FOR PUBLICATION
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
JUNE E. BULES
Plymouth, Indiana
STEVE CARTER
Attorney General of Indiana
MARA MCCABE
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GREGORY A. HARMON,
Appellant-Defendant,
vs.
STATE OF INDIANA,
Appellee-Plaintiff.
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No. 50A03-0511-CR-544
APPEAL FROM THE MARSHALL SUPERIOR COURT
The Honorable Robert O. Bowen, Judge
Cause No. 50D01-0312-FA-14
June 26, 2006
OPINION - FOR PUBLICATION
BAILEY, Judge
Case Summary
Appellant-Defendant Gregory A. Harmon (“Harmon”) appeals his conviction for
unlawful possession of a firearm by a serious violent felon, a Class B felony. 1 We reverse
and remand for a new trial.
Issue
Harmon presents one issue for review, which we restate as whether the trial court
abused its discretion by excluding self-defense evidence in the second phase of his bifurcated
trial. 2
Facts and Procedural History
In Argos, Indiana, Audrey and John Cavinder manage a piece of property, which
includes a house as well as an apartment connected to a garage. In November of 2003,
Theresa Marzean rented the house and lived there with Harmon, her fiancé. Mike Palm
rented the apartment and lived there with his significant other and their baby. 3
On November 26, 2003, Harmon, who works as a truck driver, returned home and
parked his semi-tractor in the driveway. At approximately 5:30 p.m., Palm came over and
1
Ind. Code § 35-47-4-5(c).
2
Harmon frames the issue in terms of the trial court’s granting of the State’s motion in limine, but the issue is
actually whether the trial court abused its discretion by excluding evidence at trial. The granting of a motion
in limine does not determine the ultimate admissibility of the evidence. Howard v. State, 816 N.E.2d 948,
960 (Ind. Ct. App. 2004), reh’g denied. Rather, a ruling in limine is meant to prevent the presentation of
potentially prejudicial evidence until the trial court can rule on the admissibility of the evidence in the context
of the trial itself. Id. at 961. To preserve an issue for appellate review, a defendant must make an offer to
prove, setting forth the grounds for admission of the evidence and the relevance of the testimony. Ind.
Evidence Rule 103(a); West v. State, 755 N.E.2d 173, 184 (Ind. 2001). Because Harmon made an offer to
prove, we proceed with the issue as restated.
3
We respectfully use the term “significant other” because the record is unclear whether Palm is married or
engaged to the baby’s mother.
2
asked Harmon to move the semi-tractor so that Palm could park in the drive. Harmon
obliged. Palm subsequently went to the Cavinder residence and spoke to Audrey, while John
was upstairs. Audrey went to discuss the parking situation with Harmon and Marzean. After
Audrey left, John came downstairs and learned from Palm that there was a parking issue and
also that Harmon had allegedly threatened to kill Palm and his family. John, therefore, drove
himself and Palm to Marzean’s house to discuss these issues with Harmon. John arrived
before his wife, and a fight soon broke out involving John, Harmon, Theresa, and Palm.
Audrey joined the altercation upon her arrival. At some point, Harmon entered the house,
ran back outside, and got into his semi-tractor. He then jumped out and fired one shot from a
handgun.
In its amended charging information, the State charged Harmon with Count I,
Attempted Voluntary Manslaughter, a Class A felony; 4 Count II, Criminal Recklessness, a
Class D felony; 5 Count III, Disorderly Conduct, a Class B misdemeanor; 6 and Count IV,
Unlawful Possession of a Firearm by a Serious Violent Felon, a Class B felony.7 The trial
court ordered Count IV bifurcated from the other counts. The State filed a motion in limine,
requesting the trial court to enter an order prohibiting Harmon from arguing self-defense as a
defense to Unlawful Possession of a Firearm by a Serious Violent Felon.
4
Ind. Code §§ 35-41-5-1, 35-42-1-3(a).
5
Ind. Code § 35-42-2-2(b)(1)(2).
6
Ind. Code § 35-45-1-3(1).
7
Ind. Code § 35-47-4-5(c).
3
On June 14, 2005, a jury trial commenced for Counts I-III. John testified that, when
he arrived at Marzean’s house, he walked up to the porch and, the next thing he knew,
Harmon opened the door and put him in a headlock. Audrey and John testified that Harmon
later pointed a gun at John, fired one shot, and, thereafter, John got his shotgun from his own
truck.
