Aug 21 2013, 5:27 am
FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ALICE L. BARTANEN BLEVINS GREGORY F. ZOELLER
ETHAN G. BARTANEN Attorney General of Indiana
Bartanen Law Office, LLC
Salem, Indiana MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOHN AARON SHOULTZ III, )
)
Appellant-Defendant, )
)
vs. ) No. 36A01-1208-CR-359
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE JACKSON CIRCUIT COURT
The Honorable William E. Vance, Judge
Cause No. 36C01-0905-MR-2
August 21, 2013
MEMORANDUM DECISION–FOR PUBLICATION
BAKER, Judge
In this case, appellant-defendant John Aaron Shoultz III’s cruelty toward animals
to control and manipulate those around him took a more sinister turn on the evening of
May 2, 2009. That evening, Shoultz decided to kill his mom’s new puppy, which she had
received as a gift from Shoultz’s dad after Shoultz had slit the throat of his mom’s beagle
a few weeks before. Shoultz’s girlfriend convinced him to duct-tape the dog’s legs
instead. When Shoultz’s father went to confront him, Shoultz shot him several times,
killing him.
Shoultz now appeals his convictions for Murder,1 a felony, and Unlawful
Possession of a Firearm by a Serious Violent Felon,2 a class B felony, raising numerous
arguments. More particularly, Shoultz contends that the trial court erred by allowing
testimony regarding prior acts of animal cruelty and an earlier conviction for battery with
a deadly weapon against his father. Additionally, Shoultz maintains that the trial court
erred by refusing to grant his oral request for a continuance to locate a witness. Further,
Shoultz alleges that the prosecutor committed misconduct and that the trial court erred by
refusing to give his proffered jury instructions. Finally, Shoultz argues that there is
insufficient evidence to sustain his conviction for murder in light of inconsistent witness
statements and his self-defense claim. Finding no error and sufficient evidence, we
affirm the judgment of the trial court.
1
Ind. Code § 35-42-1-1(1).
2
Ind. Code § 35-47-4-5(c).
2
FACTS
Andrea Howard and Shoultz3 began dating around October 2008, and shortly after,
they moved in with Shoultz’s mother and father, John and Rhonda Shoultz, in Tampico.
During the time that Andrea lived with Shoultz, she had a dog named Nightmare, and
Shoultz had a dog named Ring. When Andrea first moved in with the Shoultzes, Rhonda
had a beagle named Kane. Shoultz had an unusual hatred for small dogs, such as Kane.
Indeed, several weeks before the incident that is the subject of this appeal, Shoultz slit
Kane’s throat inside his parents’ home when Rhonda tried to break up an argument
between Shoultz and Andrea after Andrea told Shoultz that she wanted to move out.
Andrea did not leave Shoultz at that time because she feared him.
Although Shoultz had a vehement hatred for small dogs, this did not stop him
from killing larger breeds as well. Before slitting Kane’s throat, Shoultz took Andrea out
to the barn, gave her a gun, and told her to shoot one of his pit bull dogs that was tied up
in the barn and wagging its tail. When Andrea refused to do it, Shoultz took the gun, shot
and killed the dog and told Andrea that she had better do what he told her. This incident
also caused Andrea to fear Shoultz.
After Shoultz had killed Kane, John moved out for a few weeks, but returned with
a puppy for Rhonda which she named Tiny Tot. On the evening of May 2, 2009, Andrea
woke up after sleeping all day. After showering, she returned to the bedroom where
3
In the trial transcript, the defendant’s family name is spelled “Schultz,” but the rest of the record
indicates that the correct spelling is “Shoultz.” Consequently, we will use the latter spelling.
3
Shoultz began ranting about his mother having another dog and how he hated that dog.
Shoultz stated that he wanted to kill Tiny Tot, but Andrea dissuaded him from killing the
dog and suggested that instead, they tape the dog’s legs together. Shoultz agreed to this.
