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Ervin v. State

Court of Appeals of Indiana

November 28, 2018

Larry Ervin, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal from the Marion Superior Court The Honorable Kurt Eisgruber, Judge Trial Court Cause No. 49G01-1702-F6-7818

          ATTORNEY FOR APPELLANT Victoria L. Bailey Valerie K. BootsKevin Wild Marion County Public Defender Agency Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

          MAY, JUDGE.

         [¶1] Larry Ervin appeals his conviction of Level 5 felony criminal recklessness[1] and Level 6 felony pointing a firearm.[2] He presents two issues for review, which we restate as:

1) Whether the State presented sufficient evidence to support his convictions; and
2) Whether the trial court abused its discretion when it denied his proposed jury instructions regarding defense of property and defense of others.

         In addition, we address, sua sponte, whether Ervin was subjected to double jeopardy. We vacate in part and affirm in part.

         Facts and Procedural History[3]

         [¶ 2] On February 26, 2017, Ervin discovered his iPad was missing. Earlier in the day, he had been asked by a neighbor to assist with a car repair. He had last seen his iPad prior to helping his neighbor. Ervin contacted the police and was told someone would come to take a report. While waiting, Ervin used his Find My iPhone application ("App") and located his iPad in the area where he had gone to assist his neighbor. Shortly thereafter, Ervin saw, via the App, that his iPad was moving around Indianapolis. Ervin decided to follow it.

         [¶3] Ervin arrived at the intersection of Sherman and Southeastern in Indianapolis when the App indicated his iPad was at the same intersection. Ervin saw only one other vehicle at the intersection-a black truck that he thought he had seen earlier in the day when he tried to help his neighbor. Ervin stopped his truck in the middle of the intersection and stepped out to attempt to retrieve his property from the person in the black truck. Ervin approached the black truck and shouted for the occupant to "Stop, freeze, stop." (Tr. Vol. II at 75.)

         [¶4] Anthony Hines was driving the black truck. He had the windows rolled up and did not hear Ervin. Hines saw "a big white SUV stop[] in the middle of the intersection, a guy hop[] out of a truck, . . . grabbing for something[.]" (Id. at 57.) Hines had never met Ervin before. Hines then noticed Ervin was pointing a gun at him. Hines did not realize a vehicle was behind him, and he put his truck in reverse and backed into that vehicle-a Kia Sorento. Without stopping, Hines made a "right U-turn[, ]" (id. at 58), and started to drive away. He heard Ervin start firing at him, "like [Ervin] peppered [Hines'] truck." (Id.) Hines executed the U-turn on the shoulder near a gas station. After verifying Ervin was not following him, Hines called 911 and went home. Hines talked to police at his home.

         [¶5] Ervin called 911 again after Hines left the scene. Ervin told the dispatcher he had attempted to shoot the tires of the truck. The dispatcher told Ervin to remain onsite and talk to the responding officer.

         [¶6] Kristin Armour was an eyewitness. Armour had her twelve-year-old daughter in the car with her. The daughter was screaming because of the gun fire. Armour called 911 "as soon as [she] seen [sic] [Ervin] pull out the gun[.]" (Id. at 75.) Armour parked at the gas station to talk to the police.

         [¶7] Anthony McGowan, the driver of the Kia, ducked down in his car when shots were fired. After the shooting stopped, McGowan exited his vehicle to talk to Ervin. McGowan said he "didn't have any fear [of Ervin] because [he] knew [Ervin] wasn't shooting at [him]." (Id. at 86.)

         [¶8] Michael Tedders was at the gas station, with his fifteen-year-old son. He heard "'Stop, stop,' then . . . pop-pop-pop-pop." (Id. at 92.) He and his son hid in their car during the shooting and stayed at the scene to talk to the police.

         [¶9] Indianapolis Metropolitan Police Department ("IMPD") Officer Richard Faulkner, Sr., was dispatched to the scene pursuant to a report of a "disturbance with shots fired." (Id. at 31.) He was only "about five blocks away[, ]" (id. at 33), so he arrived in "[l]ess than a minute" after being dispatched. (Id. at 34.) He saw "several people in the [gas station] parking lot, in the grass area, yelling and waving their hands." (Id.) The people were yelling that Ervin was the shooter and had a gun.

         [¶10] Officer Faulkner located a white truck blocking the intersection with a white male walking toward it. Officer Faulkner pulled his gun and "yelled at [Ervin] to turn around" and show his hands. (Id. at 39.) Ervin leaned into his truck and did not do as he was told. Officer Faulkner had to repeat his order before Ervin complied. Officer Faulkner placed Ervin in handcuffs and read his Miranda rights to him.

         [¶11] Ervin told Officer Faulkner what had occurred, i.e., that his iPad had been stolen, he had been tracking it, he located it at this intersection, and "he was going to initiate a citizen's arrest." (Id. at 42.) Ervin told Officer Faulkner that he had "started firing rounds at [the truck] because he thought he was going to be hit." (Id.)

         [¶12] IMPD Officer Kyle Hoover was sent to talk to Hines. He noted that Hines "was very rattled, very - he was very upset." (Id. at 98.) Officer Hoover noted Hines' truck had three bullet holes in it and had damage to the "rear bumper tailgate area that would be consistent with a fresh vehicle accident." (Id. at 99.) The bullet holes were all on the passenger side of the truck.

         [¶13] The State ultimately charged Ervin with Level 5 felony criminal recklessness and Level 6 felony pointing a firearm. At trial, Ervin requested the trial court give jury instructions for defense ...

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