Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before an y court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : KURT A. YOUNG GREGORY F. ZOELLER Nashville, Indiana Attorney General of Indiana MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

R OBERT O. MORRIS, ) ) Appellant

- Defendant , ) ) vs. ) No. 49A04

- 1211

- CR

- 571 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Mark D. Stoner , Judge Cause No. 49G06

- 1206

- FC

- 42866

June 12, 2013 MEMORANDUM DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Defendant, Robert Morris (Morris), appeals his conviction for Count I, battery, a C lass C felony , Ind. Code § 35

- 42

- 2

- 1(a)(3)

.

We affirm. ISSUE
Mor ris raises one issue on appea l, which we restate as follows: Whether the trial
court committed fundamental error by not instructing the jury on self

- defense.

FACTS AND PROCEDURAL HISTORY On June 23, 2012, thirty

- five year old Morris lived with his mother , Treasa Morris (Trea sa) , on the east side of Indianapolis in Marion County, Indiana. T hat morning, Treasa was cleaning her home, which she normally did on Saturdays. Morris was in a bedroom upstairs when Treasa began cleaning the upstairs bathroom. This bathroom was used b y Morris, and according to Treasa, was “really dirty.” (Transcript p. 49

- 50). As Treasa cleaned the bathroom, she was talking to herself about how dirty the bathroom was and that “she should not have to clean up after a grown [ ] man.” (Tr. p. 50). Mor ris came out of the bedroom, holding a bottle of wine, and said that the bathroom was “not that dirty.” (Tr. p. 50). Treasa told Morris that she was not talking to him, and he responded that he knew “damn well” she was talking to him because nobody
else was there. (Tr. p. 51). Morris became angry and start ed yelling and cu rsing loudly at his mother while still holding the bottle of wine.3

Treasa told Morris that if he did not calm down she would have to ask him to leave her home, and Morris responded tha t he had paid her so he did not have to leave.
Treasa responded to Morris that she was not Keshia, his girlfriend with whom Morris had lived prior to living with Treasa. Morris became angered by Treasa mentioning Keshia, and continued cursing at her, tel ling her, “You’ve got to respect me. You’re going to [ ] respect me. You going to respect me.” (Tr. p p . 52

- 53). Because Treasa became scared, she attempted to go in her daughter’s bedroo m to call a friend to come over. While she was entering the bedroom , Morris hit her in the head and she fell to the ground. As Morris began hitting Treasa, she looked at her hand and two of her fingers appeared broken. She told Morris that her fingers were broken and asked him to stop hitting her, but he continued. Mor ris proceeded to tell Treasa that she needed to apologize for something that had happened to him as a boy

. In an effort to get Morris to stop, she apologized, but he continued hitting her. Morris continually beat his mother and Treasa’s hand and head were hurting

. B lood was gushing from her hand and fingers. Morris told Treasa that he knew she would call the police, that he would get locked up , and that when he got out , “ he was going to return and kill her. ” (Tr. p. 56). Treasa tried assuring him she wo uld not call the police if he would stop the beating. Throughout the entire beating, Morris held the wine bottle in his hand, which resulted in Treasa being covered in wine. After Morris finally stopped and returned to his bedroom, Treasa left her home a nd went to a neighbor’s
house. She told her neighbor, Paula Grays (Grays ) , that her son had hit her, and Grays4

invited Treasa into her home and had her sit down

. However, Treasa fell out of the chair onto the floor and lost consciousness. Grays called t he police. Shortly after, Officers Scott Emminger (Officer Emminger) and Brian Durham from the Indianapolis Metropolitan Police Department arrived and spoke with Treasa about the incident. Treasa told Officer Emminger that Morris had assaulted her. B efo re Treasa was to be transported to the hospital, she asked Officer Emminger if he could retrieve her purse from her home. Both O fficers entered Treasa’s home , where they encountered Morris. They retrie ved Treasa’s purse and arrested Morris. Neither Offi cer had noticed any recent injuries to Morri s as a result of this incident. Treasa spent two days in the hospital. She received ei ght staples in her head, and eventually had to undergo two surgeries on her hands and fingers. She also h ad bruising on her back and leg. On June 26, 2012, the State filed an Information charging Morris with Count I , battery, a C lass C felony, I.C . § 35

- 42

- 2

- 1 ; and Count II, battery, a C lass A misdemeanor, I.C. § 35

- 4

- 2

- 1

. On October 3, 2012, a jury trial was held and at its c onclusion , the jury returned a guilty verdict on both Counts. On October 17, 2012, the trial court conducted a sentencing hearing. Because of double jeopardy concerns, the trial court declined to enter judgment of conviction on Count II, but sentenced Mo rris to four years imprisonment on Count I, battery, a Class C felony. Morris now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION5

