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

• Court: Indiana Court of Appeals
• Decided: June 15, 2015
• Docket: 49A04-1411-CR-538
• Status: Published

Opinion

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.

Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-538 | June 15, 2015 Page 1 of 5 [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).

Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-538 | June 15, 2015 Page 2 of 5 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.

Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-538 | June 15, 2015 Page 3 of 5 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”).

Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-538 | June 15, 2015 Page 4 of 5 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.

Court of Appeals of Indiana | Memorandum Decision 49A04-1411-CR-538 | June 15, 2015 Page 5 of 5