Andrea and Shoultz snuck into Rhonda’s bedroom where she was sleeping with
Tiny Tot, took the dog back to their bedroom, duct-taped the dog’s legs together, and
returned the dog to Rhonda, who was still sleeping. When Rhonda woke up and saw
what had happened to Tiny Tot, she began yelling angrily and woke John, who stated that
Shoultz and Andrea should not have done that to Tiny Tot.
Rhonda and John attempted to remove the duct tape from Tiny Tot, but their
efforts only caused the puppy pain. Andrea overheard John remark that he should do the
same thing to her and Shoultz’s dogs, so she gathered their dogs and brought them into
their bedroom. Andrea did not hear John make any threat against her or Shoultz. When
Andrea returned to the bedroom with the dogs, Shoultz was sitting on the bed facing the
door, holding a gun in both hands and pointing it towards the door. Andrea closed the
door when she returned with the dogs, and Shoultz locked the bedroom door. Shoultz
then returned to the bed and pointed the gun at the door.
John turned the door knob, and Shoultz told him to not enter the room, but John
opened the door and took several steps into the room, cradling Tiny Tot in his arms. John
did not have a weapon and did not say anything. Shoultz then fired four shots
approximately one to two seconds apart. John fell to the floor, and Shoultz knelt by his
father for a few seconds and told him to not die. Shoultz and Andrea then left their
4
bedroom to look for Rhonda but were unable to find her because she had fled and hid
when she heard the gunshots.
Shoultz suggested that they blame the shooting on Rhonda. Shoultz took
Rhonda’s car keys and cell phone from her purse and left the house with Andrea. Shoultz
used Rhonda’s cell phone to call his paternal grandmother, Mary Jane Johnson, and told
his grandmother that he had just shot his father. Following this cell phone call, Shoultz
walked back into his bedroom, stepped over his dying father who was gasping for air, and
retrieved his shoes so that he and Andrea could leave the house.
Shoultz hid the gun in the barn, and then he and Andrea drove away in Rhonda’s
van. Andrea called her mother and told her what had happened, but she did not believe
her daughter. Shoultz received a phone call from his grandmother or aunt. Shoultz told
the caller that Andrea had shot and killed John. Shoultz also called his aunt, Mona Lisa
Black, and told her that Andrea had killed John, shooting him ten times. Black asked
Shoultz if he had called 911, to which he responded that he had not because he feared that
he would be blamed. A short time later, police officers pulled over the van and took
Andrea and Shoultz into custody.
When North Vernon Police Officer Todd Beam conducted a pat-down search of
Shoultz, he recovered several knives and a latex glove containing several bullets.
Jackson County Deputy Sheriff Jeff Walters advised Shoultz of his rights and then
Shoultz blurted out that his mother and father had been arguing and that his mother shot
his father.
5
Shoultz and Andrea were separated, and at first, Andrea told the police that she
threw the gun under a pile of wood and that she had shot John. However, Andrea later
conveyed to the officers that Shoultz had shot his father.
Amy Burrows-Beckham, M.D., an assistant medical examiner in Kentucky,
performed an autopsy on John. Her examination revealed that John had sustained three
bullet wounds, one that entered his abdomen and two that entered the right side of his
chest. John had also sustained a bullet wound to his right hand that likely went through
his hand and into his abdomen. John further suffered a serious wound to his left foot that
was ulcerated, infected, and down to the bone. This wound would have caused John
serious pain, forcing him to walk with a significant limp. Tiny Tot did not escape the
attack unscathed; he was struck with a bullet in the leg while John was holding him.
The gunshot wound to John’s abdomen would not have caused death had he
received medical treatment; however, the gunshot wounds to the chest would have been
fatal in any event. Thus, John’s cause of death was from two gunshot wounds to his
chest, and the manner of death was homicide.
On May 6, 2009, the State charged Shoultz with Count I, murder, a felony; and
Count II, unlawful possession of a firearm by a serious violent felon, a class B felony.
On May 29, 2012, Shoultz filed a self-defense claim.
