Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018 Page 1 of 16

ATTORNEY FOR APPELLANT

Victoria L. Bailey 

Valerie K. Boots

Kevin Wild 

Marion County Public Defender Agency 

Indianapolis, Indiana 

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Larry Ervin,

Appellant-Defendant,

v. 

State of Indiana, 

Appellee-Plaintiff

November 28, 2018

Court of Appeals Case No.

18A-CR-965 

Appeal from the Marion Superior 

Court

The Honorable Kurt Eisgruber, 

Judge

Trial Court Cause No.

49G01-1702-F6-7818 

May, Judge.
Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018 Page 2 of 16

[1] Larry Ervin appeals his conviction of Level 5 felony criminal recklessness1 and 

Level 6 felony pointing a firearm.2

 He presents two issues for review, which we 

restate as:

1) Whether the State presented sufficient evidence to support his 

convictions; and

2) Whether the trial court abused its discretion when it denied 

his proposed jury instructions regarding defense of property 

and defense of others.

In addition, we address, sua sponte, whether Ervin was subjected to double 

jeopardy. We vacate in part and affirm in part.

Facts and Procedural History3

[2] On February 26, 2017, Ervin discovered his iPad was missing. Earlier in the 

day, he had been asked by a neighbor to assist with a car repair. He had last 

seen his iPad prior to helping his neighbor. Ervin contacted the police and was 

told someone would come to take a report. While waiting, Ervin used his Find 

My iPhone application (“App”) and located his iPad in the area where he had 

 

1 Ind. Code §§ 35-42-2-2(a) & (b)(1)(A) (2014).

2 Ind. Code § 35-47-4-3(b) (2014). 

3 We heard oral argument on this matter on October 30, 2018, at Rising Sun High School in Rising Sun, 

Indiana. We thank counsel for the quality of their written and oral arguments, for participating in the postargument discussion with the audience, and for commuting to Rising Sun. We especially thank the faculty, 

staff, and students of the Rising Sun High School for their gracious hospitality and thoughtful post-argument 

questions.
Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018 Page 3 of 16

gone to assist his neighbor. Shortly thereafter, Ervin saw, via the App, that his 

iPad was moving around Indianapolis. Ervin decided to follow it. 

[3] Ervin arrived at the intersection of Sherman and Southeastern in Indianapolis 

when the App indicated his iPad was at the same intersection. Ervin saw only 

one other vehicle at the intersection—a black truck that he thought he had seen 

earlier in the day when he tried to help his neighbor. Ervin stopped his truck in 

the middle of the intersection and stepped out to attempt to retrieve his property 

from the person in the black truck. Ervin approached the black truck and 

shouted for the occupant to “Stop, freeze, stop.” (Tr. Vol. II at 75.) 

[4] Anthony Hines was driving the black truck. He had the windows rolled up and 

did not hear Ervin. Hines saw “a big white SUV stop[] in the middle of the 

intersection, a guy hop[] out of a truck, . . . grabbing for something[.]” (Id. at 

57.) Hines had never met Ervin before. Hines then noticed Ervin was pointing 

a gun at him. Hines did not realize a vehicle was behind him, and he put his 

truck in reverse and backed into that vehicle—a Kia Sorento. Without 

stopping, Hines made a “right U-turn[,]” (id. at 58), and started to drive away. 

He heard Ervin start firing at him, “like [Ervin] peppered [Hines’] truck.” (Id.) 

Hines executed the U-turn on the shoulder near a gas station. After verifying 

Ervin was not following him, Hines called 911 and went home. Hines talked to 

police at his home. 
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[5] Ervin called 911 again after Hines left the scene. Ervin told the dispatcher he 

had attempted to shoot the tires of the truck. The dispatcher told Ervin to 

remain onsite and talk to the responding officer. 

[6] Kristin Armour was an eyewitness. Armour had her twelve-year-old daughter 

in the car with her. The daughter was screaming because of the gun fire. 

Armour called 911 “as soon as [she] seen [sic] [Ervin] pull out the gun[.]” (Id. 

at 75.) Armour parked at the gas station to talk to the police. 

[7] Anthony McGowan, the driver of the Kia, ducked down in his car when shots 

were fired. After the shooting stopped, McGowan exited his vehicle to talk to 

Ervin. McGowan said he “didn’t have any fear [of Ervin] because [he] knew 

[Ervin] wasn’t shooting at [him].” (Id. at 86.) 

