FOR PUBLICATION

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY GREGORY F. ZOELLER

Indianapolis, Indiana Attorney General of Indiana

MONIKA PREKOPA TALBOT

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

JAMAR WASHINGTON, )

)

Appellant-Defendant, )

)

vs. ) No. 49A02-1202-CR-79

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable James Osborn, Judge

Cause No. 49F15-1105-FD-30605

August 28, 2012

OPINION - FOR PUBLICATION

BARNES, Judge
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Case Summary

Jamar Washington appeals his convictions for Class D felony battery, Class A 

misdemeanor resisting law enforcement, and Class B misdemeanor disorderly conduct. 

We affirm and remand.

Issue

The sole contested issue in this appeal is whether the trial court properly instructed 

the jury.

Facts

On the evening of May 1, 2011, Washington went to a club in downtown 

Indianapolis while his live-in girlfriend, Dynasty Brown, stayed home with the couple’s 

children, including an eight-month-old boy. Sometime during the late evening of May 1 

and early morning of May 2, 2011, Brown received a Facebook message that included a 

picture of Washington with another woman at the club. After trying twice to call 

Washington, unsuccessfully, Brown decided to drive to the club with the eight-month-old 

boy and find Washington.

At approximately 3:00 a.m., Brown arrived at the club and saw Washington 

standing outside with the other woman, Deja Crayton. Brown, while carrying the eightmonth-old on her hip, approached Washington and Crayton and then first hit Washington, 

then Crayton, in the face. Brown then handed the eight-month-old to someone in the 

crowd after someone shouted, “Girl, give me your baby!” Tr. p. 73. Brown and Crayton 

then began fighting, with Washington attempting to break them up.
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Several Indianapolis Metropolitan Police Department officers were near the scene 

on “bar detail” and saw the Brown-Crayton-Washington altercation transpire. Id. at 68. 

Officer Cedric Young approached Brown from behind, picked her up, put her face down 

on the hood of a car, and attempted to handcuff her while she struggled. While Officer 

Young was attempting to handcuff Brown, Washington jumped on Officer Young’s back, 

put his arm around Officer Young’s neck, and started yelling, “Get off my baby mama, 

get off my baby mama.” Id. at 75. Officers Geoffrey Barbieri and Lisa Weilhamer 

attempted to assist Officer Young with Washington as he struggled, during which 

Washington caused Officer Weilhamer to fall backwards and hit her head on the 

pavement, causing a mild concussion. Offier Barbieri also fell and was kicked several 

times by Washington. Eventually, five officers were able to wrestle Washington to the 

ground and handcuff him. When Officer Young asked Washington why Washington had 

jumped on his back, Washington responded that he thought Brown was still holding his 

baby when Officer Young had forced her down onto the car hood.

The State charged Washington with Class D felony strangulation, three counts of 

Class D felony resisting law enforcement, three counts of Class D felony battery on a 

police officer resulting in injury, and one count of Class B misdemeanor disorderly 

conduct. The State later dismissed two of the battery counts. A jury trial was held on 

November 30, 2011. At Washington’s request the trial court gave a jury instruction 

regarding defense of a third person; it gave a pattern instruction on the topic and did not 

give two instructions tendered by Washington. The jury found Washington guilty of two 
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counts of Class A misdemeanor resisting law enforcement as lesser-included offenses of 

the D felony resisting charges, one count of Class D felony battery on a law enforcement 

officer, and Class B misdemeanor disorderly conduct. Washington was acquitted of the 

remaining counts. The trial court merged one of the resisting convictions into the battery 

convictions and sentenced Washington for one count of Class D felony battery, one count 

of Class A misdemeanor resisting law enforcement, and one count of Class B 

misdemeanor disorderly conduct. The abstract of judgment, however, states that 

Washington was convicted of Class D felony resisting law enforcement. Washington 

now appeals.

Analysis

The sole disputed issue in this case is whether the trial court properly instructed 

the jury regarding defense of a third person. Washington requested instructions on the 

issue with respect to his claim that he thought, albeit mistakenly, that Brown was still 

holding his son when Officer Young forced her onto the hood of the car and that his son 

might be crushed underneath. The manner in which a trial court instructs a jury is largely 

within the sound discretion of the trial court, and we review a trial court’s decision 

regarding instructions only for an abuse of that discretion. Orta v. State, 940 N.E.2d 370, 

376 (Ind. Ct. App. 2011), trans. denied. We must consider the following when reviewing 

a trial court’s refusal to give a defendant’s tendered jury instruction: (1) whether the 

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 
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covered by other instructions that are given. Lewis v. State, 898 N.E.2d 429, 433 (Ind.

