Court of Appeals of Indiana | Opinion 22A-CR-2993 | November 2, 2023 Page 1 of 22

ATTORNEY FOR APPELLANT

Zachary J. Stock

Zachary J. Stock, Attorney at Law, P.C.

Carmel, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Samuel Dayton

Megan M. Smith

Nicole D. Wiggins

Deputy Attorneys General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Marques D. Hardiman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 2, 2023

Court of Appeals Case No.

22A-CR-2993

Appeal from the Hendricks Circuit 

Court

The Honorable Daniel F. Zielinski

Trial Court Cause No.

32C01-2105-MR-1

Opinion by Judge Tavitas

Judges Weissmann and Kenworthy concur.

Tavitas, Judge.
Court of Appeals of Indiana | Opinion 22A-CR-2993 | November 2, 2023 Page 2 of 22

Case Summary

[1] Following a jury trial, Marques Hardiman was convicted of murder, a felony, 

and attempted robbery, a Level 5 felony. Hardiman appeals and claims that: 

(1) the trial court abused its discretion by admitting evidence of text messages 

exchanged between Hardiman and his accomplice regarding a previously 

planned robbery; and (2) the trial court abused its discretion in instructing the 

jury on the availability of the defense of self-defense. We disagree and, 

accordingly, affirm. 

Issues

[2] Hardiman presents two issues for our review: 

I. Whether the trial court abused its discretion by admitting 

evidence under Indiana Evidence Rule 404(b)—text 

messages exchanged between Hardiman and his 

accomplice regarding a previously planned robbery. 

II. Whether the trial court abused its discretion in instructing 

the jury on the availability of the defense of self-defense, 

and, if so, whether it was harmless error. 

Facts

[3] On May 2, 2021, then eighteen-year-old Hardiman sent a text message to his 

friend, Christian Edmon, in which he asked if Edmon could “front” him some 

marijuana, i.e., give Hardiman marijuana with a promise of payment later. Ex. 

Vol. V p. 102. Edmon told Hardiman that he could not do so and indicated 

that he needed to “re up,” i.e., purchase additional marijuana himself. Id. 
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Hardiman then arranged to buy the drug from Emanuel Fonville the next day. 

Hardiman then sent Edmon a text message stating that he “gotta L on a QP,”1

meaning that Hardiman had identified a potential victim from which he could 

rob a quarter pound of marijuana.2

 Id. When Edmon asked Hardiman for 

more details, Hardiman replied that the person who had the marijuana was 

“some black n**ga on my snap,[3]

” and that they planned to meet at 4:30 p.m. 

in Brownsburg. Id. at 104. 

[4] On the afternoon of May 3, 2021, Fonville and his girlfriend, Giovanna Hines, 

drove to a Kroger parking lot to meet Hardiman. A Chrysler pulled up next to 

Fonville’s car. Hardiman exited the Chrysler and got in the back seat of 

Fonville’s car. Hardiman asked to see the marijuana. Fonville showed him the 

marijuana and asked to see Hardiman’s money. Hardiman then exited 

Fonville’s car and returned to the Chrysler. Edmon, who had been driving the 

Chrysler, and Hardiman both exited the Chrysler; Edmon was wearing a ski 

mask. Hardiman and Edmon got into the back seat of Fonville’s car; Hardiman 

sat behind Hines in the passenger side of the car, and Edmon sat behind 

Fonville on the driver’s side. Hardiman asked if the marijuana was the agreedto amount, and Fonville weighed the marijuana on a scale. When Fonville 

1 Unless otherwise indicated, we quote the text messages verbatim, including spelling and grammatical 

errors. 

2 Testimony at trial indicated that “L” referred to a “lick,” meaning a robbery. Tr. Vol. IV p. 49. 

Brownsburg Police Captain Jennifer Barrett testified that “QP” refers to a quarter pound, i.e., four ounces. 

Id. at 141. 

3 “Snap” refers to the social media app Snapchat. See Tr. Vol. IV p. 50. 
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said, “it’s all there,” Hardiman grabbed the marijuana. Tr. Vol. II p. 192. 

Fonville also grabbed the marijuana, and the two struggled over control of the 

marijuana. As they struggled, Hardiman pulled out a handgun and shot 

Fonville in the chest. 