[8] Michael Tedders was at the gas station, with his fifteen-year-old son. He heard 

“‘Stop, stop,’ then . . . pop-pop-pop-pop.” (Id. at 92.) He and his son hid in 

their car during the shooting and stayed at the scene to talk to the police. 

[9] Indianapolis Metropolitan Police Department (“IMPD”) Officer Richard 

Faulkner, Sr., was dispatched to the scene pursuant to a report of a 

“disturbance with shots fired.” (Id. at 31.) He was only “about five blocks 

away[,]” (id. at 33), so he arrived in “[l]ess than a minute” after being 

dispatched. (Id. at 34.) He saw “several people in the [gas station] parking lot, 

in the grass area, yelling and waving their hands.” (Id.) The people were 

yelling that Ervin was the shooter and had a gun. 
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[10] Officer Faulkner located a white truck blocking the intersection with a white 

male walking toward it. Officer Faulkner pulled his gun and “yelled at [Ervin] 

to turn around” and show his hands. (Id. at 39.) Ervin leaned into his truck 

and did not do as he was told. Officer Faulkner had to repeat his order before 

Ervin complied. Officer Faulkner placed Ervin in handcuffs and read his 

Miranda rights to him. 

[11] Ervin told Officer Faulkner what had occurred, i.e., that his iPad had been 

stolen, he had been tracking it, he located it at this intersection, and “he was 

going to initiate a citizen’s arrest.” (Id. at 42.) Ervin told Officer Faulkner that 

he had “started firing rounds at [the truck] because he thought he was going to 

be hit.” (Id.) 

[12] IMPD Officer Kyle Hoover was sent to talk to Hines. He noted that Hines 

“was very rattled, very – he was very upset.” (Id. at 98.) Officer Hoover noted 

Hines’ truck had three bullet holes in it and had damage to the “rear bumper 

tailgate area that would be consistent with a fresh vehicle accident.” (Id. at 99.) 

The bullet holes were all on the passenger side of the truck. 

[13] The State ultimately charged Ervin with Level 5 felony criminal recklessness 

and Level 6 felony pointing a firearm. At trial, Ervin requested the trial court 

give jury instructions for defense of property and for defense of other. The trial 

court stated: 

Ervin precipitated the events, one, by blocking the traffic in the 

intersection, and two, approaching, which was by all apparent –

based on all the testimony I heard, a weapon was seen either at 
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the side or pulled at some point during this, but I do find that 

[Ervin] precipitated the sequence of events, and the instructions 

will be denied on that basis.

(Id. at 142.) 

[14] During closing arguments, Ervin’s counsel explained Indiana allows a person to 

use deadly force to defend other people and that was what Ervin was doing. 

Ervin’s counsel also explained Ervin was allowed to use reasonable force to 

protect his property. Ervin argued he was: 1) trying to protect his property by 

approaching the truck in which Ervin believed the property was located; and 2) 

trying to protect people from a reckless driver when the driver of the truck tried 

to race away. 

[15] The jury found Ervin guilty as charged. The trial court agreed with Ervin that 

no malice was present during the events but also agreed with the State that, due 

to the nature of the offense and that it included a firearm, some executed time 

was required. The trial court sentenced Ervin to three years, with two and onehalf years suspended.

Discussion and Decision

Double Jeopardy

[16] At oral argument, sua sponte, we asked the parties whether a double jeopardy 

violation occurred herein. Article 1, Section 14 of the Indiana Constitution 

states: “No person shall be put in jeopardy twice for the same offense.” Indiana 
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uses a two-part test for double jeopardy claims by deciding whether the offenses 

share statutory elements or whether the actual evidence used to convict on one 

count also establish the elements of the other count. Lee v. State, 892 N.E.2d 

1231, 1233 (Ind. 2009). Although the counts of pointing a firearm and criminal 

recklessness do not share all statutory elements, we review the evidence 

presented herein to determine whether the jury could have used the same 

evidence to find Ervin guilty of both charges. 

[17] To determine if a jury used the same facts to establish the elements of each 

offense, we consider the evidence, charging information, jury instructions, and 

arguments of counsel. Garrett v. State, 992 N.E.2d 710, 720 (Ind. 2013). The 

charging information alleged as Count I that Ervin “did perform an act that 

created a substantial risk of bodily injury to another person by shooting a 

firearm into . . . a place where people are likely to gather, to wit: a vehicle 

driven by [] Hines while [] Hines was in said vehicle[.]” (App. Vol. II at 47.) 

Count II alleged simply: “Ervin did knowingly or intentionally point a firearm . 