While in jail, Shoultz had a recorded telephone conversation with his mother,
Rhonda. During the conversation, Shoultz blamed Rhonda for having Tiny Tot in the
house. He told his mother that he had planned to kill Tiny Tot that night but that Andrea
6
had talked him into duct-taping the puppy instead. Shoultz also told his mother that he
needed Andrea to cooperate and that when he was out of jail, he would kill the new little
dog that she had, even if it meant going back to jail, because “I don’t give a f***. I don’t
like little dogs.” Tr. p. 229.
Shoultz’s jury trial commenced on June 4, 2012. Andrea testified for the State,
describing in detail the events surrounding Shoultz slitting Kane’s throat, shooting his
own pit bull, and shooting his father. Following the presentation of the State’s case-in-
chief, Shoultz verbally requested a continuance because he wanted to call Andrea as a
defense witness but was unable to find her at that time. The trial court denied Shoultz’s
request, concluding that the issues that Shoultz wished to question Andrea about had
already been covered by her earlier testimony. The trial court also determined that it was
not convinced that Andrea has been properly served with a subpoena because the defense
had served Andrea’s attorney in another case, and Andrea was not a party to the present
case.
Likewise, the trial court refused to give Shoultz’s self-defense instructions, but
instead, gave its own. On June 8, 2012, the jury found Shoultz guilty on both counts. On
July 16, 2012, the trial court sentenced Shoultz to fifty-eight years on the murder
conviction and to a concurrent term of fifteen years on the SVF conviction, for a total
aggregate sentence of fifty-eight years imprisonment. Shoultz now appeals.
7
DISCUSSION AND DECISION
I. Evidence Rule 404(b): Other Crimes, Wrongs, and Acts
Shoultz argues that the trial court erred by permitting testimony regarding his acts
of animal cruelty. Additionally, Shoultz contends that the trial court erred by allowing
testimony concerning prior violent acts that Shoultz had committed against his father in
2006.
Whether to admit or exclude evidence is within the sound discretion of the trial
court. Hardiman v. State, 726 N.E.2d 1201, 1203 (Ind. 2000). We will reverse the trial
court’s decisions regarding the admission or exclusion of evidence when it has been
demonstrated that the trial court abused its discretion, which occurs when the trial court’s
evidentiary ruling is clearly against the logic and effect of the facts and circumstances
before it. Id.
A. Waiver
As an initial matter, the State argues that Shoultz has waived any claim that the
trial court erred in admitting evidence of Shoultz’s prior bad acts of animal cruelty
because he failed to raise objections to this evidence when it was introduced at trial. The
failure to make a contemporaneous objection to evidence when it is offered waives any
claim of error in its admission on appeal. Bean v. State, 913 N.E.2d 243, 253 (Ind. Ct.
App. 2009). The reasoning behind this rule, in part, is to immediately and fully alert the
trial court of the legal issue. Id.
8
Shoultz challenges the admission of evidence pertaining to acts of cruelty inflicted
upon Kane and his own pit bull. Regarding Kane, Andrea testified that when Kane
followed Rhonda to break up an argument between Shoultz and Andrea, Shoultz told his
mother to “get that f***ing dog out of his room.” Tr. p. 49. Shoultz then stabbed Kane
“around its stomach,” after which Kane ran away “bleeding and yelping.” Id. at 49-50.
Shoultz then followed the dog, grabbed him “by the scruff of his neck and slit his throat.”
Id. at 50-51.
Not once during this emotionally-charged testimony did Shoultz lodge an
objection. Instead, Shoultz relies on a motion in limine filed before trial. However, “[a]s
a general rule, motions in limine do not preserve errors for appeal; the defendant must
reassert his objection at trial contemporaneously with the introduction of the evidence.”
White v. State, 687 N.E.2d 178, 179 (Ind. 1997). Consequently, Shoultz has waived this
claim as it pertains to Kane, his mother’s beagle.
Waiver notwithstanding, Andrea’s testimony reveals the intense conflict in the
home and is further evidence of Shoultz’s admitted hatred of small dogs. This was
followed a few weeks later by the torturing of Rhonda’s new Chihuahua puppy, another
small breed dog, and the murder of his father. This certainly is relevant to motive and
intent, particularly in light of the fact that Shoultz had asserted self-defense. See
Goldsberry v. State, 821 N.E.2d 447, 456 (Ind. Ct. App. 2005) (concluding that evidence
of prior altercations were admissible when the defendant had alleged self-defense,
9
placing his intent into issue, and frequent conflicts between the parties was relevant to
show motive).
