MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 28 2016, 8:59 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Gregory F. Zoeller Public Defender’s Office Attorney General of Indiana Muncie, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Juan Hernandez, November 28, 2016 Appellant-Defendant, Court of Appeals Case No. 18A02-1604-CR-816 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Plaintiff. Cannon, Jr., Judge Trial Court Cause No. 18C05-1501-MR-1
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 1 of 6 Statement of the Case [1] Juan Hernandez appeals his convictions for voluntary manslaughter, a Level 2
felony, and battery, as a Level 5 felony, following a jury trial. Hernandez raises
two issues for our review, which we consolidate and restate as whether the trial
court abused its discretion when it denied Hernandez the opportunity to present
certain evidence in support of his claim of self-defense. We affirm.
Facts and Procedural History [2] In 2013-14, Hernandez and Teresa Hittson were involved in a sexual
relationship. At the time, Teresa was married to Mark Hittson, although she
had filed for dissolution of their marriage. In early 2014, however, Teresa
withdrew her dissolution petition and, instead, later called off her relationship
with Juan. But Juan continued to interact with Teresa and Mark. Mark and
Juan did not get along.
[3] On January 13, 2015, the three were in a vehicle together when Juan and Mark
got into an altercation. Juan and Mark exited the vehicle, and the two began to
fight. After Mark had punched him, Juan punched Mark and Mark appeared
to momentarily lose consciousness before sliding down the side of the vehicle
and onto the ground. At some point during the altercation, while Juan and
Mark were in close proximity to each other, Juan removed a large serrated knife
that was on his person and stabbed Mark in the back eleven times. The wounds
almost immediately killed Mark. Juan then went back to the car for a moment,
but he returned to Mark’s body, which was motionless on the ground, straddled
Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 2 of 6 him, and stabbed him another twelve times in the chest. Teresa watched those
events occur, as did an unrelated witness, Robert Brancecum.
[4] The State charged Juan with murder, a felony; voluntary manslaughter, a Level
2 felony; and battery, as a Level 5 felony. At his ensuing jury trial, on the third
day, Hernandez sought to call a previously undisclosed witness, Matthew
Waller. The trial court excluded Waller from testifying. Had he been called,
Waller would have testified that he knew that Mark owned a gun and that
Mark had said he would use that gun on Juan if he had to. Hernandez also
sought to introduce evidence that, in 2004, Mark had shot a gun in the presence
of law enforcement officers who had responded to a report of domestic violence
between him and Teresa. The trial court also excluded that evidence.
[5] However, the trial court permitted the following evidence to be admitted:
evidence that Mark and Teresa had a violent relationship, with Mark as the
initial aggressor; evidence that Teresa had told Juan of some of those incidents
prior to the January 13, 2015, altercation; evidence that Mark often carried a
firearm on his person; evidence that Mark was generally known to be a violent
person; and evidence that, in the car on January 13, 2015, immediately before
the altercation between Juan and Mark, Teresa had told Juan that Mark had a
gun on him. Thereafter, the jury acquitted Hernandez of murder but found him
guilty of voluntary manslaughter and battery. The trial court entered its
judgment of conviction and sentence accordingly. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 3 of 6 Discussion and Decision [6] Hernandez contends that the trial court abused its discretion when it prohibited
him from calling Waller and from presenting evidence that Mark shot a firearm
in the presence of police officers in 2004. A trial court has broad discretion in
ruling on the admission of evidence, and we review those rulings only for an
abuse of discretion. See, e.g., Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007).
But even if a trial court errs in the exclusion of evidence, “an improper
evidentiary ruling does not constitute reversible error if the probable impact on
the jury does not impact the substantial rights of defendant.”1 Cook v. State, 675
N.E.2d 687, 691 (Ind. 1996).
