Court of Appeals of Indiana | Memorandum Decision 18A02-1604-CR-816| November 28, 2016 Page 1 of 6

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

Brandon E. Murphy

Public Defender’s Office

Muncie, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

George P. Sherman

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Juan Hernandez,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 28, 2016

Court of Appeals Case No.

18A02-1604-CR-816

Appeal from the Delaware Circuit 

Court

The Honorable Thomas A. 

Cannon, Jr., Judge

Trial Court Cause No.

18C05-1501-MR-1

Najam, Judge.
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Statement of the Case

[1] Juan Hernandez appeals his convictions for voluntary manslaughter, a Level 2 

felony, and battery, as a Level 5 felony, following a jury trial. Hernandez raises 

two issues for our review, which we consolidate and restate as whether the trial 

court abused its discretion when it denied Hernandez the opportunity to present 

certain evidence in support of his claim of self-defense. We affirm.

Facts and Procedural History

[2] In 2013-14, Hernandez and Teresa Hittson were involved in a sexual 

relationship. At the time, Teresa was married to Mark Hittson, although she 

had filed for dissolution of their marriage. In early 2014, however, Teresa 

withdrew her dissolution petition and, instead, later called off her relationship 

with Juan. But Juan continued to interact with Teresa and Mark. Mark and 

Juan did not get along. 

[3] On January 13, 2015, the three were in a vehicle together when Juan and Mark 

got into an altercation. Juan and Mark exited the vehicle, and the two began to 

fight. After Mark had punched him, Juan punched Mark and Mark appeared 

to momentarily lose consciousness before sliding down the side of the vehicle 

and onto the ground. At some point during the altercation, while Juan and 

Mark were in close proximity to each other, Juan removed a large serrated knife

that was on his person and stabbed Mark in the back eleven times. The wounds

almost immediately killed Mark. Juan then went back to the car for a moment, 

but he returned to Mark’s body, which was motionless on the ground, straddled 
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him, and stabbed him another twelve times in the chest. Teresa watched those 

events occur, as did an unrelated witness, Robert Brancecum.

[4] The State charged Juan with murder, a felony; voluntary manslaughter, a Level 

2 felony; and battery, as a Level 5 felony. At his ensuing jury trial, on the third 

day, Hernandez sought to call a previously undisclosed witness, Matthew 

Waller. The trial court excluded Waller from testifying. Had he been called, 

Waller would have testified that he knew that Mark owned a gun and that 

Mark had said he would use that gun on Juan if he had to. Hernandez also 

sought to introduce evidence that, in 2004, Mark had shot a gun in the presence 

of law enforcement officers who had responded to a report of domestic violence 

between him and Teresa. The trial court also excluded that evidence. 

[5] However, the trial court permitted the following evidence to be admitted: 

evidence that Mark and Teresa had a violent relationship, with Mark as the 

initial aggressor; evidence that Teresa had told Juan of some of those incidents

prior to the January 13, 2015, altercation; evidence that Mark often carried a 

firearm on his person; evidence that Mark was generally known to be a violent 

person; and evidence that, in the car on January 13, 2015, immediately before 

the altercation between Juan and Mark, Teresa had told Juan that Mark had a 

gun on him. Thereafter, the jury acquitted Hernandez of murder but found him

guilty of voluntary manslaughter and battery. The trial court entered its 

judgment of conviction and sentence accordingly. This appeal ensued.
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Discussion and Decision

[6] Hernandez contends that the trial court abused its discretion when it prohibited

him from calling Waller and from presenting evidence that Mark shot a firearm 

in the presence of police officers in 2004. A trial court has broad discretion in 

ruling on the admission of evidence, and we review those rulings only for an 

abuse of discretion. See, e.g., Vasquez v. State, 868 N.E.2d 473, 476 (Ind. 2007). 

But even if a trial court errs in the exclusion of evidence, “an improper 

evidentiary ruling does not constitute reversible error if the probable impact on 

the jury does not impact the substantial rights of defendant.”

1

 Cook v. State, 675 

N.E.2d 687, 691 (Ind. 1996). 

[7] Hernandez asserts that the trial court’s exclusion of Waller’s testimony and the 

2004 incident adversely impacted his defense to the jury that he had acted in 

self-defense when he stabbed Mark.2 A valid claim of self-defense is a legal 

justification for an otherwise criminal act. Hollowell v. State, 707 N.E.2d 1014, 

1021 (Ind. Ct. App. 1999). However, the amount of force used to protect 

oneself must be proportionate to the urgency of the situation. Id. “‘Where a 

person has used more force than necessary to repel an attack the right to self-

 

1

 We reject Hernandez’s assertion that any error by the trial court must be reviewed as harmless beyond a 

reasonable doubt under Chapman v. California, 386 U.S. 18 (1967). To be sure, however, applying that 

standard would not change our conclusion.

2

 Hernandez also appears to suggest that the trial court erred in excluding evidence that Mark and Teresa 

had a violent relationship and that Mark had threatened acts of violence against Juan. See Appellant’s Br. at 

15-16. But Hernandez acknowledges that the trial court permitted evidence that supported both of those 

concerns. Insofar as Hernandez complains that the trial court erred when it did not admit cumulative 

evidence, we will not consider that argument. See, e.g., Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind. 2012).
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defense is extinguished, and the ultimate result is that the victim then becomes 

the perpetrator.’” Id. (quoting Geralds v. State, 647 N.E.2d 369, 373 (Ind. Ct. 

App. 1995), trans. denied). Indeed, “‘[w]hen danger of death or great bodily 

harm ceases, the right of self-defense ceases with it.’” Fuentes v. State, 952 

N.E.2d 275, 279 (Ind. Ct. App. 2011) (quoting Schlegel v. State, 238 Ind. 374, 

383, 150 N.E.2d 563, 567 (1958)), trans. denied. Thus, evidence that 

demonstrates the use of violent force beyond that necessary to repel an initial 

aggressor will “undercut a claim of self-defense.” Id. at 279-80 (discussing 

Mayes v. State, 744 N.E.2d 390, 395-96 (Ind. 2002)). 

[8] For example, in Fuentes we held any error in the trial court’s jury instructions on 

self-defense was harmless because the evidence demonstrated that the defendant 

shot the victim after the victim had appeared to surrender during an altercation 

with the defendant. Id. at 280. As we stated, “any threat [the victim] had posed 

to [the defendant] had been neutralized, and [the defendant’s] right to selfdefense therefore ceased.” Id. Accordingly, we concluded that “the jury could 

not have properly found that [the defendant had] acted in self-defense . . . .” Id.

[9] Similarly here, in light of the substantial evidence before it, the jury could not 

have properly found that Hernandez acted in self-defense even if the trial court 

had admitted Hernandez’s proffered evidence. In particular, the evidence 

before the jury demonstrated that Hernandez had stabbed Mark twenty-three 

times in the course of a fist-fight. Hernandez first stabbed Mark eleven times in 

the back. Hernandez then stepped away from Mark momentarily before 

straddling Mark’s motionless body while it laid on the ground and stabbing him 
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another twelve times in the chest. As the State notes, Hernandez’s actions went 

beyond the proportional repelling of an aggressor and “ensur[ed] that Mark 

would have no chance of survival.” Appellee’s Br. at 23. Accordingly, no 

reasonable jury could have concluded that Hernandez acted in self-defense, 

even if the trial court had admitted the proffered evidence. Thus, any error in 

the trial court’s decision to exclude that evidence is harmless. We affirm 

Hernandez’s convictions.

[10] Affirmed.

Bailey, J., and May, J., concur.