[5] After Hardiman shot Fonville, Hardiman and Edmon exited Fonville’s car, got 

back into the Chrysler, and drove away. Brooks Vossler, who happened to be 

eating his lunch in the Kroger parking lot at the time, heard the shooting and 

observed a Chrysler drive away from the scene. Vossler jotted down the license 

plate number of the Chrysler. Vossler then went to Fonville’s aid. Hines dialed 

911 and hid the marijuana in the trunk of Fonville’s car. Fonville was 

transported by ambulance to the hospital, where he died as a result of the 

gunshot wound. The police found no guns or other weapons in Fonville’s car. 

They did, however, find Fonville’s marijuana, which Hines had hidden in the 

car. 

[6] That same day of the shooting, Hardiman deleted his Snapchat account, and he

either deleted or deactivated his other social media accounts. Later that 

evening, Edmon sent Hardiman a link to a news story about the shooting. 

Hardiman responded, “[d]amn.” Ex. Vol. V p. 106. Hardiman in turn sent the 

link to his girlfriend. Hardiman also sent Edmon a link about a “first time 

doing a drill [i.e., a robbery] with your homie.” Tr. Vol. IV p. 76. Hardiman 

disassembled the handgun and disposed of the pieces in various, different 

locations. 
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[7] With the license plate number and the information provided by Hines, the 

police soon identified Hardiman as a suspect. On May 6, 2021, Brownsburg 

Police Department Captain Jennifer Barrett interviewed Hardiman. Hardiman 

admitted that he planned to buy marijuana from Fonville, but he claimed that 

Fonville reached for a gun and demanded money. Only then, Hardiman 

claimed, did he pull out his gun and shoot Fonville. 

[8] The State charged Hardiman with Count I, murder; Count II, felony murder; 

and Count III, attempted robbery resulting in serious bodily injury, a Level 2 

felony. The State also alleged that Hardiman used a firearm during the 

commission of the murder. 

[9] A four-day jury trial commenced on October 25, 2022. At trial, the State 

offered into evidence State’s Exhibit 73, which was a printout of text messages 

exchanged between Hardiman and Edmon on March 15, 2021. These 

messages indicate that Hardiman and Edmon had planned a robbery on March 

15, 2021, which was similar to the plans the two made before robbing Fonville. 

Specifically, Hardiman sent a message to Edmon stating, “Gotta lick onna qp 

of some za[4] on dis n**ga I jus added on snap he a white boy.” Ex. Vol. V p. 

88. Edmon asked if the person Hardiman was referring to had a “pipe,” 

meaning a gun. Id. at 89. Hardiman stated, “Ion think so. . . . He don’t post 

it.” Id. at 90. After further discussion about the planned target, Edmon 

4 “Za” is a reference to marijuana. Tr. Vol. IV p. 67. 
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messaged Hardiman, “Think of a plan rn[5] though.” Id. at 94. Hardiman later 

told Edmon, “When u up pipe imma hop out open the back door and pull em 

out . . . [a]nd take the gas.[6]

” Id. at 95. 

[10] Hardiman objected to the admission of these March 2021 messages, arguing 

that they were unduly prejudicial, were evidence of prior bad acts, and were 

inadmissible hearsay. The State argued that the messages were admissible as 

evidence of a contrary intent to rebut Hardiman’s claim of self-defense and to 

show motive. The trial court overruled Hardiman’s objections, concluding: 

The part I was concerned about is[,] for evidence of a crime, 

wrong or other act [to] be admissible[,] the court must decide if 

the evidence is relevant to a material fact, to a matter at issue 

other than the Defendant’s propensity to commit the charged act. 

The principal risk of unfair prejudice presented by uncharged 

misconduct evidence [is] that the jury will infer that the 

Defendant was a bad man who should have been punished for 

his other uncharged misdeeds. That was the concern I had. 

Balancing everything out, [] I think the State has shown that it is 

offering this evidence for reasons other than the Defendant’s 

propensity to commit the charged act. It’s a very close call but 

when the law says basically again that the risk of unfair 

prejudice, confusion and waste of time must substantially 

outweigh the legitimate probative value. I don’t think that’s been 

met. 

5 “Rn” is an abbreviation for “right now.” See United States v. Spencer, 2023 WL 5091827, at *4 (2d Cir. Aug. 

9, 2023); Munoz v. Superior Court, 259 Cal. Rptr. 3d 247, 250 (2020) (both noting that “rn” is an abbreviation 

for “right now”). 