Moving forward to Shoultz’s pit bull, during direct examination Andrea was asked
why she was so afraid of Shoultz such that she had initially taken the blame for John’s
murder. Andrea responded that Shoultz had taken her out to the barn where he had one
of his pit bulls chained and told her to shoot the dog. Andrea testified that the dog was
“[w]agging her tail” and that she “couldn’t do it.” Tr. p. 134. Shoultz took the gun and
shot the dog. Shoultz instructed Andrea that she needed to stand by him, and she stated
that she was afraid of him after that. Id.
While no objection was made during Andrea’s testimony, just prior to this
testimony, there was a brief recess during which the prosecutor brought to the attention of
the trial court an earlier “affirmative motion in limine” requesting that the State be
permitted to introduce testimony regarding the pit bull incident. Tr. p. 125. The
prosecutor requested that the trial court reconsider its previous denial of that motion in
light of questions that Andrea had been asked on cross-examination regarding her fear of
Shoultz. Both the prosecutor and defense counsel intensely expressed their positions
regarding the request. In light of the fact that the trial court was fully alerted as to the
precise legal issue, the purpose behind the contemporaneous objection rule has been
satisfied. Accordingly, these circumstances present a rare exception to that rule, and
Shoultz has not waived this issue on appeal.
10
B. The Pit Bull
Shoultz maintains that the trial court erred by allowing testimony concerning
cruelty that he displayed towards his pit bull. Rule 404(b) provides that
[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It
may, however, be admissible for other purposes, such as proof of motive,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident . . . .
“The list of other purposes is illustrative not exhaustive.” Hicks v. State, 690 N.E.2d
215, 219 (Ind. 1997).
In Hicks, our Supreme Court established the standard for assessing the
admissibility of 404(b) evidence:4 (1) the court must determine whether the evidence is
relevant to a matter at issue other than the defendant’s propensity to commit the charged
act; and (2) the court must balance the probative value of the evidence against its
prejudicial effect under Evidence Rule 403. Id. at 221.
Here, as stated above, the prosecutor argued that Andrea should be permitted to
testify regarding the pit bull incident because the defense had put Andrea’s fear of
Shoultz into issue. More particularly, the prosecutor stated:
I think that is relevant because the defense asked the following questions,
um, said once they were separated into different squad cars did she still
continue to tell the same story, did she still continue to, uh, to back the
story that John Aaron Schultz had brought up to the police and she said that
4
Although Shoultz suggests that the proper standard for assessing 404(b) claims is the one applied by the
United States Court of Appeals for the Seventh Circuit, appellant’s br. p. 16, our Supreme Court has
explicitly stated “We see no persuasive reason to adopt the Seventh Circuit test.” Hicks, 690 N.E.2d at
219. Accordingly, we will analyze Shoultz’s claims pursuant to the standard established by our Supreme
Court.
11
she did Um, that she did even after they were separated and then asked her
did my client ever threaten you to which, you know, on that day, to which
she said no, but at that point I believe that it becomes relevant when she’s
been threatened in the past . . . .
Tr. p. 126. And when the trial court granted the prosecutor’s request, it stated,
I do believe that once this witness is questioned concerning whether or not
she was threatened by the defendant that, uh, uh, that has to speak to
whether or not the witness has a reasonable fear and other evidence then to,
that’s she’s been impeached, if you will, on that and I believe that’s, that
evidence is relevant to, uh, deal with that.
Id. at 130 (emphasis added).
It is evident from the prosecutor’s argument and the trial court’s rationale for
permitting the testimony that the evidence was relevant to a matter other than Shoultz’s
propensity to commit murder, namely, to rehabilitate Andrea after her fear of Shoultz had
been placed into question by the defense on cross-examination. Accordingly, the
testimony survives the first prong of the Hicks test.
As for the second prong, under Rule 403, relevant evidence may be excluded “if
its probative value is substantially outweighed by the danger of unfair prejudice . . . .”