In contrast, Harmon testified that John came running up to the porch and began
beating on the glass, asking Harmon if he wanted some of John and if he had a problem.
John allegedly then began poking Harmon. When Harmon finally pushed John’s hand away,
John lunged at him and a fight ensued. After wrestling with John, Harmon ran into the house
to find “something to protect [himself] and try to break the whole mess up because Theresa
was on the ground at that point with Audrey on her.” Tr. at 269. While inside, he looked out
a window and saw John retrieve a shotgun from John’s vehicle. Consequently, Harmon went
to the bedroom and obtained Theresa’s gun. He then ran out to his semi-tractor to obtain a
cell phone and, while inside the semi-tractor, saw John heading toward the porch pointing the
shotgun at Theresa, so he jumped out and “fired a shot in the air and then . . . threw the pistol
to get John’s attention.” Tr. at 270. Marzean also testified that Harmon fired a shot to
protect her from John, who was walking toward the house with his shotgun in hand.
The jury found Harmon not guilty of Count I, Attempted Voluntary Manslaughter and
Count II, Criminal Recklessness, but guilty of Count III, Disorderly Conduct. At the end of
the first phase of trial, the court heard arguments on the State’s motion in limine and
concluded that the crime of unlawful possession of a firearm by a serious violent felon is
4
properly viewed “more as like [a] status offense almost . . . .” Appellant’s App. at 37; Tr. at
317. The trial court granted the State’s motion in limine, thereby precluding Harmon from
presenting any self-defense evidence. The jury convicted Harmon of Count IV, Unlawful
Possession of a Firearm by a Serious Violent Felon. He now appeals.
Discussion and Decision
Standard of Review
The thrust of Harmon’s argument on appeal is that the trial court abused its discretion
by excluding evidence of self-defense. 8 The evidentiary rulings of a trial court are afforded
great deference on appeal and are overturned only where the trial court abuses its discretion.
Howard v. State, 816 N.E.2d 960, 961 (Ind. Ct. App. 2004), reh’g denied.
Analysis
I. Exclusion of Self-Defense Evidence
A valid claim of self-defense is a legal justification for an act that is otherwise defined
as “criminal.” Ind. Code § 35-41-3-2(a); see also Pinkston v. State, 821 N.E.2d 830, 842
(Ind. Ct. App. 2004), trans. denied. To prevail on such a claim, the defendant must show that
he or she: (1) was in a place where the defendant had a right to be; (2) did not provoke,
instigate, or participate willingly in the violence; and (3) had a reasonable fear of death or
great bodily harm. Pinkston, 821 N.E.2d at 842. An individual is justified in using deadly
force only if he or she “reasonably believes that that force is necessary to prevent serious
bodily injury to [the individual] or a third person.” I.C. § 35-41-3-2(a). The amount of force
5
that an individual may use to protect himself or herself must be proportionate to the urgency
of the situation. Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct. App. 1999). When a
person uses more force than is reasonably necessary under the circumstances, the right of
self-defense is extinguished. Id.
When a defendant asserts a claim of self-defense, as Harmon attempted to do during
phase two of his bifurcated trial, any evidence legitimately tending to support his theory is
admissible. See Brand v. State, 766 N.E.2d 772, 780, 781 (Ind. Ct. App. 2002), trans. denied.
Indeed, a defendant is denied the right to exercise reasonable force in response to an attack
when he or she is not permitted to present evidence relevant to a claim of self-defense. Id. at
781. Such evidence must imply a propensity for violence on the part of the victim. Id. at
780. While the victim’s threats or violence need not be directed toward the defendant, the
latter must have knowledge of these matters at the time of the confrontation between the
victim and the defendant. See id. A defendant’s belief of apparent danger does not require
the danger to be actual danger, but the belief must be in good faith. Id. at 781. The question
of the existence of such danger, the necessity or apparent necessity, and the amount of force
necessary to employ to resist the attack can only be determined from the standpoint of the
defendant at the time and under all the then existing circumstances. Id. Focusing on the
“standpoint of the defendant” means at least two things: (1) the trier of fact must consider
the circumstances only as they appeared to the defendant; and (2) the defendant’s own
account of the event, although not required to be believed, is critically relevant testimony. Id.
8
Indiana Code Section 35-47-4-5(c) prohibits a serious violent felon from knowingly or intentionally
possessing a firearm. Harmon does not contest that he is a serious violent felon, nor does he dispute that he
6
In Brand, the defendant (Brand) fatally shot someone during a fight and, at trial,
argued that he reasonably believed deadly force was necessary to protect himself. Id. at 777.
