MEMORANDUM DECISION

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

Suzy St. John

Marion County Public Defender

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

George P. Sherman 

Deputy Attorney General 

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

John Hernandez,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

June 17, 2015

Court of Appeals Case No.

49A02-1410-CR-714

Appeal from the Marion Superior 

Court

The Honorable David Hooper, 

Magistrate

Cause No. 49F08-1405-CM-023544

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1410-CR-714 | June 17, 2015 Page 1 of 12
Case Summary

[1] John Hernandez (“Hernandez”) was convicted of Carrying a Handgun Without 

a License, as a Class A misdemeanor.1

 He now appeals.

[2] We affirm.

Issues

[3] Hernandez raises two issues for our review. We restate these as:

I. Whether the trial court abused its discretion as to the admission 

of evidence; and

II. Whether the trial court abused its discretion when it did not 

instruct the jury as to the defense of necessity.

Facts and Procedural History

[4] On May 5, 2014, Hernandez was a passenger in a car driven by his neighbor, 

Oliver Gray (“Gray”). Indianapolis Metropolitan Police Sergeant Charles 

Butler (“Sergeant Butler”) was on patrol that day, and observed that Gray’s 

vehicle did not have a visible license plate. As a result, Sergeant Butler initiated 

a traffic stop. Gray pulled into a parking lot and drove through several spaces 

before stopping the vehicle.

1 Ind. Code § 35-47-2-1(a).

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[5] After stopping the vehicle, Gray admitted to Sergeant Butler that his driving 

privileges had been suspended. Gray was arrested.

[6] Another officer, Todd Wellmann (“Officer Wellmann”), arrived at the scene to 

assist Sergeant Butler. Officer Wellmann approached the passenger side of the 

car where Hernandez was seated and asked Hernandez to get out of the car. 

Hernandez complied and, as he got out of the car, told Officer Wellmann, “I 

have a strap in my pocket.” Tr. at 76. Officer Wellmann understood this to 

mean that Hernandez had a gun in his pocket. Without being asked, 

Hernandez turned around and placed his hands on the car.

[7] When Officer Wellmann asked Hernandez what he had said, Hernandez 

repeated his statement and pushed out his right hip to indicate where the gun 

was located. When asked, Hernandez admitted that he did not have a permit to 

carry a handgun. Hernandez was then arrested.

[8] Officer Wellmann provided Hernandez with Miranda warnings, after which 

Hernandez agreed to continue to answer questions. Hernandez initially told 

Officer Wellmann that he knew the pistol had been on the floor of the car and, 

upon the car being stopped, Hernandez put the gun in his pocket. Officer 

Wellmann remained unsure of the details of Hernandez’s story, and eventually 

Hernandez indicated that Gray owned the gun.

[9] On May 7, 2014, Hernandez was charged with Carrying a Handgun Without a 

License. A jury trial was conducted on September 22, 2014. During the trial, 

Hernandez sought admission into evidence of documentation concerning 

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Gray’s status as a Serious Violent Felon (“SVF”). The trial court ruled this to 

be inadmissible.

[10] Also during the trial, Hernandez testified that he was afraid of Gray because 

Gray had bragged openly about having committed a robbery. Hernandez also 

testified that he took the handgun from Gray because Gray had threatened him, 

and Hernandez did not want to risk Gray harming him because the two were 

neighbors. Based on this testimony, Hernandez proffered proposed jury 

instructions as to the affirmative defenses of duress and necessity. The trial 

court issued the instruction on duress, but did not issue an instruction on 

necessity.

[11] At the conclusion of the trial, the jury found Hernandez guilty as charged. The 

trial court sentenced Hernandez to 365 days imprisonment, with all but four 

days suspended to probation.

[12] This appeal ensued.

Discussion and Decision

Admission of Evidence

[13] We turn first to Hernandez’s contention that the trial court abused its discretion 

in its evidentiary rulings. Our standard of review for such matters is well 

settled. Rulings as to the admissibility of evidence are within the sound 

discretion of the trial court, and we review challenges to evidentiary rulings for 

an abuse of that discretion. Hyser v. State, 996 N.E.2d 443, 448 (Ind. Ct. App. 

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2013). Even where the trial court’s decision was in error, we will not reverse 

the judgment unless the ruling prejudiced the substantive rights of the appellant. 

Id.

[14] Hernandez’s challenge stems from the trial court’s ruling excluding testimony 

and documentation concerning 1) Gray’s SVF status; and 2) testimony 

concerning the bases upon which Gray was arrested, which included Possession 

of a Firearm by a SVP. Hernandez argues that the trial court’s exclusion of this 

evidence infringed upon his constitutional rights to present a complete defense 

to the charge of Carrying a Handgun Without a License, given Hernandez’s 

defensive theory of duress.

[15] A defendant in a criminal case is guaranteed by the United States Constitution 

the right to “‘a meaningful opportunity to present a complete defense.’” Kubsch 

v. State, 784 N.E.2d 905, 924 (Ind. 2003) (quoting Crane v. Kentucky, 476 U.S. 