(Emphasis added). Here, Andrea had already testified that Shoultz had slit Kane’s throat
and that she had convinced him to duct-tape Tiny Tot’s legs instead of killing him, which
is what Shoultz had wanted to do. Tr. p. 51, 58. In light of fact that the jury had already
heard testimony regarding those two instances of animal cruelty and that Andrea’s fear of
Shoultz had been brought into issue by the defense, we cannot say that the probative
value of Andrea’s testimony regarding the pit bull incident was substantially outweighed
12
by the danger of unfair prejudice. Thus, her testimony survives the second prong of the
Hicks test, and the trial court did not err by permitting it.
C. Prior Violent Acts Against John
Shoultz argues that the trial court erred by allowing testimony regarding prior
violent acts that Shoultz had committed against his father. Although Shoultz concedes
that his conviction for battery with a deadly weapon is relevant for purposes of the jury to
determine whether he was a serious violent felon as charged in Count II, he argues that a
record of his conviction would have sufficed to prove this rather than a long line of
questioning by the prosecution that elicited details of the event.
Here, Rhonda testified that Shoultz “did cut his dad at one point, yes” and that she
had to take her husband to the hospital as a result of the injuries he sustained in that
attack. Tr. p. 221-22. Rhonda stated that Shoultz pleaded guilty and was convicted of
battery with a deadly weapon. Id. at 222. Shoultz did not object to any of this testimony.
After Rhonda gave this testimony, the prosecutor and the defense counsel had a
conference with the trial judge regarding the same incident. The prosecutor wanted to
tell the entire story including that Shoultz had shot his dad’s dog for urinating on the
floor, which is what had precipitated the fight. Tr. p. 357. Defense counsel objected to
any further details, arguing that they were too remote, occurring almost three years before
John was murdered. Ultimately, the trial court decided to not allow these additional
details, noting that there had been sufficient acts of animal cruelty brought to the
attention of the jury during the course of the trial.
13
Although the trial court ruled in Shoultz’s favor on this evidentiary issue, he
complains that Deputy Sheriff Adam Nicholson testified that Shoultz had told him that
“he took an action that he reasonably knew would anger his father[.]” Tr. p. 416.
Shoultz further argues that this question was used during closing argument to assert that
his prior act resulted in John being stabbed in the face with a knife. Appellant’s Br. p. 17.
Errors in the admission of evidence are generally to be disregarded unless they
affect the defendant’s substantial rights. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.
2012), reh’g denied. Here, the evidence presented through Deputy Sheriff Nicholson’s
testimony was merely cumulative of the testimony given by Shoultz’s mother, Rhonda.
Moreover, as discussed above, the altercation between John and Shoultz was
probative to the level of hostility between them. And it is difficult to maintain that the
probative value is substantially outweighed by the danger of unfair prejudice in that it is
tenuous indeed to assume that the jury made a connection between the “action that
[Shoultz] reasonably knew would anger his father,” appellant’s br. p. 17, and another
instance of animal abuse. Therefore, the evidence did not run afoul of Rule 404(b).
II. In-Trial Request for a Continuance
Shoultz next contends that the trial court erred by failing to grant his motion to
continue so that Shoultz could obtain the presence of a witness. More particularly,
Shoultz wanted the court to adjourn for the day so that he could locate Andrea and
present her as a witness.
14
Because Shoultz’s oral motion for a continuance made during the middle of his
jury trial did not comply with the statutory requirements of Indiana Code section 35-36-
7-1, which specifies the requirements necessary to postpone a trial because of the absence
of evidence, his continuance motion is non-statutory. As a result, a trial court’s rulings
on such motions are within its sound discretion. Hamilton v. State, 864 N.E.2d 1104,
1108-09 (Ind. Ct. App. 2007).
On appeal, we will review a trial court’s denial of a non-statutory continuance
motion only for an abuse of discretion and resultant prejudice. Barber v. State, 911
N.E.2d 641, 645-46 (Ind. Ct. App. 2009). An abuse of discretion occurs only where the
trial court’s decision is clearly against the logic and effect of the fact and circumstances
before the court. Washington v. State, 902 N.E.2d 280, 286 (Ind. Ct. App. 2009).
