Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-149 | January 29, 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.

ATTORNEYS FOR APPELLANT

Joel M. Schumm

E.J. Last, Certified Legal Intern

Appellate Clinic

Indiana University Robert H. McKinney 

School of Law

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Eric P. Babbs

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Donald Wilson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

January 29, 2016

Court of Appeals Case No.

49A05-1504-CR-149

Appeal from the Marion Superior 

Court

The Honorable Clayton A. 

Graham, Judge

The Honorable Steven J. Rubick, 

Magistrate

Trial Court Cause No.

49G07-1408-CM-40244

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-149 | January 29, 2016 Page 2 of 6

[1] Donald Wilson was convicted after a jury trial of two counts of Class A 

misdemeanor battery.1

 As the jury instruction Wilson challenges was not an 

abuse of discretion, we affirm. 

Facts and Procedural History

[2] Wilson was involved in an altercation with another concertgoer outside a show 

in Indianapolis. Security guards responded. Cory Berg took hold of Wilson’s

arm and wrist and took him toward the lobby. Wilson pivoted toward Berg and 

placed him in a chokehold. Wilson and Berg then went to the ground and Berg 

hit Wilson. Another guard, Stephen Garrison, applied force to a pressure point 

behind Wilson’s ear, and then Berg was able to escape the chokehold. 

[3] Berg and Garrison held Wilson on the ground, then placed him in a chair in the 

lobby. After Garrison and another guard, Logan Cooper, questioned Wilson, 

Wilson became agitated and jumped from the chair. He shoved Garrison and 

tried to flee. Garrison and Cooper restrained Wilson. Wilson kicked Garrison 

in the crotch, causing him pain. An Indianapolis police officer arrived and 

handcuffed Wilson.

[4] The State charged Wilson with two counts of battery, one alleging Berg was the 

victim and the other alleging Garrison was the victim. At his trial Wilson 

claimed self-defense and the trial court, over Wilson’s objection, gave the jury 

 

1

 Ind. Code § 35-42-2-1. 
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an instruction the State tendered regarding circumstances in which a person 

may not claim he used force in self-defense. 

[5] The jury was instructed that: 

A person may use reasonable force against another person to 

protect himself from what the defendant reasonably believed to 

be the imminent use of unlawful force.

However, a person may not use force if:

 He is committing a crime that is directly and immediately 

connected to the battery.

 He is escaping after the commission of a crime that is directly 

and immediately connected to the battery. 

(App. at 73.) The jury found Wilson guilty as charged. 

Discussion and Decision

[6] The manner of instructing a jury is left to the sound discretion of the trial court.

Henderson v. State, 795 N.E.2d 473, 477-78 (Ind. Ct. App. 2003), reh’g denied, 

trans. denied. The trial court’s ruling will not be reversed unless the instructional 

error is such that the charge to the jury misstates the law or otherwise misleads 

the jury. Id. Jury instructions must be considered as a whole and in reference 

to each other. Id. In determining whether a defendant suffered a due process 

violation based on an incorrect jury instruction, we consider other relevant 

information given to the jury, including closing argument. Id. 
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[7] Wilson argues the trial court’s jury instruction was not “legally correct,” 

(Appellant’s Br. at 3), relying in part on Henderson. In Henderson, we

determined an instruction similar to the one Wilson challenges was an 

incomplete statement of the law. Id. at 479. The Henderson instruction was: 

The defense of self-defense is defined by law as follows: 

A. 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 force is necessary to prevent serious 

bodily injury to himself 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 himself or his 

family by reasonable means necessary. A person is not justified 

in using force if: 

1. He is committing, or is escaping after the commission of, a 

crime.

Id. at 477-78. 

[8] The instruction as given was an incomplete statement of the law because it did 

not explain to the jury that there must be a causal connection between the crime 

and the confrontation in order to preclude a finding of self-defense. Id. at 479-

80. Ind. Code § 35-41-3-2 provides “a person is not justified in using force if . . . 

the person is committing or is escaping after the commission of a crime.” We 

noted in Harvey v. State, 652 N.E.2d 876, 877 (Ind. Ct. App. 1995), reh’g denied, 

trans. denied, that if the statutory self-defense limitation were to be taken 
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literally, then no person could claim self-defense if that person, at the time he 

acted, was 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.” Id. We determined the legislative 

intent was to preclude the defense where it is sought by one who was actively 

engaged in the perpetration of a crime, and that criminal activity produced the 

confrontation wherein the force was employed. Id. 

[9] Henderson is distinguishable, as the instruction to Wilson’s jury explicitly 

informed the jury a causal connection between the crime and the confrontation 

was necessary in order to preclude a finding of self-defense. Wilsons’s jury was 

instructed that a person may use reasonable force to defend himself unless he is 

“committing a crime that is directly and immediately connected to the battery,” or is 

“escaping after the commission of a crime that is directly and immediately 

connected to the battery.” (App. at 73) (emphasis added). As Wilson’s jury was 

told there must be a causal connection, we cannot find the instruction was an 

abuse of discretion on that ground. 

[10] Wilson also argues the instruction was error because there was no evidence in 

the record he was committing another crime or escaping after the commission 

of a crime. There was evidence of both. Wilson committed battery when he 

placed Berg in a chokehold, then he committed a second battery when he tried 

to flee the lobby and kicked Garrison. The batteries were charged separately 

and the jury could properly infer Wilson shoved and kicked Garrison when he 
Court of Appeals of Indiana | Memorandum Decision 49A05-1504-CR-149 | January 29, 2016 Page 6 of 6

was trying to escape after attacking Berg. The defense of self-defense is 

unavailable if there is evidence that “but for the defendant committing a crime, 

the confrontation resulting in injury to the victim would not have occurred.” 

Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001). There was evidence that but 

for the battery of Berg, the confrontation resulting in injury to Garrison would 

not have occurred. The instruction was not error. 

Conclusion

[11] As the instruction Wilson challenges was neither inaccurate nor incomplete, 

and there was evidence to permit giving it, we affirm Wilson’s convictions. 

[12] Affirmed. 

Najam, J., and Riley, J., concur.