6 “Gas” is also a reference to marijuana. Tr. Vol. II p. 201. 
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Tr. Vol. IV p. 62. The trial court then admitted the March 2021 messages into 

evidence. 

[11] Before the case was submitted to the jury, Hardiman tendered an instruction on 

self-defense that provided in relevant part: 

A person is not justified in using force if:

(1) the person is committing a crime, and there is an 

immediate causal connection between the crime and the 

confrontation . . . . 

Appellant’s App. Vol. II p. 223. 

[12] The State’s proposed self-defense instruction stated in relevant part: 

[A] person may not use force if:

he is committing a crime that is directly and immediately 

connected to the confrontation[.] In other words, for the 

defendant to lose the right of self-defense, the jury must find that, 

but for the Defendant’s commission of a separate crime, the 

confrontation resulting in injury to Emmanuel Fonville would 

not have occurred . . . .

Id. at 216 (emphasis added). 

[13] The trial court’s instruction on self-defense included language from both 

proposed instructions and provided in relevant part: 

[A] person may not use force if he is committing a crime and 

there is an immediate causal connection between the crime and 

the confrontation. In other words, for the Defendant to lose the 
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right of self-defense the jury must find that but for the 

Defendant’s commission of a separate crime, the confrontation 

resulting in injury to Emanuel Fonville would not have occurred. 

. . . 

Tr. Vol. IV p. 170 (emphases added). Hardiman objected to the trial court’s 

instruction, which the trial court overruled. 

[14] The jury found Hardiman guilty as charged and found that Hardiman used a 

firearm during the commission of the murder. On November 14, 2022, the trial 

court held a sentencing hearing at which it entered judgment of conviction on 

the count of murder but “vacate[d]” the felony murder conviction due to double 

jeopardy concerns. Id. at 244. The trial court also entered judgment of 

conviction on the attempted robbery count as a Level 5 felony. The trial court 

sentenced Hardiman to an executed term of fifty years on the murder 

conviction, which was enhanced by ten years for the use of a firearm, and a 

consecutive term of three years on the attempted robbery conviction. 

Hardiman now appeals.7

 

7 On October 17, 2023,we held oral argument in this case at the Black Box Theater at Hammond Central 

High School in Hammond, Indiana. We extend our thanks to the faculty and staff of the school for their 

hospitality. We also thank the students from both Hammond Central High School and Hammond Morton 

High School who attended the oral argument for their thought-provoking questions after the argument. 

Lastly, we thank counsel for both parties for the quality of their arguments and for remaining after the 

argument to answer the students’ questions. 
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Discussion and Decision

I. Admission of Text Messages

[15] Hardiman first argues that the trial court abused its discretion by admitting into 

evidence the text messages he and Edmon exchanged on March 15, 2021, fortynine days before the instant shooting. We review challenges to the admission 

of evidence for an abuse of the trial court’s discretion. Combs v. State, 168 

N.E.3d 985, 990 (Ind. 2021), cert. denied. We will reverse only where the 

decision is clearly against the logic and effect of the facts and circumstances and 

the error affects a party’s substantial rights. Clark v. State, 994 N.E.2d 252, 259-

60 (Ind. 2013). “The effect of an error on a party’s substantial rights turns on 

the probable impact of the impermissible evidence upon the jury in light of all 

the other evidence at trial.” Gonzales v. State, 929 N.E.2d 699, 702 (Ind. 2010). 

[16] On appeal, Hardiman claims that the March 2021 messages were inadmissible 

evidence of prior bad acts under Indiana Evidence Rule 404(b). This rule 

provides that “[e]vidence of a crime, wrong, or other act is not admissible to 

prove a person’s character in order to show that on a particular occasion the 

person acted in accordance with the character.” Evid. R. 404(b)(1). Such 

evidence may be admitted, however, “for another purpose, such as proving 

motive, opportunity, intent, preparation, plan, knowledge, identity, absence of 

mistake, or lack of accident.” Evid. R. 404(b)(2).

[17] Evidence Rule 404(b) is designed to prevent the jury from making the 

“forbidden inference” that prior wrongful conduct suggests present guilt. 
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Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013). As our Supreme Court 

stated in Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003), the purpose behind 

Evidence Rule 404(b) is to “prevent[] the State from punishing people for their 

character, and evidence of extrinsic offenses poses the danger that the jury will 

convict the defendant because . . . he has a tendency to commit other crimes.” 

(internal quotation omitted). 