. . at [] Hines[.]” (Id.) The jury instructions also did not clarify whether Ervin 

pointed his gun at Hines at a time different than when Ervin shot his gun at 

Hines. That leaves us with the evidence presented and the arguments made by 

counsel. 

[18] At trial, contrary evidence was presented as to whether Ervin had his iPhone or 

his gun in his hand as he approached Hines’ truck. Ervin, himself, testified he 

approached with his iPhone in his hand but then pulled and raised his gun 

when Hines revved his engine. He stated he then lowered the gun until he 
Court of Appeals of Indiana | Opinion 18A-CR-965 | November 28, 2018 Page 8 of 16

thought Hines was going to hit the witnesses at the gas station. At that point, 

all parties agree Ervin started shooting in the direction of the truck. Thus, 

evidence was presented that would have allowed the jury to find that Ervin 

pointed his gun at Hines at a time separate from when Ervin shot his gun at 

Hines.

[19] When discussing the Level 6 felony pointing a firearm during closing

arguments, the State argued Ervin pointed the gun when Hines revved the truck 

engine. However, the State followed this statement by saying: “And what 

really settles the fact that he pointed that gun is that Anthony Hines’ truck was 

littered with bullets.” (Tr. Vol. II at 146.) The State then proceeded to go 

through the elements of criminal recklessness wherein it stated the recklessness 

was proven by the fact Ervin “block[ed] traffic,” got “out of [his] vehicle,

frighten[ed] other individuals who d[id] not know what’s going on, doing it 

with a gun, and firing off seven rounds.” (Id. at 147.) Thus, the State, in 

closing argument, used the fact of Ervin’s shooting the gun as part of the 

evidence to show he pointed the gun, and the State also used the facts occurring 

from the time Ervin stopped his truck to demonstrate that he was criminally 

reckless. 

[20] The possibility of the jury using the same facts to support more than one charge 

cannot be “remote and speculative[.]” Griffin v. State, 717 N.E.2d 73, 89 (Ind. 

1999), cert. denied 530 U.S. 1247 (2000). However, a “reasonable possibility” 

the jury used the same facts would indicate a defendant has been subjected to 

double jeopardy. Id. Herein, the charging information does not allege facts 
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that indicate Ervin pointed the gun at Hines at a time distinct from when he 

pointed the gun at Hines to shoot at him. The preliminary jury instructions

merely instruct the jurors to consider how the law and evidence “appl[ies] to 

each count individually[,]” (App. Vol. II at 105), and cautions the jurors that 

each element of each charge must be proven by the State. None of the jury 

instructions specifically advised the jury it was required to find a separate act to

prove each charge. The evidence presented was conflicting as to whether Ervin 

approached Hines’ truck with the gun drawn or drew it only as he prepared to

shoot. The State invited the jury to use the fact Hines’ truck was “littered with 

bullets[,]” (Tr. Vol. II at 146), to support the charge of pointing a firearm, which 

is the same evidence supporting the charge of criminal recklessness. 

[21] While the jury may have based its verdict on the fact Ervin approached Hines’ 

truck with the gun pointed at the truck, an action that could reasonably be 

presumed to be separate from Ervin pulling the gun immediately prior to 

shooting, the jury was also free to use the drawing of the gun immediately 

before Ervin started firing to support both charges. Therefore, there is a 

reasonable probability that a double jeopardy violation occurred. Accordingly, 

the lesser charge of pointing a firearm must be vacated. See Richardson v. State, 

717 N.E.2d 32, 55 (Ind. 1999) (when a double jeopardy violation occurs, the 

proper outcome is to “vacate the conviction with the less severe penal 

consequences”), holding modified on other grounds by Garrett v. State, 992 N.E.2d 

710 (Ind. 2013).
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Sufficiency of Evidence

[22] Ervin argues the State did not present sufficient evidence to overcome his 

defense of property and defense of others claims. Ervin claims he was 

defending his property when he approached Hines’ truck. Thereafter, when 

Hines was driving away, Ervin claims he was defending others from an erratic 

driver.4 A claim of “defense of property is analogous to the defense of selfdefense.” Hanic v. State, 406 N.E.2d 335, 339 (Ind. Ct. App. 1980). A claim of 

defense of other is also analogous to a claim of self-defense. Rondeau v. State, 48 

N.E.3d 907, 919 (Ind. Ct. App. 2016), trans. denied. 

[23] Our standard for reviewing a challenge to the sufficiency of evidence to rebut a 

claim of self-defense is the same standard used for any claim of insufficient 

evidence. Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). We neither 

reweigh the evidence nor judge the credibility of the witnesses. Adetokunbo v. 