[7] Hernandez asserts that the trial court’s exclusion of Waller’s testimony and the
2004 incident adversely impacted his defense to the jury that he had acted in
self-defense when he stabbed Mark.2 A valid claim of self-defense is a legal
justification for an otherwise criminal act. Hollowell v. State, 707 N.E.2d 1014,
1021 (Ind. Ct. App. 1999). However, the amount of force used to protect
oneself must be proportionate to the urgency of the situation. Id. “‘Where a
person has used more force than necessary to repel an attack the right to self-
1 We reject Hernandez’s assertion that any error by the trial court must be reviewed as harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967). To be sure, however, applying that standard would not change our conclusion. 2 Hernandez also appears to suggest that the trial court erred in excluding evidence that Mark and Teresa had a violent relationship and that Mark had threatened acts of violence against Juan. See Appellant’s Br. at 15-16. But Hernandez acknowledges that the trial court permitted evidence that supported both of those concerns. Insofar as Hernandez complains that the trial court erred when it did not admit cumulative evidence, we will not consider that argument. See, e.g., Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).
Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 4 of 6 defense is extinguished, and the ultimate result is that the victim then becomes
the perpetrator.’” Id. (quoting Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct.
App. 1995), trans. denied). Indeed, “‘[w]hen danger of death or great bodily
harm ceases, the right of self-defense ceases with it.’” Fuentes v. State, 952
N.E.2d 275, 279 (Ind. Ct. App. 2011) (quoting Schlegel v. State, 238 Ind. 374,
383, 150 N.E.2d 563, 567 (1958)), trans. denied. Thus, evidence that
demonstrates the use of violent force beyond that necessary to repel an initial
aggressor will “undercut a claim of self-defense.” Id. at 279-80 (discussing
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Nov 28 2016, 8:59 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brandon E. Murphy Gregory F. Zoeller Public Defender’s Office Attorney General of Indiana Muncie, Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Juan Hernandez, November 28, 2016 Appellant-Defendant, Court of Appeals Case No. 18A02-1604-CR-816 v. Appeal from the Delaware Circuit Court State of Indiana, The Honorable Thomas A. Appellee-Plaintiff. Cannon, Jr., Judge Trial Court Cause No. 18C05-1501-MR-1
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 1 of 6 Statement of the Case [1] Juan Hernandez appeals his convictions for voluntary manslaughter, a Level 2
felony, and battery, as a Level 5 felony, following a jury trial. Hernandez raises
two issues for our review, which we consolidate and restate as whether the trial
court abused its discretion when it denied Hernandez the opportunity to present
certain evidence in support of his claim of self-defense. We affirm.
Facts and Procedural History [2] In 2013-14, Hernandez and Teresa Hittson were involved in a sexual
relationship. At the time, Teresa was married to Mark Hittson, although she
had filed for dissolution of their marriage. In early 2014, however, Teresa
withdrew her dissolution petition and, instead, later called off her relationship
with Juan. But Juan continued to interact with Teresa and Mark. Mark and
Juan did not get along.
[3] On January 13, 2015, the three were in a vehicle together when Juan and Mark
got into an altercation. Juan and Mark exited the vehicle, and the two began to
fight. After Mark had punched him, Juan punched Mark and Mark appeared
to momentarily lose consciousness before sliding down the side of the vehicle
and onto the ground. At some point during the altercation, while Juan and
Mark were in close proximity to each other, Juan removed a large serrated knife
that was on his person and stabbed Mark in the back eleven times. The wounds
almost immediately killed Mark. Juan then went back to the car for a moment,
but he returned to Mark’s body, which was motionless on the ground, straddled
Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 2 of 6 him, and stabbed him another twelve times in the chest. Teresa watched those
events occur, as did an unrelated witness, Robert Brancecum.
[4] The State charged Juan with murder, a felony; voluntary manslaughter, a Level
2 felony; and battery, as a Level 5 felony. At his ensuing jury trial, on the third
day, Hernandez sought to call a previously undisclosed witness, Matthew
Waller. The trial court excluded Waller from testifying. Had he been called,
Waller would have testified that he knew that Mark owned a gun and that
Mark had said he would use that gun on Juan if he had to. Hernandez also
sought to introduce evidence that, in 2004, Mark had shot a gun in the presence
of law enforcement officers who had responded to a report of domestic violence
between him and Teresa. The trial court also excluded that evidence.
[5] However, the trial court permitted the following evidence to be admitted:
evidence that Mark and Teresa had a violent relationship, with Mark as the
initial aggressor; evidence that Teresa had told Juan of some of those incidents
prior to the January 13, 2015, altercation; evidence that Mark often carried a
firearm on his person; evidence that Mark was generally known to be a violent
person; and evidence that, in the car on January 13, 2015, immediately before
the altercation between Juan and Mark, Teresa had told Juan that Mark had a
gun on him. Thereafter, the jury acquitted Hernandez of murder but found him
guilty of voluntary manslaughter and battery. The trial court entered its
judgment of conviction and sentence accordingly. This appeal ensued.
Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 3 of 6 Discussion and Decision [6] Hernandez contends that the trial court abused its discretion when it prohibited
him from calling Waller and from presenting evidence that Mark shot a firearm
in the presence of police officers in 2004. A trial court has broad discretion in
ruling on the admission of evidence, and we review those rulings only for an
abuse of discretion. See, e.g., Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007).
But even if a trial court errs in the exclusion of evidence, “an improper
evidentiary ruling does not constitute reversible error if the probable impact on
the jury does not impact the substantial rights of defendant.”1 Cook v. State, 675
N.E.2d 687, 691 (Ind. 1996).
[7] Hernandez asserts that the trial court’s exclusion of Waller’s testimony and the
2004 incident adversely impacted his defense to the jury that he had acted in
self-defense when he stabbed Mark.2 A valid claim of self-defense is a legal
justification for an otherwise criminal act. Hollowell v. State, 707 N.E.2d 1014,
1021 (Ind. Ct. App. 1999). However, the amount of force used to protect
oneself must be proportionate to the urgency of the situation. Id. “‘Where a
person has used more force than necessary to repel an attack the right to self-
1 We reject Hernandez’s assertion that any error by the trial court must be reviewed as harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18 (1967). To be sure, however, applying that standard would not change our conclusion. 2 Hernandez also appears to suggest that the trial court erred in excluding evidence that Mark and Teresa had a violent relationship and that Mark had threatened acts of violence against Juan. See Appellant’s Br. at 15-16. But Hernandez acknowledges that the trial court permitted evidence that supported both of those concerns. Insofar as Hernandez complains that the trial court erred when it did not admit cumulative evidence, we will not consider that argument. See, e.g., Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).
Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 4 of 6 defense is extinguished, and the ultimate result is that the victim then becomes
the perpetrator.’” Id. (quoting Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct.
App. 1995), trans. denied). Indeed, “‘[w]hen danger of death or great bodily
harm ceases, the right of self-defense ceases with it.’” Fuentes v. State, 952
N.E.2d 275, 279 (Ind. Ct. App. 2011) (quoting Schlegel v. State, 238 Ind. 374,
383, 150 N.E.2d 563, 567 (1958)), trans. denied. Thus, evidence that
demonstrates the use of violent force beyond that necessary to repel an initial
aggressor will “undercut a claim of self-defense.” Id. at 279-80 (discussing
Mayes v. State, 744 N.E.2d 390, 395-96 (Ind. 2002)).
[8] For example, in Fuentes we held any error in the trial court’s jury instructions on
self-defense was harmless because the evidence demonstrated that the defendant
shot the victim after the victim had appeared to surrender during an altercation
with the defendant. Id. at 280. As we stated, “any threat [the victim] had posed
to [the defendant] had been neutralized, and [the defendant’s] right to self-
defense therefore ceased.” Id. Accordingly, we concluded that “the jury could
not have properly found that [the defendant had] acted in self-defense . . . .” Id.
[9] Similarly here, in light of the substantial evidence before it, the jury could not
have properly found that Hernandez acted in self-defense even if the trial court
had admitted Hernandez’s proffered evidence. In particular, the evidence
before the jury demonstrated that Hernandez had stabbed Mark twenty-three
times in the course of a fist-fight. Hernandez first stabbed Mark eleven times in
the back. Hernandez then stepped away from Mark momentarily before
straddling Mark’s motionless body while it laid on the ground and stabbing him
Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 5 of 6 another twelve times in the chest. As the State notes, Hernandez’s actions went
beyond the proportional repelling of an aggressor and “ensur[ed] that Mark
would have no chance of survival.” Appellee’s Br. at 23. Accordingly, no
reasonable jury could have concluded that Hernandez acted in self-defense,
even if the trial court had admitted the proffered evidence. Thus, any error in
the trial court’s decision to exclude that evidence is harmless. We affirm
Hernandez’s convictions.
[10] Affirmed.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 6 of 6