Additionally, the appellant must demonstrate that he was prejudiced by the denial.
Hamilton, 864 N.E.2d at 1109. `
Here, Shoultz asserts that he “believes that there was additional information that
was crucial to his defense that would have been covered during this examination and that
he should have been provided an opportunity to present said information.” Appellant’s
Br. p. 20. Shoultz does not elaborate on the nature of the information that would have
been elicited during his direct examination of Andrea or how it was crucial to his defense.
Thus, Shoultz has failed to establish prejudice.
Moreover, Shoultz did not try to personally serve Andrea with the subpoena, but
rather, faxed it to an attorney who was representing her in another case. Indiana Trial
15
Rule 4.1 provides that “[s]ervice may be made upon an individual, or an individual acting
in a representative capacity” by registered or certified mail, personally delivering a copy
of the subpoena, leaving a copy at her house, or serving his agent. See also Ind. Trial
Rule 45(C) (providing that service of subpoenas may be made in accordance with Trial
Rule 4). Here, the attorney to whom the subpoena was faxed was not acting as Andrea’s
representative in the instant matter. Additionally, the subpoena was not sent via certified
or registered mail or personal delivery. Consequently, we agree with the trial court that,
under these circumstances, Shoultz did not have a subpoena served on Andrea.
Accordingly, the trial court did not err by denying Shoultz’s motion for a continuance.
III. Prosecutorial Misconduct
Shoultz asserts several instances of prosecutorial misconduct, including:
Referencing the killing of animals as “murder.”
Informing the jury about the large amount of State resources spent on
Shoultz’s trial.
Playing a recorded jailhouse telephone conversation between Shoultz and
Rhonda where Shoultz states: “I’ll come back to jail, I don’t give a f***. I
don’t like little dogs.” Tr. p. 541.
Shoultz alleges that he did not waive these claims by failing to object and requesting a
mistrial because these instances of misconduct rose to the level of fundamental error.
Generally, to preserve a claim of prosecutorial misconduct, a defendant must
request an admonishment or a mistrial if an admonishment is inadequate. Castillo v.
State, 974 N.E.2d 458, 468 (Ind. 2012). Failure to follow these steps results in waiver.
Id.
16
Nevertheless, an appellant can attempt to avoid waiver by invoking the
fundamental waiver doctrine. Id. The fundamental error doctrine is extremely narrow.
Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). To be sure, it “applies only when the
error constitutes a blatant violation of basic principles, the harm or potential for harm is
substantial, and the resulting error denies the defendant fundamental due process.”
McQueen v. State, 862 N.E.2d 1237, 1241 (Ind. Ct. App. 2007).
As for the prosecutor describing as “murder” the two instances that Shoultz
brutally killed two helpless dogs, although that word is a legal term of art, Shoultz fails to
show error let alone grave peril. The reason is simple: We can rest assured that a jury of
Shoultz’s peers will not become entangled in a legal term of art. Instead, there is nothing
to indicate that the citizens of this State did not use common sense to understand that the
prosecutor’s use of the term “murder” referenced Shoultz’s senseless killing of two dogs
who were not showing the slightest bit of aggression.
Moving on to the prosecutor’s statements that the State had expended vast
amounts of resources in trying to bring Shoultz to justice, Shoultz has taken this
statement out of context. In an attempt to rebut a statement that the State had presumed
that this case was simply “trash killing trash,” tr. p. 546, the prosecutor wanted to assure
the jury that the case was adequately investigated. Specifically, the prosecutor stated
the defendant did a significant amount of forensic testing and spent a huge
amount of the state’s resources to make sure that witness testimony and
evidence gathered in this case were, in fact, backed up by scientific
evidence in this case so that the case was fully investigated and so that you,
the jury, would ultimately be comfortable about it.
17
Tr. p. 546.