State, 29 N.E.3d 1277, 1280 (Ind. Ct. App. 2015). We consider only the 

 

4 As to Ervin’s claim he was making a lawful citizen’s arrest, Indiana Code section 35-33-1-4 states:

(a) Any person may arrest any other person if:

(1) the other person committed a felony in his presence;

(2) a felony has been committed and he has probable cause to believe that the other person 

has committed that felony; or

(3) a misdemeanor involving a breach of peace is being committed in his presence and the 

arrest is necessary to prevent the continuance of the breach of peace.

Ervin did not see anyone, let alone Hines, steal the iPad. In order for the theft of the iPad to qualify as the 

lowest level felony, the iPad needed to be worth “at least seven hundred fifty dollars ($750)[.]” Ind. Code § 

35-43-4-2(a)(1). No proof of the iPad’s value was presented at trial. Therefore, Ervin’s claims of making a 

lawful citizen’s arrest are without merit because the alleged theft of his iPad was not “committed in [Ervin’s] 

presence[.]” Ind. Code § 35-33-1-4(a)(3). 
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probative evidence and reasonable inferences supporting the trial court’s 

decision. Id. “A conviction will be affirmed if there is substantial evidence of 

probative value such that a reasonable trier of fact could have concluded the 

defendant was guilty beyond a reasonable doubt.” Id. at 1280-81.

[24] To prove Ervin committed Level 6 felony criminal recklessness, the State 

needed to present evidence Ervin “recklessly, knowingly, or intentionally 

perform[ed] an act that create[d] a substantial risk of bodily injury to another 

person . . . while armed with a deadly weapon[.]” Ind. Code §§ 35-42-2-2(a) & 

(b)(1)(A) (2014). 

[25] “A valid claim of self-defense is legal justification for an otherwise criminal 

act.” Wallace, 725 N.E.2d at 840. 

A person is justified in using reasonable force against any other 

person to protect the person or a third person from what the 

person reasonably believes to be the imminent use of unlawful 

force. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

if the person reasonably believes that that force is necessary to 

prevent serious bodily injury to the person or a third person or 

the commission of a forcible felony. No person in this state shall 

be placed in legal jeopardy of any kind whatsoever for protecting 

the person or a third person by reasonable means necessary.

Ind. Code § 35-41-3-2(c). 
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With respect to property other than a dwelling, curtilage, or an 

occupied motor vehicle, a person is justified in using reasonable 

force against any other person if the person reasonably believes 

that the force is necessary to immediately prevent or terminate 

the other person’s trespass on or criminal interference with 

property lawfully in the person’s possession, lawfully in 

possession of a member of the person’s immediate family, or 

belonging to a person whose property the person has authority to 

protect. However, a person:

(1) is justified in using deadly force; and

(2) does not have a duty to retreat;

only if that force is justified under subsection (c).

Ind. Code § 35-41-3-2(e).

[26] To prevail on such claims, a defendant must show he: (1) was in a place where 

he had a right to be; (2) did not provoke, instigate, or participate willingly in the 

violence; and (3) had a reasonable fear of death or great bodily harm. Wilson v. 

State, 770 N.E.2d 799, 800 (Ind. 2002). “When a claim of self-defense is raised 

and finds support in the evidence, the State bears the burden of negating at least 

one of the necessary elements.” King v. State, 61 N.E.3d 1275, 1283 (Ind. Ct. 

App. 2016), trans. denied. “The State may meet this burden by rebutting the 

defense directly, by affirmatively showing the defendant did not act in selfdefense, or by simply relying upon the sufficiency of its evidence in chief.” Id. 

If a defendant is convicted despite his claim of self-defense, we will reverse only 

if no reasonable person could say that self-defense was negated beyond a 

reasonable doubt. Wilson, 770 N.E.2d at 801.
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[27] The witnesses all testified Ervin stopped in the middle of the intersection and 

shot at Hines’ truck. Ervin, himself, also agrees he did those things. Ervin did 

not have the right to be in the middle of the intersection blocking all traffic. No 

evidence was presented Hines provoked the interaction; rather, all evidence 

points to the fact Ervin instigated it and willingly pursued it. The existence of 

either of these facts negates Ervin’s claims of defense of property and defense of 

others. Therefore, without examining the final prong regarding reasonable fear 

of death or great bodily harm, we can unequivocally say the State met its 

burden to overcome Ervin’s claims because Ervin had no right to block traffic 

and Ervin instigated the situation. See, e.g., King v. State, 61 N.E.3d 1275, 1284 

(Ind. Ct. App. 2016) (State rebutted self-defense claim by presenting evidence 

King instigated the altercation), trans. denied.