683, 690 (1986)). Further:

The right to offer the testimony of witnesses, and to compel their 

attendance, if necessary, is in plain terms the right to present a defense, 

the right to present the defendant’s version of the facts as well as the 

prosecution’s to the jury so it may decide where the truth lies. Just as 

an accused has the right to confront the prosecution’s witnesses for the 

purpose of challenging their testimony, he has the right to present his 

own witnesses to establish a defense. This right is a fundamental 

element of due process of law.

Kubsch, 784 N.E.2d at 924 (quoting Washington v. Texas, 388 U.S. 14, 19 

(1967)).

[16] The affirmative defense of duress is defined in our statutes:

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It is a defense that the person who engaged in the prohibited conduct 

was compelled to do so by threat of imminent serious bodily injury to 

himself or another person. With respect to offenses other than 

felonies, it is a defense that the person who engaged in the prohibited 

conduct was compelled to do so by force or threat of force. 

Compulsion under this section exists only if the force, threat, or 

circumstances are such as would render a person of reasonable 

firmness incapable of resisting the pressure.

I.C. § 35-41-3-8(a).

[17] Hernandez contends that Gray’s SVF status and the decision of officers at the 

scene of Hernandez’s and Gray’s arrests to list as the basis for Gray’s arrest 

Possession of a Firearm by an SVF were both relevant to and necessary for 

Hernandez’s defensive theory. “Evidence is relevant if: (a) it has any tendency 

to make a fact more or less probable than it would be without the evidence; and 

(b) the fact is of consequence in determining the action.” Ind. Evidence Rule 

401.2

 Though relevant, evidence may nonetheless be excluded “if its probative 

value is substantially outweighed by a danger of one or more of the following: 

unfair prejudice, confusing the issues, misleading the jury, undue delay, or 

needlessly presenting cumulative evidence.” Evid. R. 403.

[18] Hernandez contends that the SVF-related evidence concerning Gray was 

“exculpatory, unique, and critical” to his defense, Appellant’s Br. at 14, and 

directs us to two cases that he contends are analogous to his own: Hyser, supra, 

and Allen v. State, 813 N.E.2d 349 (Ind. Ct. App. 2004), trans. denied. Our 

2 Hernandez’s brief quotes the definition of relevance from the Indiana Rules of Evidence that were in effect 

prior to January 1, 2014. This error did not affect our review.

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review of the record and of the applicable case law does not bear out 

Hernandez’s characterization of the importance of the SVF-related evidence as 

to Gray.

[19] At trial, evidence was introduced that Gray was arrested at the scene. 

Hernandez testified that he was afraid of Gray because Gray bragged about 

having a prior felony record, and because Gray had threatened him, ordering 

him to take the gun so that Gray would not have to go back to jail. It is against 

this evidentiary background that Hernandez sought to adduce testimony from 

Sergeant Butler concerning Gray’s SVF status and the specific charge leveled 

against Gray. But as Hernandez himself notes, “[t]estimony about Gray’s SVF 

status was not being offered to prove the truth, but to show the reasonableness 

of Hernandez’s fear.... It is of no concern whether Gray was actually SVF.” 

Appellant’s Reply Br. at 2. 

[20] Hernandez’s argument does not, however, establish how he was prejudiced by 

the trial court’s decision to exclude from evidence the specific information 

about Gray having SVF status. Hernandez designates as error the omission of a 

piece of information, Gray’s purported SVF status. Yet Hernandez presented 

no specific evidence that he was aware of Gray’s status at the time of the 

offense, let alone any evidence as to how Gray having SVF status would make 

more credible either Hernandez’s subjective claim of duress or any objective 

evaluation of that claim.

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[21] This differentiates Hernandez’s situation from those of the cases upon which he 

relies, Hyser and Allen. In Hyser, the defendant sought to introduce evidence 

that he had made a child abuse report with respect to another individual, 

Marner, and that Marner in turn threatened Hyser, accused Hyser of 

committing Child Molesting, and influenced an alleged minor victim to testify 

against Hyser. Id. at 448-49. Hyser’s proffered testimony was that “the 

allegations and testimony against him were untrue and fabricated in relation or 

response to the fact that he made a report to DCS” about his concerns over 

Marner’s possible physical abuse of a minor. Id. at 449. That is, Hyser sought 

to adduce a broad set of facts that went not to the reasonableness of a state of 

mind, but to the very reliability of the accusations.

[22] The contrast with Allen is even greater. In Allen, the defendant was convicted of 

murder where, during an offer of proof, a witness, Bethel, presented extensive 

testimony that he and another individual, Crenshaw, had actually committed 

the offense for which Allen was being tried. 813 N.E.2d at 362. Bethel refused 

to testify in any length before the jury, however, and also refused to testify at a 

deposition, the transcript of which could be presented to the jury. Id. The court 

refused to permit the jury to have access to any of Bethel’s testimony from the 

offer of proof and struck all of the limited testimony Bethel had presented 

before the jury. Id. at 362-63. On appeal, this Court concluded that Allen “had 

the right to present evidence that Crenshaw was involved in the commission of 

the crimes,” and the trial court’s exclusion of Bethel’s testimony “impinged on 

Allen’s right to present a complete defense.” Id. at 363.

