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
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Lyubov Gore Deputy Attorney General Indianapolis,
Larry Ervin appeals his conviction of Level 5 felony criminal
recklessness and Level 6 felony pointing a
firearm. 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.
addition, we address, sua sponte, whether Ervin was
subjected to double jeopardy. We vacate in part and affirm in
and Procedural History
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.
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.)
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.
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.
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.
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
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.
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.
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.
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
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 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 ...