It is apparent from the above statements that the prosecutor wanted to alleviate any
concerns that the jury might have harbored regarding the quality of the investigation in
light of the social status of the victim and the alleged perpetrator. This is not
impermissible, and indeed, we want the citizens of this State to be informed that crimes
are investigated with vigor regardless of social status. Consequently, there was no error.
Shoultz’s final claim of prosecutorial misconduct involves the telephone
conversation between him and Rhonda that was recorded while he was in jail and played
for the jury during closing argument. More particularly, Shoultz claims that the
prosecutor deliberately misstated that Shoultz had said to Rhonda, “I’ll come back and
kill ‘em,” when what he actually said was “I’ll come back to jail.” Tr. p. 541, 557. In
any event, the prosecutor explained to the jurors that it was up to them to decide what
Shoultz had said and that either version had the same effect, namely, that Shoultz did not
care about the consequences of his actions. Id. at 605. Under these circumstances, we
cannot say that the prosecutor committed misconduct.
IV. Jury Instructions
Shoultz asserts that the trial court erred by denying his proffered jury instructions
on self-defense. The State claims that Shoultz has waived this issue because he failed “to
set out in the argument section of his appellant’s brief the verbatim jury instructions and
18
the verbatim objections at trial regarding the relevant jury instructions.” Appellee’s Br.
p. 21.
Appellate Rule 46(A)(8)(e) provides that “[w]hen error is predicated on the giving
or refusing of any instruction, the instruction shall be set out verbatim in the argument
section of the brief with the verbatim objections, if any made thereto.” Shoultz concedes
that he failed to set out the instructions or the objections verbatim in the argument section
of his brief. Nevertheless, Shoultz points out that his proposed jury instructions and the
final jury instructions have been included in the Appellant’s Appendix to which he cites.
Additionally, Shoultz highlights the fact that he cited to portions of the record where the
relevant objections were made. Therefore, according to Shoultz, he has followed the
“spirit” of the Rule 46(A). Reply Br. p. 10.
While we encourage practitioners and others appearing before this Court to follow
the precise instructions of the Appellate Rules rather than simply the “spirit” of the Rules,
we also prefer to decide cases and issues on the merits. But even more applicable to the
instant case, Shoultz has impeccably cited to the appendix and transcript, thereby
permitting this Court to easily evaluate his claim. Therefore, Shoultz has not waived this
claim.
Proceeding to the merits, when determining whether the trial court erred in
refusing the defendant’s tendered instruction, this Court will look to whether: (1) the
tendered instruction correctly states the law; (2) there is evidence in the record to support
19
the giving of the instruction; and (3) the substance of the tendered instruction is covered
by other instructions. Sylvester v. State, 698 N.E.2d 1126, 1131 (Ind. 1998).
Here, the trial court gave the jury the following instruction on self-defense:
It is an issue whether the Defendant acted in self-defense. A person may
use reasonable force against another person to protect himself from what he
reasonably believes to be the imminent use of unlawful force. A person is
justified in using deadly force, and does not have a duty to retreat, only if
he reasonably believes that deadly force is necessary to prevent serious
bodily injury to himself. However, a person may not use force if: He is
committing a crime that is directly and immediately connected to the
confrontation giving rise to the self-defense claim or he provokes a fight
with another person with intent to cause bodily injury to that person. The
State has the burden of proving beyond a reasonable doubt that the
Defendant did not act in self-defense.
Appellant’s App. p. 13.
This instruction comports with statutory law, inasmuch as it tracks Indiana Code
section 35-41-3-2 (Self-Defense Statute). Moreover, it comports with applicable
caselaw. In Mayes v. State, our Supreme Court concluded that although a defendant may
be committing a crime at the time he is allegedly defending himself, this is not sufficient
to deprive the defendant of a self-defense instruction. 744 N.E.2d 390, 394 (Ind. 2001).
Instead, “there must be an immediate causal connection between the crime and the
confrontation.” Id. In other words, if the defendant had not committed the crime, the
confrontation with the victim and the resulting injury would not have occurred. Id.
By contrast, Shoultz’s tendered instructions did not mention the “committing a
crime” provision. Appellant’s App. p. 11-12. Accordingly, they were not correct
20
statements of the law applicable to this case, and the trial court did not err by refusing to
give them.