Ct. App. 2008), trans. denied.

The trial court gave the following pattern jury instruction regarding defense of 

another person:

It is an issue whether the Defendant acted in defense of 

another person.

A person may use reasonable force against another person to 

protect someone else from what the Defendant reasonably 

believes to be the imminent use of unlawful force.

No person in this State shall be placed in legal jeopardy of 

any kind whatsoever for protecting a third person by 

reasonable means necessary.

The State has the burden of proving beyond a reasonable 

doubt that the Defendant did not act in defense of another 

person.

App. p. 131. This pattern instruction tracks the language of the self-defense and defense 

of another person statute, Indiana Code Section 35-41-3-2(a).

The trial court refused to give the following two instructions tendered by 

Washington, which were tendered defense instructions 3 and 4:

A man has a right to act upon appearances of actual 

and immediate danger if he sincerely believes such apparent 

danger exists. The danger need not be actual. It need be only 

apparent to a reasonable person under the circumstances. He 

will not be accountable for an error in judgment as to the need 

to use force or the amount of force necessary, provided he 

acted honestly. The law protects persons who feel compelled 

to act at such times even though in retrospect it is proved they 

have erred. The danger need not be actual but the belief must 

be in good faith and the reaction must be reasonable.
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App. p. 102.

With regard to the defense of another, the existence of 

the danger, the necessity or apparent necessity of using force, 

as well as the amount of force required to resist the attack can 

only be determined from the standpoint of the Accused at the 

time and under the then existing circumstances.

Ordinarily, one exercising the right to defense of 

another is required to act upon the instant and without time to 

deliberate and investigate, and under such circumstances a

danger which exists only in appearance, is as real and 

imminent to him as if it were actual.

A defender will not be accountable for an error in 

judgment as to the need to use force or amount of force 

necessary.

Id. at 103. Washington asserts that these additional instructions were necessary to 

adequately inform the jury that he could successfully claim defense of another, even if he 

was mistaken about Brown not holding his son when Officer Young attempted to restrain 

her.

On appeal, the State concedes that there was sufficient evidence that could have 

supported the giving of Washington’s tendered instructions. It also concedes that 

instruction 3 is a correct statement of the law, as its language comes from Franklin v. 

State, 266 Ind. 540, 544, 364 N.E.2d 1019, 1021 (1977). Franklin, however, concerned a 

review of the sufficiency of the evidence regarding a conviction, not the proper manner 

of instructing a jury. Our supreme court has said that simply because language appears in 
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an appellate opinion does not mean it is appropriate for a jury instruction. Ludy v. State, 

784 N.E.2d 459, 462 (Ind. 2003).

The State does not concede that tendered instruction 4 is a correct statement of the 

law, arguing that it focuses exclusively upon a defendant’s subjective state of mind when 

evaluating a claim of defense of another person. It points out that in Littler v. State, 871 

N.E.2d 276, 279, (Ind. 2007), our supreme court held “that the phrase ‘reasonably 

believes,’ as used in the Indiana self-defense statute, requires both subjective belief that 

force was necessary to prevent . . . injury, and that such actual belief was one that a 

reasonable person would have under the circumstances.” Arguably, this holding conflicts 

with tendered instructions 4’s language that a self-defense claim “can only be determined 

from the standpoint of the Accused . . . .” App. p. 103.

Even if instructions 3 and 4 both correctly stated the law and were supported by 

the evidence, the closer question in this case is whether their substance was adequately 

covered by the trial court’s giving of the pattern instruction regarding defense of another 

person. Initially, “we must note that the preferred practice is to use the pattern jury 

instructions.” Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied. 

We must, however, carefully consider our supreme court’s holding in French v. State, 

273 Ind. 251, 403 N.E.2d 821 (Ind. 1980). 

In French, a defendant claimed self-defense in a murder prosecution. The trial 

court gave the following instruction regarding the use of deadly force in self-defense: 
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A person is justified in using reasonable force against another 

person to protect himself or a third person from what he 

reasonably believes to be the imminent use of unlawful force. 

However a person is justified in using deadly force only if he 

reasonably believes that that force is necessary to prevent 

serious bodily injury to himself or a third person in the 

commission of a forcible felony.