Morris contends that the trial court committed fundamental error in not giving an instruc tion on self

- defense. However, Morris acknowledged that he failed to o bject to the instructions given and also failed to tender any additional instructions regarding self

defense. According to Trial Rule 51(C), a defendant who fails to object to an instr uction or fails to tender an instruction a t trial waives any challenge to that instruction on appeal. See also Baker v. State , 948 N.E.2d 1169, 1178 (Ind. 2011)

. In an attempt to circumvent his waiver of the self

- defense instruction, Morris
claims that the lack of instruction regarding self

- defense constituted fundamental error.
However , a s stated by this c ourt:
The fundamental error doctrine is extremely narrow, and applies only when the error constitute [ s ] a blatant violation of basic principles, c reating or potentially creating substantial harm, and the resulting error denies the defendant fundamental due process. Covey v. State , 929 N.E.2d 813, 819 (Ind. Ct. App. 2010). In considering a claim of fundamental error with respect to jury instruct ions, “w e look to the jury instructions as whole to determine if they were wholly adequate.”
Emerson v. State , 952 N.E.2d 832, 838 (Ind. Ct. App. 2011) , trans. denied

. Furthermore, we have explained ,

T he purpose of jury instructions is to inform the ju ry of the law applicable to the facts without misleading the jury and to enable [them] to comprehend the case clearly and arrive at a j ust, fair, and correct verdict. In reviewing a trial cou rt’s decision to give a tendered jury instruction, our court has consider [ed] (1) whether the instruction correctly states the law, (2) is supported by the evidence in the record, and (3) is not covered in substance by other instructions

.6

Id

. The trial court has discretion in instructing the jury , and we will reverse only when the instructions amount to an abuse of discretion. Id

. To constitute an abuse of discretion, the instruction [ s ] given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury

.
For a valid se lf

- defense claim a defendant must show that, he “ is justified in using reasonable force against another person to protect himself from what that person reasonably believes to be the imminent use of unlawful force. ” I.C . § 35

- 41

- 3

- 2(a). Moreover, our supr eme court set forth three factors that a defendant must prove to support his claim for self

- defense: (1) that he was in a place where he had a right to be; (2) that he acted wi thout fault; and (3) that he had a reasonable fear or apprehension of death or great bodily harm. Howard v. State , 755 N.E.2d 242, 247 (Ind. Ct. App. 2001)

. In addition to the aforementioned, a claim for self

- defense encompasses both subjective and objective components. Huls v. State , 971 N.E.2d 739, 745 (Ind. Ct. App. 2012).

The evidence indicates that Morris is a 35

- year old man who had been drink ing at the time of the beating. The evidence also shows that Morris was approximately a foot taller than his mother, and outweighed her by approximately forty pounds. Immediately foll owing the incident, the police observed that there were no recent injuries to Morris. Treasa suffered serious injuries from her encounter with Morris including the need for eight staples in her head and two surgeries on her hands which included placing pi ns and plates in her broken fingers as well as her hands. The amount of force used by Morris on7

his mother far exceeded any possible use of force needed to protect him from his small and elderly mother.
Morris points to the Affidavit for probable c ause as support for his claim that he was entitled to a jury instruction on self

- defense. Specifically, the Affidavit that was entered into e vidence without objection stated , “She attacked me first and I defended myself and that’s all I’m going to say.” (Exh

. p. 11). However, apart from a single self

serving statement by Morris to the Officers , t here was no further mention of self

- defense
at trial. Even during cross - exam ination of his mother, the only questions Morris asked her were if there was anyone else i n the house, whether she was aware that Morris could not walk without crutches, if she asked Morris to leave the house, and if she has ever been convicted of a burglary. There were no questions regarding Treasa attacking Morris or whether Morris needed to reasonably protect himself from imminent bodily harm from his elderly mother.
In sum, because there is no evidence to support the tendering of the instruction, we conclude that the trial court did not abuse its discretion in refusing to give a self

- defe nse instruction

. T hus, the trial court did not err, let alone commit fundamental error by not offering a jury instruction on self

- defense.

CONCLUSION Based on the foregoing, we conclude that the trial court did not commit fundamental error by refusing t o give an instruction on self

- defense to the jury

.8

Affirmed.
BRADFORD, J. and BROWN, J. concur