[18] “The effect of Rule 404(b) is that evidence is excluded only when it is 

introduced to prove the forbidden inference of demonstrating the defendant’s 

propensity to commit the charged crime.” Laird v. State, 103 N.E.3d 1171, 1177 

(Ind. Ct. App. 2018) (citing Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App. 

2008)), trans. denied. When evidence is introduced for another purpose—such 

as proving motive, opportunity, intent, preparation, plan, knowledge, identity, 

absence of mistake, or lack of accident—the trial court: 

First . . . must determine that the evidence of other crimes, 

wrongs, or acts is relevant to a matter at issue other than the 

defendant’s propensity to commit the charged act. Second, the 

court must determine that the proponent has sufficient proof that 

the person who allegedly committed the act did, in fact, commit 

the act. And third, the court must balance the probative value of 

the evidence against its prejudicial effect pursuant to Rule 403. 

D.R.C. v. State, 908 N.E.2d 215, 223 (Ind. 2009) (citations and internal 

quotations omitted). 

[19] Hardiman argues that, here, the State offered the text messages to prove the 

forbidden inference—that he had talked about a robbery previously and was, 
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therefore, more likely to have committed the robbery alleged here. The State 

argues that the messages were offered for another purpose, specifically, to rebut 

Hardiman’s claim of self-defense and show his motive and intent. We agree 

with the State. 

[20] Intent is always at issue in a criminal trial. Fairbanks v. State, 119 N.E.3d 564, 

571 (Ind. 2019) (citing Wickizer v. State, 626 N.E.2d 795, 797 (Ind. 1993)). “To 

allow other-bad-acts evidence to prove intent when a defendant merely denies 

involvement in a crime would often produce the ‘forbidden inference’—a result 

at odds with Rule 404(b)’s overarching purpose.” Id. at 569 (citing Wickizer, 

626 N.E.2d at 797, 799). Thus, “Rule 404(b)’s intent exception is available 

only ‘when a defendant goes beyond merely denying the charged culpability 

and affirmatively presents a claim of particular contrary intent.’” Id. (quoting 

Wickizer, 626 N.E.2d at 799). The State must have “reliable assurance” that the 

defendant will affirmatively contest the issue of intent before the intent 

exception will apply. Id. (quoting Wickizer, 626 N.E.2d at 799). Accordingly, 

the intent exception “becomes available when a defendant’s claim of contrary 

intent is alleged in the ‘opening statement, by cross-examination of the State’s 

witnesses, or by presentation of his own case-in-chief.’” Id. (quoting Wickizer, 

626 N.E.2d at 799). 

[21] Here, Hardiman alleged a contrary intent—self-defense—in his opening 

statement. See Tr. Vol. II p. 138 (“This case is about self-defense. Marques 

Hardiman was acting in self-defense. And you will hear that he shot one time 

to defend himself.”). A claim of self-defense is a claim of contrary intent. Evans 
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v. State, 727 N.E.2d 1072, 1080 (Ind. 2000); Davis v. State, 186 N.E.3d 1203, 

1211 (Ind. Ct. App. 2022), trans. denied. When a defendant claims self-defense, 

the State may use the defendant’s prior misconduct to disprove that the victim 

was the first aggressor. Embry v. State, 923 N.E.2d 1, 9 (Ind. Ct. App. 2010)

(citing Evans, 727 N.E.2d at 1080). 

[22] The State did not introduce Hardiman’s March 2021 messages to show that he 

was of poor character and was, therefore, more likely to have acted in 

accordance with his character on a particular occasion. Instead, the State 

introduced the messages to show that Hardiman had the intent to commit 

robbery when he met Fonville and did not act in self-defense.

[23] In support of his argument, Hardiman claims that the prosecutor noted the 

similarity between the March 2021 planned robbery and the May 3, 2021 

robbery during which Hardiman shot Fonville. The prosecuting attorney, 

however, stressed in the State’s closing argument that the March 2021 messages 

were evidence of Hardiman’s intent on the day of the robbery.8

 

8 The relevant portions of the State’s closing argument follow: 

So, let’s talk about what the Defendant intended. What was his plan. The plan between 

Edmon and the Defendant, does this look familiar? We know what the Defendant was 

intending to do when he met with, a male on May 3 with Emanuel Fonville. On the May 3 

text, or May 5, excuse me, March 15 text messages the Defendant writes this. [Prosecutor reads 

the March 2021 messages]. That statement was written by the Defendant. It’s clear what his 

intent was on May 3. There was never going to be a sale of marijuana. [Prosecutor reads the 

May 2021 messages]. Look familiar? The language look familiar? [Prosecutor reads from the 

May 2021 messages]. Contained in those text messages is the plan, is the intent to rob Emanuel 

Fonville. That’s the Defendant’s intent. . . . March 15 text messages, May 3 actions. The 

Defendant’s intent and plan was robbery.

