JONES v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] A jury found Dominic Marshon Jones guilty of Class A misdemeanor domestic battery and Class A misdemeanor theft. After Jones admitted to prior convictions for both charges, the trial court entered a judgment of conviction for Level 5 felony domestic battery ¹ and Level 6 felony theft,² and imposed an aggregate sentence of four years, enhanced by an additional consecutive sentence of two years for a habitual offender adjudication. Jones raises three issues: 1) Did the trial court erroneously refuse his proffered jury instruction on self-defense?; 2) Did the State present sufficient evidence beyond a reasonable doubt to sustain his convictions?; and 3) Did the trial court abuse its discretion in sentencing him as a habitual offender when he was never charged as such? We affirm in part, reverse in part, and remand.

Facts and Procedural History

[2] In March 2023, A.R. was in an “off-and-on” relationship with Jones. Tr. Vol. 2 at 224. On the afternoon of March 7, A.R. was spending time at a friend's apartment in LaPorte County, Indiana. During the early evening hours, Jones arrived at the apartment. As the evening progressed, Jones drank alcohol and smoked. Eventually, Jones and A.R. fell asleep on a chair in the living room, while the other visitors at the apartment continued to socialize.

[3] When A.R. and Jones woke up in the early hours of March 8, they went into the kitchen and “[a]bout five, ten minutes later, [A.R.] [came] running out after” Jones. Id. at 195. Entering the living room, A.R. and Jones were “hyped” and “[t]heir voices were loud.” Id. at 197. The argument calmed down “for a minute” and they both sat down in a chair. Id. Jones started drinking, while A.R. got up from the chair to search for her phone and electronic tablet. When A.R. could not find her tablet, the arguing resumed. A.R. called Jones a “cuss word,” Jones “reacted to it, and hit her in her mouth.” Id. at 198.

[4] Jones began to leave the apartment, putting A.R.’s phone, tablet, and a bottle of alcohol in his backpack. As Jones went toward the door, A.R. followed him and called him “a bitch.” Id. at 209. Jones took offense, became belligerent, and struck A.R. in the eye with a closed fist, telling her, “Who's the bitch.” Id. at 202. When A.R. informed him that she was going to call law enforcement, Jones ran out of the apartment and left with A.R.’s belongings. Although Jones later returned the tablet, damaged, he never returned A.R.’s cell phone. The left side of A.R.’s face was “very, very swollen[,] [a]nd her lip was busted.” Id. at 200. Bailey Stevens, one of the apartment visitors who was present during the incident, handed A.R. an ice pack to place over her eye to slow down the swelling. Despite A.R. having changed her mind about involving law enforcement, Stevens called 911 because she witnessed “domestic violence” and “wasn't gonna let that go.” Tr. Vol. 2 at 194.

[5] The State charged Jones with domestic battery, two counts of theft—the State dismissed one count prior to trial—and interference with reporting a crime. While the case was pending, Jones made several jailhouse calls to A.R. In these calls, Jones begged A.R., “Please don't go to court.” Tr. Vol. 3 at 22. He assured her that she did not have to attend and could “plead the Fifth.” Id. at 23.

[6] A jury trial began on August 28, 2023. On cross-examination of Stevens, Jones’ counsel questioned her about each time Jones hit A.R. and asked, “if you had been standing in [Jones’] shoes, would you have been concerned for your safety?” Tr. Vol. 2 at 219. Stevens replied, “Yes.” Id. During the State's redirect examination, Stevens testified A.R. did not hit Jones but she did see Jones “punch” A.R. Tr. Vol. 2 at 220. Outside the presence of the jury and prior to closing arguments, Jones proffered an instruction on self-defense based on Stevens’ testimony on cross-examination. The State objected, contending the proposed instruction was “an affirmative defense that's never been presented.” Tr. Vol. 3 at 31. Finding Jones had not filed a motion for self-defense and no evidence of self-defense was presented, the trial court denied the proffered instruction.