[28] Nevertheless, if we examine whether Ervin could have had reasonable fear of 

death or great bodily harm, the State still overcame Ervin’s claims. When 

viewing a claim of self-defense, we look to both a subjective and objective 

component: “(1) a defendant must have actually believed that the use of force 

was necessary to protect himself or herself; and (2) the belief must have been 

one that a reasonable person would have held under the circumstances.” 

Schermerhorn v. State, 61 N.E.3d 375, 383 (Ind. Ct. App. 2016), trans. denied. 

[29] Ervin’s belief Hines had stolen his iPad was speculative—he did not see Hines 

steal it and he did not see Hines exercising unauthorized control over the iPad. 

Ervin’s decision to shoot a gun in the direction of not only the fleeing truck but 

also the group of people he now argues he was trying to protect is beyond the 
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scope of what a reasonable person would have believed necessary. No 

evidence, beyond Ervin’s subjective belief, was presented that anyone was in 

reasonable fear of death or great bodily harm from Hines. Ervin’s belief in his 

right to effectuate a citizen’s arrest in these circumstances was not only 

incorrect but his decision to do so in such a manner put more people at risk and 

was utterly unreasonable. 

[30] The State presented sufficient evidence to prove Ervin committed criminal 

recklessness and, in the process of presenting such evidence, overcame Ervin’s 

claims of defense of property and defense of others. See Huls v. State, 971 

N.E.2d 739, 747 (Ind. Ct. App. 2012) (State effectively overcame claim of 

defense when it presented evidence Huls “instigated and participated in the 

violence”), trans. denied.

Jury Instruction

[31] “The manner of instructing a jury is left to the sound discretion of the trial 

court.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied. 

When we review the trial court’s decision regarding jury instructions, we 

consider “(1) whether the tendered instruction correctly states the law; (2) 

whether there is evidence in the record to support the giving of the instruction; 

[and] (3) whether the substance of the tendered instruction is covered by other 

instructions which were given.” Davis v. State, 355 N.E.2d 836, 838 (Ind. 1976) 

(internal citations omitted). “When the claimed error is the failure to give an 

instruction . . . a tendered instruction is necessary to preserve error because, 
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without the substance of an instruction upon which to rule, the trial court has 

not been given a reasonable opportunity to consider and implement the 

request.” Scisney v. State, 701 N.E.2d 847, 848 n.3 (Ind. 1998) (emphasis in 

original). 

[32] A defendant in a criminal case is entitled to have the jury instructed on any 

theory of defense that has some foundation in evidence, Creager v. State, 737 

N.E.2d 771, 777 (Ind. Ct. App. 2000), trans. denied, even if the evidence is weak 

and inconsistent. Id. It is within the province of the jury to determine whether 

the defendant’s evidence was believable, unbelievable, or sufficient to warrant 

the use of force. Id. Generally, the determination whether a defendant acted in 

self-defense is a question of fact for the jury. Id. However, the evidence on 

which the claim is based must have some “probative value to support it.” Id. 

[33] Ervin claims the trial court abused its discretion when it refused to give the 

instructions regarding defense of property and defense of others. He argues that 

even though the trial court thought he had provoked the incident, he had 

presented enough evidence to support the instruction being read.

[34] As a matter of law, as discussed supra, Ervin could not have been acting in 

defense of his property or others as he was not in a place he was allowed to 

be—blocking an intersection—and as he instigated and provoked the situation. 

Therefore, the trial court properly declined to give Ervin’s proposed 

instructions. See id. at 778 (when evidence “supports the trial court’s conclusion 
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as a matter of law” that defendant was not in a place he or she was allowed to 

be, the trial court did not err in refusing to give a self-defense instruction).

Conclusion

[35] As the jury may have used the same evidence to support its verdict of guilt on 

both charges, we vacate the charge of Level 6 felony pointing a firearm. 

Because the State presented sufficient evidence of Level 5 felony criminal 

recklessness and overcame Ervin’s defense claims, we affirm that conviction. 

As a matter of law, Ervin was not in a place he was allowed to be and he 

instigated the situation, such that the trial court did not err when it refused to 

give jury instructions regarding defense of property and defense of others. 

Accordingly, we vacate in part and affirm in part.

[36] Vacated in part and affirmed in part. 

Baker, J., and Bailey, J., concur.