Tr. Vol. IV pp. 180-81 (emphases added). 
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[24] Hardiman also argues that, before the evidence of his prior text messages could 

be introduced under the intent exception to Evidence Rule 404(b), the State had 

to prove that Hardiman followed through with his plan to commit the prior 

robbery. In support of this argument, Hardiman cites D.R.C., supra. As noted 

above, our Supreme Court in D.R.C. stated that, before a trial court may admit 

evidence of other bad acts for “other purposes,” the court “must determine that 

the proponent has sufficient proof that the person who allegedly committed the 

act did, in fact, commit the act.” D.R.C., 908 N.E.2d at 223. Hardiman argues 

that the text messages were inadmissible because there was no proof that either 

he or Edmon carried out their planned robbery in March 2021. Hardiman 

misreads D.R.C. 

[25] The D.R.C. court did not hold that the defendant must have completed the 

crime before the prior act may be admitted as evidence of intent. Instead, it 

held that the State must prove that it was, in fact, the defendant who did the 

prior “act.” Here, the act at issue in the March 2021 text messages was not a 

completed robbery, but the planning of the robbery itself. In fact, the State never 

argued that Hardiman and Edmon completed the planned robbery in March 

2021. And there is no dispute that the March 2021 messages were exchanged 

between Hardiman and Edmon. 

[26] The facts of D.R.C. are also readily distinguishable. In D.R.C., the trial court 

admitted evidence suggesting that the defendant’s daughter had been molested 

to show the defendant’s motive to murder her, but the State offered no evidence 

that the defendant was the one who molested her. Therefore, the evidence 
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suggesting that the defendant had molested his daughter was not properly 

admitted for “another purpose” under Evidence Rule 404(b). D.R.C., 908 at 

224. 

[27] Similarly, in Corbett v. State, 179 N.E.3d 475, 489-90 (Ind. Ct. App. 2021), the 

trial court admitted evidence of three other attempted home invasions that had 

occurred in the area where the defendant had committed a home invasion. On 

appeal, Corbett argued that the evidence was inadmissible under Evidence Rule 

404(b). “The State’s theory appear[ed] to be that Corbett committed the attack 

on the [victims in the present case], so he must have committed the other 

attempted home invasions, and those other attempts explain his motive to enter 

the [victims]’ home that night.” Id. at 489-90. We rejected this “circular 

reasoning” and held that the evidence of the other attempted home invasions 

“could be relevant to motive—it could explain why Corbett attacked a family 

he seemingly had no connection to. But this is only relevant if he committed 

those other home invasions, and there is no evidence in the record that he did.” 

Id. at 490. 

[28] Here, however, Hardiman exchanged the text messages with Edmon in March 

2021. And these messages detailed a plan to rob a person in a way almost 

identical to how Hardiman and Edmon robbed Fonville. The text messages 

were therefore admissible to show Hardiman’s intent and to rebut his theory of 
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self-defense.9

 Accordingly, we conclude that the trial court did not abuse its 

discretion by admitting the March 2021 messages into evidence to rebut 

Hardiman’s claim of self-defense.10 

II. Self-Defense Instruction

[29] Hardiman also argues that the trial court abused its discretion in instructing the 

jury regarding the defense of self-defense. As we explained in Paul v. State: 

The trial court has broad discretion as to how to instruct the jury, 

and we generally review that discretion only for abuse. To 

determine whether a jury instruction was properly refused, we 

consider: (1) whether the tendered instruction correctly states the 

law; (2) whether there was evidence presented at trial to support 

giving the instruction; and (3) whether the substance of the 

instruction was covered by other instructions that were given. In 

doing so, we consider the instructions as a whole and in reference 

to each other and do not reverse the trial court for an abuse of 

discretion unless the instructions as a whole mislead the jury as 

to the law in the case. 

