Creager v. State

• Decision Date: 17 October 2000
• Docket Number: No. 49A02-0001-CR-42.,49A02-0001-CR-42.
• Citation: 737 N.E.2d 771
• Parties: Jeremy CREAGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

737 N.E.2d 771

Jeremy CREAGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0001-CR-42.

Court of Appeals of Indiana.

October 17, 2000.

Janice L. Stevens, Marion County Public Defender, Indianapolis, Indiana, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Janet L. Parsanko, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

ROBB, Judge

Following a jury trial, Jeremy Creager was found guilty of involuntary manslaughter, a Class C felony, criminal confinement, a Class B felony, and residential entry, a Class D felony. The trial court later sentenced Jeremy to thirty-one years at the Indiana Department of Correction and ordered him to pay restitution in the amount of $100,000.00. Jeremy now appeals his convictions and the restitution order. We affirm in part and reverse and remand with instructions in part.

Issues

Jeremy raises the following consolidated and restated issues for our review:

1. Whether the trial court properly refused to tender a self-defense instruction to the jury;

2. Whether there was sufficient evidence to support Jeremy's conviction of criminal confinement conviction as a Class B felony;

3. Whether the trial court properly ordered Jeremy to pay restitution to the victim's ex-wife for the loss of child support past the date of sentencing;

4. Whether the trial court properly sentenced Jeremy to thirty-three years at the Indiana Department of Correction; and

5. Whether Jeremy was denied his right to an impartial judge during sentencing.

Facts and Procedural History

The facts reveal that Jeremy and Mary Creager were married in 1996, and shortly thereafter their marriage produced a daughter. On November 24, 1998, the trial court issued a no contact order prohibiting Jeremy from having contact with Mary as a result of the State charging Jeremy with a crime of violence against Mary.¹ During the early part of December of 1998, Mary informed Jeremy she needed her space and thus, Jeremy began moving his personal items from the marital residence. On December 4, 1998, Jeremy entered the marital residential without Mary's knowledge or consent and hid in an upstairs bedroom closet. Shortly thereafter, Mary, her daughter, and Patrick Johnson entered the marital residence. After putting her daughter to bed, Mary and Patrick proceeded to the master bedroom where they watched a video. At the conclusion of the video, Patrick began to give Mary a massage.

As Patrick was giving Mary a massage, Jeremy entered the bedroom and confronted Patrick and Mary while armed with a baseball bat and his combat knife. Subsequently, a struggle ensued between Patrick and Jeremy, with Jeremy striking Patrick several times with the baseball bat. As the two continued to struggle, Jeremy stabbed Patrick with the combat knife. Patrick than retreated to the bathroom and locked the door. Thereafter, Mary attempted to call 911 on her cell phone but Jeremy took the cell phone and threw it against the wall, breaking it. Subsequently, Jeremy bound Mary's feet and hands with a torn pillowcase. Jeremy then proceeded to repeatedly strike the door of the bathroom with the baseball bat in order to gain admittance to where Patrick was hiding.

During the melee, Mary was able to free herself from her bounds and escape to a neighbor's house. As Mary lay hidden in the neighbor's residence, Jeremy forcefully entered the home in an attempt to overtake Mary. However, Jeremy was unsuccessful in his attempt to locate Mary at the neighbors' residence. Thereafter, Jeremy proceeded back to the marital residence, retrieved his daughter, and fled to South Dakota where he was later apprehended. Patrick later died from his injuries.

Consequently, the State charged Jeremy with murder, robbery, and burglary, all Class A felonies, criminal confinement and invasion of privacy, both Class B felonies, and criminal confinement, a Class D felony. A jury later found Jeremy guilty of criminal confinement, a Class B felony, involuntary manslaughter, a Class C felony, and residential entry, a Class D felony. The trial court sentenced Jeremy to thirty-one years at the Indiana Department of Correction and ordered him to make restitution to Patrick's ex-wife, Denise Johnson, for lost child support in the amount of $100,000.00.² This appeal ensued.

Discussion and Decision

I. Self-Defense Jury Instruction

Jeremy first contends that the trial court erred in refusing to instruct the jury on self-defense. We disagree.