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[23] In Hyser and Allen, the defendants sought to adduce evidence in the form of 

testimony that was either actually exculpatory or that greatly undermined the 

credibility of accusing witnesses. The exclusion of significant portions of 

testimony from witnesses worked to impede Hyser’s and Allen’s defenses; here, 

Hernandez presented substantive testimony concerning his reasons for being 

afraid of Gray. Hyser and Allen are, then, inapposite.

[24] We accordingly conclude that Hernandez has failed to establish that the trial 

court’s exclusion of the issue of Gray’s SVF status and of the charges against 

Gray prejudiced any of Hernandez’s substantial rights to present a defense of 

duress.

Instruction as to Necessity Defense

[25] We turn now to Hernandez’s second issue, whether the trial court abused its 

discretion when it denied Hernandez’s proffered jury instruction concerning the 

affirmative defense of necessity. We review a trial court’s instruction of the jury 

for an abuse of discretion. Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010). 

We look to 1) whether the defendant’s tendered instructions correctly state the 

law; 2) whether the there is evidence in the record to support giving the 

instruction; and 3) whether the substance of the proffered instruction is covered 

by other instructions. Id. We will reverse a conviction only where the appellant 

demonstrates that the error in instruction prejudiced his substantial rights. Id.

[26] The affirmative defense of necessity derives from the common law. Toops v. 

State, 643 N.E.2d 387, 389 (Ind. Ct. App. 1994). As adopted in Indiana, there 

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is a six-part test for determining whether otherwise criminal conduct is excused 

as a result of necessity:

(1) the act charged as criminal must have been done to prevent a 

significant evil; (2) there must have been no adequate alternative to the 

commission of the act; (3) the harm caused by the act must not be 

disproportionate to the harm avoided; (4) the accused must entertain a 

good-faith belief that his act was necessary to prevent greater harm; (5) 

such belief must be objectively reasonable under all the circumstances; 

and (6) the accused must not have substantially contributed to the 

creation of the emergency. In the event of retrial on remand the 

foregoing elements should be incorporated into any tendered 

instruction on the defense of necessity.

[27] Patton v. State, 760 N.E.2d 672, 675 (Ind. Ct. App. 2002) (citing Toops, 643 

N.E.2d at 390). As this Court observed in Toops:

Although the confines of the necessity defense vary from jurisdiction 

to jurisdiction, the central element involves the emergency nature of 

the situation. That is, under the force of extreme circumstances, 

conduct that would otherwise constitute a crime is justifiable and not 

criminal because of the greater harm which the illegal act seeks to 

prevent. 

Toops, 643 N.E.2d at 389.

[28] Hernandez argues that there was evidence presented at trial to support giving 

his proffered instruction as to necessity, and that the trial court’s failure to issue 

the instruction was reversible error. At trial, Hernandez testified that Gray 

pulled up alongside him as Hernandez was walking to purchase beer, and that 

Gray badgered him until finally Hernandez got in the car. Hernandez testified 

that police pulled the car over shortly afterward and that Gray did not stop 

immediately, because Gray was carrying a gun and would have gone to jail if 

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found with the gun. According to Hernandez, Gray told Hernandez to take the 

gun “or else,” Tr. at 100, from which Hernandez concluded that Gray was 

threatening to shoot him if he did not take the gun. At some point, the gun 

ended up in Hernandez’s lap. Hernandez took the gun and put it in his pocket.

[29] We cannot agree with Hernandez’s contention that he produced evidence as to 

each of the six elements of the necessity defense. While Hernandez testified at 

trial that he was afraid of Gray because the two were neighbors, an 

unparticularized fear of reprisal does not constitute the type of emergency 

contemplated by a defense of necessity. See, e.g., Patton, 760 N.E.2d at 676-77 

(reversing for failure to instruct on necessity where the defendant argued that he 

had no alternative but to retrieve a gun where a street vendor was “savagely 

beating” the defendant’s brother); Toops, 643 N.E.2d at 387 (reversing for 

failure to instruct the jury on necessity where the defendant, who was 

intoxicated, grabbed the wheel of a car and drove after the vehicle’s driver 

“panicked at the sight of police and dove into the back seat”). Nor was 

Hernandez’s subjective belief that he had to retain the handgun after Gray had 

been removed from the vehicle “objectively reasonable under all the 

circumstances.” Patton, 760 N.E.2d at 675. As the State notes, Hernandez 

could easily have slipped the gun out of his pocket and onto the floor and 

informed Officer Wellmann of the gun’s presence.

[30] Accordingly, we find no abuse of discretion in the trial court’s decision not to 

issue Hernandez’s proffered instruction as to necessity.

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Conclusion

[31] Hernandez has failed to establish that he was prejudiced by the trial court’s 

exclusion of Gray’s purported SVF status and the stated reasons for his arrest, 

assuming arguendo the relevance of that information. Hernandez did not 

present evidence at trial sufficient to support giving an instruction to the jury 

concerning the defense of necessity.

[32] Affirmed.

Riley, J., and Barnes, J., concur.

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