V. Sufficiency of the Evidence
Finally, Shoultz argues that the evidence was insufficient to sustain his conviction
for murder. When reviewing a challenge to the sufficiency of the evidence, this Court
neither reweighs the evidence nor judges the credibility of witnesses. Treadway v. State,
924 N.E.2d 621, 639 (Ind. 2010). Instead, we will consider only the probative evidence
and the reasonable inferences supporting the trial court’s verdict. Id.
Additionally, when a defendant claims self-defense and there is evidence in the
record that provides support for that claim, the State, has the burden to negate at least one
of the necessary elements of the self-defense claim beyond a reasonable doubt. Bryant v.
State, 984 N.E.2d 240, 250 (Ind. Ct. App. 2013). On appeal, the standard of review when
self-defense is claimed is the same as the sufficiency standard. Randolph v. State, 755
N.E.2d 572, 576 (Ind. 2001).
Shoultz makes two arguments, namely, that Andrea gave inconsistent statements,
and the evidence indicated that Shoultz acted in self-defense. The first is easily disposed
of because, as stated above, we do not judge the credibility of witnesses. Treadway, 924
N.E.2d at 639.
As for Shoultz’s claim of self-defense, to succeed on this claim, a defendant must
present evidence that he: (1) was in a place that he had a right to be in; (2) did not
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provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear
of death or great bodily harm. Bryant, 984 N.E.2d at 250.
In this case, Andrea testified that Shoultz wanted to kill his mother’s new puppy
but that she talked him into duct-taping its legs together instead to distract him and that
the two of them carried out this plan together. Tr. p. 57-61. This occurred in the context
of Shoultz having slit the throat of his mother’s beagle, and he knew how this incident
had upset his father. Id. at 48-54. Furthermore, Shoultz’s father had purchased the new
puppy for his mother after Shoultz had slit the beagle’s throat. Id. at 54-55.
From these facts, the factfinder could reasonably infer that Shoultz wanted to do
something terrible to the puppy to upset his parents, which he did. Then, knowing that
his father would confront him about the mistreatment of the puppy, Shoultz armed
himself and waited to ambush his unarmed father. Id. at 65-77. When John opened the
door and stepped into Shoultz’s room, he fired four shots at John, killing him. Id. at 74-
79. This evidence demonstrates that Shoultz instigated the violence that led to him
killing his father.
Nevertheless, Shoultz argues that a “simple practical joke on a Chihuahua could
not have been foreseen to escalate to the point which it did.” Reply Br. p. 11. Then
Shoultz asserts “[a] reasonable and expected response to such a prank would not have
involved the use of a deadly weapon and a violent entry into the Appellant’s room.” Id.
This argument is nothing short of absurd. It was Shoultz who used a deadly
weapon to kill his own father. Furthermore, to characterize duct-taping a helpless
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animal’s legs as a “practical joke” or a “prank” diminishes the seriousness of Shoultz’s
actions and is anything but humorous and perhaps a criminal offense. See Ind. Code §
35-46-3-12(c) (providing that a person who intentionally tortures a vertebrate animal
commits a class D felony). In any event, this argument fails.
CONCLUSION
The trial court did not err by allowing evidence concerning Shoultz’s prior acts of
animal cruelty and earlier conviction for battery with a deadly weapon against his father.
Additionally, the trial court did not err when it denied Shoultz’s oral request for a
continuance, insofar as Shoultz made no effort to personally serve the witness with a
subpoena and failed to show prejudice from the denial of the continuance. Further,
Shoultz has failed to demonstrate prosecutorial misconduct, and the trial court properly
refused his proffered jury instructions because they were not correct statements of the law
applicable to this case. Finally, the State presented sufficient evidence to sustain
Shoultz’s murder conviction and to negate his claim of self-defense, inasmuch as he
instigated the confrontation with his father.
The judgment of the trial court is affirmed.
FRIEDLANDER, J., and VAIDIK, J., concur.
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John Aaron Shoultz III v. State of Indiana
Combined Opinion