A. Standard of Review

A defendant is entitled to have the jury instructed correctly on an essential rule of law. Hill v. State, 615 N.E.2d 97, 99 (Ind.1993). The giving of jury instructions is a matter within the sound discretion of the trial court, and we review the court's refusal to give a tendered instruction for an abuse of that discretion. CSX Transp., Inc. v. Kirby, 687 N.E.2d 611, 616 (Ind.Ct.App.1997), trans. denied. Generally, we will reverse a trial court for failure to give a tendered instruction if: 1) the instruction is a correct statement of the law; 2) it is supported by the evidence; 3) it does not repeat material adequately covered by other instructions; and 4) the substantial rights of the tendering party would be prejudiced by failure to give it. Id. at 616-17.

B. Self-Defense Instruction

Jeremy argues that the trial court's refusal to give the jury his tendered instruction on self-defense denied him his right to present a defense and his right to have the jury determine the law and facts. The State argues that the trial court correctly refused to tender a self-defense instruction to the jury because the evidence did not support the giving of the instruction to the jury.

We note initially that a meritorious claim of self-defense eliminates the possibility that any crime has been committed. Gunn v. State, 174 Ind.App. 26, 365 N.E.2d 1234, 1239 (1977). The doctrine of self-defense is codified in Indiana Code section 35-41-3-2, which provides in pertinent part:

(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 the 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.

* * *

(d) Notwithstanding subsections (a), (b), and (c) of this section, a person is not justified in using force if:

(1) he is committing, or is escaping after the commission of, a crime;

(2) he provokes unlawful action by another person, with intent to cause bodily injury to the other person; or

(3) he has entered into combat with another person or is the initial aggressor, unless he withdraws from the encounter and communicates to the other person his intent to do so and the other person nevertheless continues or threatens to continue unlawful action.

The Indiana Supreme Court has held that when the defendant claims self-defense, he must prove three facts: (1) that he was in a place where he had a right to be; (2) that he acted without fault; and (3) that he had a reasonable fear or apprehension of death or great bodily harm. Miller v. State, 720 N.E.2d 696, 700 (Ind.1999). Once a defendant claims self-defense, the State bears the burden of disproving at least one of these elements beyond a reasonable doubt for the defendant's claim to fail. Sanders v. State, 704 N.E.2d 119, 123 (Ind.1999). The State may meet this burden by rebutting the defense directly, by affirmatively showing the defendant did not act in self-defense, or by simply relying upon the sufficiency of its evidence in chief. Lilly v. State, 506 N.E.2d 23, 24 (Ind.1987). Whether the State has met its burden is a question of fact for the jury. Birdsong v. State, 685 N.E.2d 42, 45 (Ind. 1997).

At trial, Jeremy submitted a self-defense instruction to the trial court. R. 138. However, the trial court refused to tender any self-defense instruction to the jury. We have previously held that a defendant in a criminal case is entitled to have the jury instructed on any theory of defense which has some foundation in evidence. Dayhuff v. State, 545 N.E.2d 1100, 1102 (Ind.Ct.App.1989). This rule applies even if the evidence is weak and inconsistent. Harrington v. State, 413 N.E.2d 622, 624 (Ind.Ct.App.1980). However, the evidence presented at trial must have some probative value to support it. Bragg v. State, 695 N.E.2d 179, 180 (Ind.Ct.App. 1998). Furthermore, 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. Dayhuff, 545 N.E.2d at 1102.

In the present case, the trial court determined that Jeremy was not entitled to a self-defense instruction because Jeremy was in a place where he had no right to be due to the no-contact order issued on November 24, 1998. See R. 138, 341, 601-03. Generally, the determination of whether a defendant acted in self-defense is a question of fact for the jury. Jordan v. State, 656 N.E.2d 816, 818 (Ind. 1995). However, we believe that the trial court did not err in determining as a matter of law that Jeremy was not in a place he was supposed to be, and thus, a self-defense instruction was not warranted.

Jeremy did not contest the facial validity of the no-contact order at trial or on appeal.³ However, he argues that the order was effectively nullified by his and Mary's actions; specifically, their consensual contact with each other after the trial court issued the order. The order provides in pertinent part that:

[Jeremy] IS ORDERED to have no contact with Mary Creager in person, by telephone or letter, through an intermediary, or in any other

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