5 The State focuses on fear of property damage, but the statute instead focuses on the reasonableness of believing force was necessary to prevent or terminate an unlawful trespass. See I.C. § 35-41-3-2(d), (e).
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 14 of 15 [21] We conclude that the trial court erred in declining to instruct the jury on the
defense of property. Because the State otherwise presented sufficient evidence
that McBride committed invasion of privacy, the proper remedy is to reverse
and remand for a new trial. See Patton v. State, 760 N.E.2d 672, 675 n.5 (Ind.
Ct. App. 2002) (remanding for a new trial due to the failure to give a requested
jury instruction, noting that principles of double jeopardy do not preclude retrial
so long as the State presented sufficient evidence to support the conviction).
[22] Reversed and remanded.
Bailey, J. and Bradford, J., concur.
ATTORNEY FOR APPELLANT Donald R. Shuler Barkes, Kolbus, Rife & Shuler, LLP Goshen, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana
Court of Appeals of Indiana | Opinion 24A-CR-2213 | May 12, 2025 Page 15 of 15