9 Hardiman makes no argument that the evidence was unduly prejudicial under Evidence Rule 403. Even if 

he did, the trial court did not abuse its discretion by concluding that the probative value of the March 2021 

text messages was not substantially outweighed by any concern of undue prejudice. 

10 In his reply brief, Hardiman cites Gillespie v. State, 832 N.E.2d 1112 (Ind. Ct. App. 2005). In Gillespie the 

defendant stabbed and killed the victim during a fight. The State presented evidence that on the night of the 

stabbing, the defendant had been drinking alcohol, was angry, and had threatened other people. The State 

argued this evidence was admissible to show Gillespie's “state of mind.” Id. at 1117. On appeal, a panel of 

this Court held that this evidence was irrelevant to whether the defendant had a reasonable belief that his 

own use of force was necessary to prevent serious injury to himself. Id. In contrast, the evidence at issue 

here—Hardiman’s planning of an almost identical robbery just weeks prior to the robbery of Fonville—was 

highly relevant of Hardiman’s intent, i.e., whether he merely planned to purchase marijuana or whether he 

intended to rob Fonville.
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189 N.E.3d 1146, 1159 (Ind. Ct. App. 2022) (citations and internal quotations 

omitted), trans. denied. 

[30] Here, the trial court instructed the jury that: 

[A] person may not use force if he is committing a crime and 

there is an immediate causal connection between the crime and 

the confrontation. In other words, for the Defendant to lose the 

right of self-defense the jury must find that but for the 

Defendant’s commission of a separate crime, the confrontation 

resulting in injury to Emanuel Fonville would not have 

occurred[.]

Tr. Vol. IV p. 170 (emphases added). Hardiman claims that this instruction 

was an incorrect statement of the law under our Supreme Court’s holding in 

Gammons v. State, 148 N.E.3d 301 (Ind. 2020). 

[31] Before addressing Gammons, we first consider the case that Gammons cited—

Mayes v. State, 744 N.E.2d 390 (Ind. 2001). In that case, the defendant shot and 

killed his girlfriend after accusing her of stealing his money. Mayes testified 

that his girlfriend reached for her purse, which he claimed caused him to fear 

that she was reaching for a gun. This, he claimed, is why he drew his own gun 

and shot her five times. At trial, the trial court instructed the jury on Mayes’s 

claim of self-defense using the language from the self-defense statute: “[a] 

person is not justified in using force if . . . [h]e is committing, or is escaping 

after the commission[ ] of[,] a crime.” Id. at 392 (citing Ind. Code § 35-41-3-2)

(brackets in original). 
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[32] On appeal, our Supreme Court noted that “[a] literal application of the 

contemporaneous crime exception would nullify claims for self-defense in a 

variety of circumstances and produce absurd results in the process.” Id. at 393

The Mayes Court cited with approval the opinion of this Court in Harvey v. State, 

652 N.E.2d 876 (Ind. Ct. App.1995), in which the defendant fatally shot the 

victim with an unlicensed firearm and claimed self-defense. The trial court in 

Harvey instructed the jury that a person carrying a handgun without a license 

could not avail himself of the defense of self-defense. The Harvey Court noted 

that: 

If [the contemporaneous crime exception to the self-defense 

statute] is to be taken literally, then no person may claim self 

defense if that person at the time he acts is coincidentally 

committing some criminal offense. For example, possession of a 

marijuana cigarette or the failure to have filed one’s income tax 

returns could deny one the defense no matter how egregious, or 

unrelated, the circumstances that prompted the action. Read as a 

whole, the statute refutes such a construction.

652 N.E.2d at 877 (quoted in Mayes, 744 N.E.2d at 393-94). The Mayes Court 

agreed with this statement and observed that other jurisdictions had reached the 

same conclusion. Mayes, 744 N.E.2d at 393 (citing Oregon v. Doris, 51 Or. 136, 

94 P. 44, 53 (Or.1908); South Carolina v. Leaks, 103 S.E. 549, 551 (S.C. 1920); 

West Virginia v. Foley, 35 S.E.2d 854, 861 (W.Va. 1945)). 

