Ervin v. State
| Decision Date | 28 November 2018 |
| Docket Number | Court of Appeals Case No. 18A-CR-965 |
| Citation | 114 N.E.3d 888 |
| Parties | Larry ERVIN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff |
| Court | Indiana Appellate Court |
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
[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:
In addition, we address, sua sponte , whether Ervin was subjected to double jeopardy. We vacate in part and affirm in part.
[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 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.
[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.
[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 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 one-half years suspended.
[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 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. 2008). 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 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...
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