Aug 11 2014, 10:39 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
HILARY BOWE RICKS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
KATHERINE MODESITT COOPER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DWIGHT HAYES, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1312-CR-619
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Sheila Carlisle, Judge
The Honorable Stanley Kroh, Commissioner
Cause No. 49G03-1306-FC-41614
August 11, 2014
OPINION - FOR PUBLICATION
BARNES, Judge
Case Summary
Dwight Hayes appeals his conviction for Class A misdemeanor pointing a firearm.
We affirm.
Issue
Hayes raises one issue, which we restate as whether the trial court properly
rejected his proposed jury instruction.
Facts
On April 23, 2013, Natasha McDaniel, who owns a litigation service support
business, was attempting to serve legal documents on Hayes at a home in Indianapolis
with NO TRESPASSING signs posted in the front windows. McDaniel parked her
pickup truck, which had signs identifying her company name, an email address, and a
P.O. box number, on the street in front of the house. While a friend waited in the truck,
McDaniel approached the house through a gate in a waist-high chain-link fence adjacent
to the public sidewalk and knocked on the front door. When no one answered the door,
McDaniel asked her friend to take a picture of the address so McDaniel could document
her attempt to serve Hayes. After the picture was taken, McDaniel returned to her truck,
which was still parked on the street, and began completing her paperwork.
As McDaniel was completing the paperwork, a man walked into the front yard
holding a gun in each hand. McDaniel got out of the truck and approached the man while
remaining on the public sidewalk. McDaniel asked the man if he was Hayes, and he
answered “yes.” Tr. p. 37. McDaniel told him she had legal documents to serve on him.
Hayes became belligerent, pointed the guns at McDaniel, and told her to get off his
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property. McDaniel informed Hayes that she was on a public sidewalk and did not open
the gate to his yard. Hayes told McDaniel that he would shoot her if she came back
without the police. McDaniel returned to her truck, completed her paperwork, and left.
Eventually, the State charged Hayes with Class C felony intimidation and Class D
felony pointing a firearm. During the jury trial, Hayes requested that the jury be
instructed as follows:
It is an issue whether the Defendant acted in defense of
his dwelling or adjoining property.
A person may use reasonable force, including deadly
force, against another person, and does not have a duty to
retreat, if he reasonably believes that the force is necessary to
prevent or terminate the other person’s unlawful entry of or
attack on his dwelling, the land adjoining his dwelling,
including buildings, used for domestic purposes, or his
occupied motor vehicle.
The State has the burden of proving beyond a
reasonable doubt that the Defendant did not act in defense of
his dwelling, the land adjoining his dwelling, including
buildings, used for domestic purposes, or his occupied motor
vehicle.
App. p. 185. Although the trial court agreed that the proposed instruction was a correct
statement of law, the trial court rejected the instruction because it was not supported by
the evidence. The jury found Hayes not guilty of the intimidation charge and guilty of
the lesser-included offense of Class A misdemeanor pointing a firearm. Hayes now
appeals.
Analysis
Hayes argues that the trial court improperly rejected his proposed jury instruction.
Instructing a jury is left to the sound discretion of the trial court, and its decision is
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reviewed only for an abuse of discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind.
2013). In determining whether a trial court has abused its discretion in rejecting a
proposed instruction, we first determine whether the instruction is a correct statement of
the law. Id. Then we examine the record to determine whether there was evidence
present to support the instruction. Id. at 345-46. Finally, we determine whether the
substance of the instruction was covered by another instruction or instructions. Id. at
346.
Indiana Code Section 35-47-4-3 provides:
(a) This section does not apply to a law enforcement officer
who is acting within the scope of the law enforcement
officer’s official duties or to a person who is justified in using
reasonable force against another person under:
(1) IC 35-41-3-2; or
(2) IC 35-41-3-3.
(b) A person who knowingly or intentionally points a firearm
at another person commits a Class D felony. However, the
offense is a Class A misdemeanor if the firearm was not
loaded.
Indiana Code Section 35-41-3-2(d) provides:
A person:
(1) is justified in using reasonable force, including deadly
force, against any other person; and
(2) does not have a duty to retreat;
if the person reasonably believes that the force is necessary to
prevent or terminate the other person’s unlawful entry of or
attack on the person’s dwelling, curtilage, or occupied motor
vehicle.
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Hayes contends that the State’s witness and a photograph of Hayes’s house was
sufficient to establish that he believed he needed to prevent an unlawful re-entry onto his
property. We disagree. Although McDaniel had knocked on Hayes’s front door in an
effort to serve him with legal documents, she had returned to her truck and was
completing paperwork when Hayes arrived in the front yard with two guns. At that point,
McDaniel got out of her truck to talk to Hayes but remained on the public sidewalk at all
times. Her friend testified she was 100% sure that McDaniel did not try to open the gate
again. There simply is no evidence that McDaniel was attempting to attack or unlawfully
enter Hayes’s property when Hayes pointed the guns at McDaniel.
As for Hayes’s argument that McDaniel unlawfully entered his property in
violation of the posted NO TRESPASSING signs in the front windows of his house, even
if such signs were sufficient to prohibit McDaniel from knocking on the front door,
McDaniel had returned to her truck when Hayes approached with a gun in each hand.
Only then did McDaniel get out of her truck and talk to Hayes while remaining on the
public sidewalk. Hayes’s conduct was not necessary to prevent or terminate McDaniel’s
entry onto his property. Furthermore, Hayes’s reliance on Jadrich v. State, 999 N.E.2d
1022, 1030 (Ind. Ct. App. 2013), is misplaced because that case involved the propriety of
a police officer’s entry into a fenced-in backyard, which was marked with NO
TRESPASSING signs and instructed visitors to use the front door only, in an attempt to
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serve a civil protective order. That is not the case here. Hayes has not established that
the trial court abused its discretion in denying his proposed instruction.1
Conclusion
Because the evidence did not support Hayes’s proposed instruction, the trial court
did not abuse its discretion in rejecting it. We affirm.
Affirmed.
BRADFORD, J., and BROWN, J., concur.
1
Hayes’s Reply Brief ends abruptly on page 2. We have addressed the arguments that were presented to
us.
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