[33] Accordingly, our Supreme Court in Mayes concluded that “because a defendant 

is committing a crime at the time he is allegedly defending himself is not 

sufficient standing alone to deprive the defendant of the defense of self-
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defense.” Id. at 394. “Rather, there must be an immediate causal connection

between the crime and the confrontation. Stated differently, the evidence must 

show that but for the defendant committing a crime, the confrontation 

resulting in injury to the victim would not have occurred.” Id. Notably, Justice 

Boehm concurred in result but was “concerned that this ‘but for’ test is too 

broad.” Id. at 396. Justice Boehm wrote: 

There are many situations where ‘but for the defendant 

committing a crime, the confrontation resulting in injury to the 

victim would not have occurred,’ but where the defense of selfdefense should be available. For example, take a situation 

similar to the one referred to in the majority opinion in State v. 

Leaks, 103 S.E. 549, 551 (1920). The defendant is illegally 

gambling and a fight erupts because the victim believes the 

defendant is cheating. This leads to the victim’s death. Under 

these circumstances, the defendant should be free to claim selfdefense. Similarly, if the victim attempts to take marijuana from 

the defendant and it leads to an altercation and the victim’s 

death, self-defense should be available. In either case, the 

majority’s “but for” test may be thought to be satisfied, and, if so, 

the defendant would be precluded from raising self-defense. In 

general, commission of a non-violent crime with no inherently 

predictable violent outcome should not negate the defense of selfdefense.

Id. at 396-97.

[34] In Gammons, our Supreme Court revisited the question of when self-defense is 

available to a person committing a crime. The Court noted that it had held in 

Mayes that “‘there must be immediate causal connection between the crime and 

the confrontation.’” Gammons, 148 N.E.3d at 304 (quoting Mayes, 744 N.E.2d 
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at 393) (emphasis in original). The trial court in Gammons, however, had 

instructed the jury that the defendant could not claim self-defense “if he was 

‘committing a crime that [wa]s directly and immediately related to the 

confrontation.’” Id. (alterations and emphasis in original). This, the Court 

held, was improper, writing: 

By requiring that the crime and confrontation just be joined or 

linked, neither “connected” nor “related” suggest the element of 

causation demanded by Mayes. Justice Boehm’s concurrence in 

Mayes presaged this diminution of the standard, warning that the 

Court—by rephrasing that “the evidence must show that but for 

the defendant committing a crime, the confrontation resulting in 

injury to the victim would not have occurred”—left open 

circumstances where a “defendant should be free to claim selfdefense.” Mayes, 744 N.E.2d at 394 (majority opinion) 

(emphasis added), 396 (Boehm, J., concurring). We now concur 

with Justice Boehm: “this ‘but for’ test is too broad.”[11] Id. at 

396. Read literally, this formulation could foreclose the defense 

in an instance where a defendant’s crime was tenuously 

connected with the confrontation, like the defense being 

unavailable to a defendant who “is illegally gambling and a fight 

erupts because the victim believes the defendant is cheating[, 

leading] to the victim’s death.” Id. at 396-97 (citing State v. Leaks, 

114 S.C. 257, 103 S.E. 549, 551 (1920)). Since this “but for” test 

can impede the defense in the same unjust and absurd ways as a 

literal reading of the statute, we reject that rephrasing and 

reiterate that self-defense is barred only when there is “an 

11 The Gammons Court referred to the instruction in Mayes as a “but for” test. The language in the instruction 

at issue in Gammons, however, did not use the term “but for,” and instead instructed the jury that “‘a person 

may not use force if,’ among other things, ‘he is committing a crime that is directly and immediately related 

to the confrontation.’” Gammons, 148 N.E.3d at 303 (record citation omitted). 
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immediate causal connection between the crime and the 

confrontation.” Id. at 394 (majority opinion).

Gammons, 148 N.E.3d at 304-05 (emphases added). 

[35] Here, the trial court’s instruction includes the proper language from Gammons: 

“a person may not use force if he is committing a crime and there is an 

immediate causal connection between the crime and the confrontation.” Tr. 

Vol. IV p. 170. But it also contains the improper “but for” language 

disapproved of in Gammons: “for the Defendant to lose the right of self-defense 

the jury must find that but for the Defendant’s commission of a separate crime, 

the confrontation resulting in injury to Emanuel Fonville would not have 

occurred.” Tr. Vol. IV p. 170. 

[36] Hardiman claims that the inclusion of the “immediate causal connection” 

language in the instruction does not cure the improper “but for” language; 

instead, he claims, it equates the “immediate causal connection” language with 

the “but for language.” That is, he claims that the instruction essentially defines 

an “immediate causal connection” as being the same as finding that “but for” 

his commission of a crime, the confrontation would not have happened. 