French, 273 Ind. at 255, 403 N.E.2d at 824. Our supreme court held this instruction to be 

inadequate and its inadequacy to be reversible error, stating:

At no point in the instructions given was the jury informed 

that in the exercise of the right, a defender may repel force by 

force reasonably necessary and that he will not be 

accountable for an error in judgment as to the amount of force 

necessary, provided he acted honestly. Neither did the court’s 

instructions apprize the jury that the existence of the danger, 

the necessity or apparent necessity, as well as the amount of 

force required to resist the attack can only be determined 

from the standpoint of the defendant, at the time and under 

the then existing circumstances.

Id. at 256, 403 N.E.2d at 825. Our supreme court has never expressly overruled French. 

Taken at face value, French might have required more expansive jury instructions than 

the pattern instruction the trial court here gave, including at least some of the language in

the instructions Washington tendered.

In Shaw v. State, 534 N.E.2d 745 (Ind. 1989), our supreme court addressed a case 

in which the jury was given the following self-defense instructions:

A person is justified in using reasonable force against another 

person to protect herself from what she reasonably believes to 

be the imminent use of unlawful force. However, a person is 

justified in using deadly force only if she reasonably believes 

that the force is necessary to prevent serious bodily injury to 

herself or the commission of a forcible felony. No person in 
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this state shall be placed in legal jeopardy of any kind 

whatsoever for protecting herself by reasonable means 

necessary. 

There are three (3) requirements for self defense when deadly 

force is used: 

(1) The defendant must have acted without fault;

(2) The defendant must have had a right to be where she 

was; and, 

(3) The defendant must have reasonably believed that she 

was in immediate danger of death or serious bodily harm. 

Once a claim of self defense is raised, the State bears the 

burden of disproving the existence of one of these elements 

beyond a reasonable doubt. . . .

Although threats alone are not sufficient to justify an assault, 

a threat at a time when there is the present ability to assault, 

and under circumstances which lead a person in good faith 

reasonably to believe that he is about to be seriously injured 

or killed is sufficient on the theory of self defense.

In Shaw, the defendant argued that these instructions were insufficient under French

because they did not explicitly advise the jury that they had to evaluate the self-defense 

claim based on how the situation appeared to be to the defendant, rather than what the 

actual facts were. Indeed, these jury instructions do not include the language that the 

French opinion seemed to hold was required. Regardless, the Shaw opinion held that the 

jury instructions there went beyond those disapproved of in French and were sufficient. 

Shaw, 534 N.E.2d at 747. The court stated:

[T]he jury was repeatedly told that the standard to be 

considered by the jury was the reasonable belief of the 
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defendant. . . . We cannot see how such language could be 

interpreted by a jury in any manner other than that the 

standard to be used was the state of mind of the defendant at 

the time of the infliction of the injury.

Id. 

Relying upon Shaw’s “clarification” of French, this court subsequently approved 

the giving of a pattern jury instruction on self-defense that was in all relevant respects 

identical to the instruction given here. See Davis v. State, 691 N.E.2d 1285, 1289-90 

(Ind. Ct. App. 1998).1 Indeed, it is difficult to read Shaw as anything other than an 

implicit disapproval of French, at least to the extent French holds that a jury must be 

instructed that a defendant claiming self-defense or defense of another “will not be 

accountable for an error in judgment as to the amount of force necessary, provided he 

acted honestly,” and that the reasonableness of a defendant’s actions “can only be 

determined from the standpoint of the defendant, at the time and under the then existing 

circumstances.” French, 273 Ind. at 256, 403 N.E.2d at 825. Rather, we believe Shaw

held that it is sufficient to clearly instruct a jury that a defendant claiming self-defense or 

defense of another must have acted “reasonably.” The pattern instruction given to the 

jury here did so. As such, we conclude that the substance of the instructions tendered by 

Washington was adequately covered by the instruction given by the trial court, meaning 

the trial court did not abuse its discretion in refusing to give those instructions.

 

1 The instruction in Davis included language regarding the use of deadly force and defense of one’s 

dwelling or curtilage, neither of which were at issue in this case. 
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Although we affirm Washington’s convictions, the State concedes that the trial 

court made a clerical error on the abstract of judgment. It states that Washington was 

convicted of Class D felony resisting law enforcement. The actual judgment of 

conviction, however, states that Washington was convicted of Class A misdemeanor 

resisting law enforcement. We therefore remand for the trial court to enter a corrected 

abstract of judgment accurately reflecting that Washington was convicted of Class A 

misdemeanor resisting law enforcement.

Conclusion

The trial court did not abuse its discretion in instructing the jury, and we affirm 

Washington’s convictions. However, we remand for correction of the abstract of 

judgment.

Affirmed and remanded.

VAIDIK, J., and MATHIAS, J., concur.