[7] The jury found Jones guilty of domestic battery and theft, but not guilty of interference with reporting a crime. Jones admitted to prior convictions for both domestic battery and theft, and the trial court entered judgment of conviction for Level 5 felony domestic battery and Level 6 felony theft. During the sentencing hearing, the trial court noted Jones’ felony convictions. When the trial court inquired if he had been convicted of “the habitual, as well[,]” the State replied affirmatively. Tr. Vol. 3 at 66. The trial court sentenced Jones to serve concurrent terms of four years for domestic battery and two years for theft, with “two (2) additional years on Habitual Offender Enhancement consecutive to sentence imposed under Count I and II.” Appellant's App. Vol 2 at 184.

Discussion and Decision

The trial court did not erroneously refuse to give Jones’ proposed jury instruction on self-defense.

[8] Jones contends the trial court erred when it refused to give the jury his proposed instruction on self-defense. The manner of instructing a jury lies largely within the discretion of the trial court. Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). We review a trial court's decision to give or refuse a jury instruction for an abuse of discretion. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). When evaluating a tendered jury instruction on appeal, we look to whether: 1) the tendered instruction correctly states the law, 2) evidence in the record supports giving the instruction, and 3) other instructions given cover the substance of the tendered instruction. Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010). Instructional errors are harmless where a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise. Crawford v. State, 550 N.E.2d 759, 762 (Ind. 1990). Therefore, we will reverse a conviction only if the appellant demonstrates the error prejudiced his substantial rights. Batchelor v. State, 119 N.E.3d 550, 554 (Ind. 2019).

[9] Jones first raised the affirmative defense and proffered a pattern jury instruction on self-defense after the conclusion of evidence and before closing arguments. The trial court determined there had “been no evidence of self-defense” and, in any case, Jones could not introduce the defense “this late in the game.” Tr. Vol. 3 at 30–31. On appeal, Jones argues he was entitled to the instruction because (1) it was a correct statement of law, (2) there was evidence in the record to support giving the instruction, and (3) no other instruction covered self-defense.

[10] Self-defense is a valid justification for an otherwise criminal act. I.C. § 35-41-3-2(c) (2019). A person is justified in using reasonable force against any other person to protect himself from what he reasonably believes to be the imminent use of unlawful force. Id. Whether a criminal defendant acted in self-defense is generally a question of fact for the jury. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999). A defendant is entitled to have the jury instructed on any theory or defense which has some foundation in the evidence. Hernandez, 45 N.E.3d at 376. We apply this rule even if the evidence is weak and inconsistent, but only so long as the evidence presented at trial has some probative value to support it. Id.

[11] To support the tendered self-defense instruction, Jones notes A.R. was agitated, yelling, and moving her hands before he struck A.R. Jones also points to Stevens’ testimony on cross-examination that, if she were standing in Jones’ shoes, she would have been concerned for her own safety because of A.R.’s behavior.

[12] The facts before the trial court were that after A.R. insulted Jones, Jones took offense and “reacted to it” by hitting her in the face. Tr. Vol. 2 at 198. Later A.R. called Jones “a bitch,” and Jones responded, “Who's the bitch” and punched her in the eye. Id. at 209, 202. Evidence shows Jones was reacting to A.R.’s insults; no evidence shows Jones struck A.R. in response to an imminent battery. Stevens testified A.R. was angry and waving her arms during the argument, but these facts do not show Jones had a reasonable belief A.R. imminently intended to batter him. See Howard v. State, 755 N.E.2d 242, 248 (Ind. Ct. App. 2001) (holding there was no basis for a self-defense instruction where (1) the victim slapped the defendant in the face then walked away before the defendant's “temper then hit [him]” and he struck the victim, and (2) the defendant “offered no testimony that he was in fear of bodily harm” when he struck the victim). Nor does Stevens’ subjective speculation she would have been concerned about her safety if in Jones’ shoes alone justify a self-defense instruction. See Washington v. State, 997 N.E.2d 342, 349 (Ind. 2013) (noting the defendant must subjectively believe force was necessary to protect himself from imminent use of force and his belief must be one a reasonable person would have held). The trial court did not abuse its discretion in refusing to instruct the jury on self-defense.

The State presented sufficient evidence to support Jones’ convictions.

[13] Next, Jones contends the State failed to present sufficient evidence beyond a reasonable doubt to support his convictions. A sufficiency-of-the-evidence claim warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

[14] On appeal, Jones contends there “was insufficient evidence to convict him because he acted in self-defense.” Appellant's Br. at 17. Besides reiterating the statements of A.R. and Stevens, Jones fails to cite to any authority or to develop a legal theory to support his conclusory statement. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning.”). Although Jones may have waived his claim, “whenever possible, we prefer to resolve cases on the merits instead of on procedural grounds like waiver.” Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015) (internal quotations omitted).