[37] The inclusion of the “but for” language contained in the trial court’s instruction 

was improper, as that language has been disapproved of by our Supreme Court 
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in Gammons.

12 Yet the trial court’s instruction also properly informed the jury 

that, before Hardiman lost his right to self-defense, there must have been an 

immediate causal connection between his crime and the confrontation that led 

to his shooting Fonville, which is precisely what our Supreme Court held in 

Gammons.

13 We conclude that this instruction was incorrect. See Gammons, 148 

N.E.3d at 304-05. Ultimately, however, the self-defense instruction was 

harmless error in this case. If we find a challenged instruction to be erroneous, 

we presume that the error affected the verdict and will reverse the defendant’s 

conviction unless “the verdict would have been the same under a proper 

instruction.” Gammons, 148 N.E.3d at 303. 

12 Prior to 2021, the pattern jury instruction on self-defense did not include the “but for” language 

disapproved in Gammons. See Ind. Pattern Crim. Jury Inst. No. 10.0300 (4th. ed., Release No. 19A, Feb. 

2020) (stating in relevant part that “a person may not use force if: . . . (he/she is committing a crime that is 

directly and immediately connected to the (confrontation) (use a descriptive term based on evidence)”). It 

was not until after Gammons disapproved the “but for” language that, inexplicably, the “but for” language 

appeared in the pattern jury instruction. See Ind. Pattern Crim. Jury Ins. No. 10.0300 (4th ed., Release No. 

20A, Feb. 2021) (stating in relevant part that “a person may not use force if: . . . (he/she is committing a 

crime that is directly and immediately connected to the (confrontation) (use a descriptive term based on 

evidence). In other words, for the defendant to lose the right of self-defense, the jury must find that, but for

the Defendant’s commission of a separate crime, the confrontation resulting in injury to [victim’s name] 

would not have occurred.”). The comment to the instruction stated: “‘Immediate causal connection’ is a 

term of art and should not be paraphrased for fear of reversal. See Gammons v. State 148 N.E.3d 301 (Ind. 

2020). The ‘but for’ section from the previous comments paragraph has been expressly added to emphasize 

this point.” Ind. Pattern Crim. Jury Instr. No. 10.0300, cmt. (4th Ed., Release No 20A, Feb. 2021). This 

language persisted in the pattern instruction update issued at the end of 2021. See id. (4th ed., Release No. 

21A, Dec. 2021). Fortunately, the current version of the pattern instruction has corrected this error and 

properly tracks the language in Gammons: “a person may not use force if . . . (he/she is committing a crime 

and there is an immediate causal connection between the crime and the confrontation (use a descriptive term 

based on evidence).” Ind. Pattern Crim. Jury Inst. No. 10.0300 (4th ed., Release No. 22A, Jan. 2023). 

13 During the State’s closing argument, when the prosecutor argued that “you cannot avail yourself of selfdefense when you’re committing a crime,” he quickly noted that the instruction required there be an 

“immediate causal connection between a crime and a complication [sic]. I would submit to you that all the 

evidence suggests there’s immediate . . . causal connection.” Tr. Vol. IV p 176. 
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[38] Here, the evidence was overwhelming that Hardiman and Edmon planned to 

meet with Fonville to rob him, not that Hardiman merely planned to purchase 

marijuana from Fonville. Hardiman admitted to shooting Fonville, and there 

was no evidence corroborating Hardiman’s claim that Fonville was armed. 

Hardiman also fled the scene and did not seek medical help for Fonville. 

Hardiman deleted his social media accounts immediately after the shooting; 

Hardiman disposed of the weapon he used to shoot Fonville; and Hardiman 

sent Edmon a link about robbing someone with a friend for the first time. We, 

therefore, conclude that the jury’s verdict would have been the same under a 

proper instruction. 

Conclusion

[39] The trial court did not abuse its discretion by admitting evidence under 

Evidence Rule 404(b) of text messages between Hardiman and Edmon 

concerning a robbery they planned in March 2021 because such evidence was 

admissible to show Hardiman’s intent to rob Fonville and rebut Hardiman’s 

claim of self-defense. Further, although the trial court’s instruction regarding 

the availability of self-defense contained the disapproved “but for” language, 

the error in instructing the jury was harmless given the overwhelming evidence 

of Hardiman’s guilt. We, therefore, affirm the judgment of the trial court. 

[40] Affirmed. 

Weissmann, J., and Kenworthy, J., concur.