[15] To convict Jones of Level 5 felony domestic battery, the State had to establish Jones knowingly or intentionally touched A.R., a family or household member, in a rude, insolent, or angry manner and, at the time of the offense, Jones had a previous conviction for a battery offense or strangulation against A.R. See I.C. § 35-42-2-1.3(a)(1) & (c)(4). At trial, A.R. testified that she was in an off-and-on relationship with Jones at the time of the incident. She told the jury Jones hit her twice in the face with his fist, which resulted in facial swelling, a black eye, and pain. See Impson v. State, 721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000) (“Any touching, however slight, may constitute battery.”). A.R.’s testimony is supported by Stevens, who elaborated that she called 911 after seeing Jones hit A.R. in the mouth and the eye with a closed fist. The jury also heard Jones’ jailhouse calls to A.R., in which he asked A.R. not to go to court. Mayes v. State, 467 N.E.2d 1189, 1194 (Ind. 1984) (evidence of a defendant's attempts to influence witness testimony is relevant to revealing “consciousness of guilt”). After the jury found him guilty of the base offense, Jones admitted to a prior conviction for strangulation against A.R.

[16] Turning to Jones’ theft conviction, the State had to establish Jones knowingly or intentionally exerted unauthorized control over A.R.’s phone and/or tablet, with intent to deprive A.R. of any part of the property's value or use and, at the time of the offense, Jones had a prior unrelated conviction for theft. See I.C. § 35-43-4-2(a)(1)(C). Both A.R. and Stevens testified Jones took A.R.’s phone and tablet, with Stevens confirming that Jones took the electronics without A.R.’s permission. Jones later returned A.R.’s tablet in damaged condition, but he never returned her phone. Similar to the domestic battery conviction, Jones admitted to a prior unrelated conviction for theft after the jury found him guilty of the base offense.

[17] The State presented sufficient evidence of probative value to establish beyond a reasonable doubt Jones committed domestic battery as a Level 5 felony and theft as a Level 6 felony.

Jones’ habitual offender enhancement must be vacated.

[18] In addition to sentencing Jones for domestic battery and theft, the trial court sentenced him as a habitual offender.³ The State concedes Jones was never charged with a separate habitual offender enhancement as the statute requires. See I.C. § 35-50-2-8 (“The state may seek to have a person sentenced as a habitual offender for a felony by alleging, on one (1) or more pages separate from the rest of the charging instrument, that the person has accumulated the required number of prior unrelated felony convictions[.]”); see also Erickson v. State, 438 N.E.2d 269, 271 (Ind. 1982) (“A defendant in a criminal trial is entitled to be informed specifically of the crime or crimes with which he is charged so that he may be able to intelligently prepare a defense.”) In the absence of an information alleging Jones is a habitual offender, Jones could not be adjudicated and sentenced as a habitual offender. We remand to the trial court to vacate Jones’ habitual offender sentence enhancement and enter a new order sentencing Jones to concurrent terms of four years for domestic battery and two years for theft.

Conclusion

[19] Because there was no evidence in the record to support self-defense, the trial court did not erroneously refuse to give Jones’ proffered jury instruction. Also, the State presented sufficient evidence to support Jones’ convictions. However, we reverse Jones’ habitual offender enhancement and remand to the trial court to vacate the enhancement.

[20] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Ind. Code § 35-42-2-1.3(a)(1) & (c)(4) (2021).

2.   I.C. § 35-43-4-2(a)(1)(C) (2022).

3.   The trial court imposed a separate, independent sentence for the habitual offender adjudication. “A habitual offender finding does not constitute a separate crime nor result in a separate sentence, but rather results in a sentence enhancement imposed upon the conviction of a subsequent felony.” Greer v. State, 680 N.E.2d 526, 527 (Ind. 1997). “In the event of simultaneous multiple felony convictions and a finding of habitual offender status, trial courts must impose the resulting penalty enhancement upon only one of the convictions and must specify the conviction to be so enhanced.” Id.

Kenworthy, Judge.

Tavitas, J., and Felix, J., concur.