Although the trial court permitted Brand to testify as to the events and his general fear and
apprehension, it refused to admit evidence of prior events and facts that formed the basis for
Brand’s reasonable fear. Id. On appeal, Brand argued that such evidence should have been
admitted, and a panel of this Court agreed. Id. at 778. Brand’s proffered evidence
demonstrated that the victim sold drugs, was a gang member, and had previously offered to
sell Brand a firearm. Id. at 780. This, we concluded, implied that the victim had access to a
firearm and was inclined toward violent behavior. Id. Further, it related to the victim, and
the record suggested that Brand had knowledge of these matters before the fatal shooting. Id.
This evidence, in addition to evidence of the victim’s aggression (i.e., during the fight),
satisfied the foundational requirements for the admission of evidence to permit an inference
that Brand’s fear was reasonable. Id. at 781. We also concluded that the offered evidence
highlighted Brand’s thought processes during the fatal event and was relevant regardless of
whether Brand was in actual danger, especially since the jury was required to examine the
self-defense claim from Brand’s perspective. Id. We held that “[t]he jury should have been
afforded the opportunity to consider the circumstances surrounding the fatal shooting as they
appeared to Brand.” Id.
Here, Harmon’s offered evidence was similar to his testimony during phase one of
trial, where he testified that he had obtained Theresa’s gun because he first saw John retrieve
a shotgun from John’s truck. Harmon’s proffered evidence revealed that he had been
knowingly or intentionally possessed a firearm.
7
attacked on his property and that he was in fear for himself and Theresa. Considering these
circumstances only as they appeared to Harmon, these facts highlight Harmon’s thought
processes during the event and are relevant regardless of whether Harmon was in actual
danger from John. See Brand, 766 N.E.2d at 781. The fight evidence implies a propensity
for violence on the part of John, and Harmon knew about these matters because he was
personally involved in the entire altercation. Therefore, a jury could conclude that Harmon’s
fear or apprehension was reasonable.
Nevertheless, the trial court excluded Harmon’s self-defense evidence, equating the
offense of possessing a firearm by a serious violent felon to that of a status offense for which
the defense is inapplicable. We disagree. First, the offense at issue is not a status offense
inasmuch as Harmon’s status as a serious violent offender, by itself, did not provide the basis
for his prosecution. See, e.g., Baker v. State, 747 N.E.2d 633, 636 (Ind. Ct. App. 2001)
(noting that an individual may not be prosecuted for mere status), trans. denied. Rather,
Harmon’s serious violent felon status constituted one element of the offense charged. The
State was still required to prove that Harmon possessed the firearm in question.
Second, we do not believe that the Indiana Legislature, in prohibiting the possession
of a firearm by a serious violent felon, intended to preclude the assertion of self-defense.
Several jurisdictions have enacted penal statutes prohibiting persons under indictment for, or
convicted of, a crime, generally a felony, from acquiring, having, carrying, or using firearms
or weapons. See, e.g., Sara L. Johnson, 39 A.L.R. 4th 967 (1985). The courts in these
jurisdictions have reached contrary results in determining whether the fact that the weapon
8
was acquired for self-defense is available as a defense in a prosecution for a violation of
these penal statutes. Some courts have adopted the view that even if a weapon was acquired
for self-defense, or to prevent its use against the defendant, self defense is not available as a
defense because the statutes at issue did not expressly make an exception for a convicted
felon who believed he or she may need a firearm for defensive purposes. See, e.g., id. (citing
Hodges v. State, 221 So.2d 922, 923 (Ala. Ct. App. 1969), cert. denied; Thorpe v. State, 377
So.2d 221 (Fla. Ct. App. 1979)).
Other courts, however, have recognized self-defense as a viable defense, provided that
the particular circumstances warranted such defense. In People v. King, 148 Cal. Rptr. 409,
414, 582 P.2d 1000, 1005 (Cal. 1978), for example, the court held that the legislature, in
prohibiting the possession of a concealable firearm by a person previously convicted of a
felony, did not intend to preclude the assertion of self-defense and closely related defenses to
a charge of violating the statute. There, the defendant had been attending a party at a friend’s
house when the house came under attack from some uninvited and intoxicated individuals.
Id. at 411, 582 P.2d at 1002. During the melee, the defendant was given a small pistol from
another guest to use in protecting the house and the occupants. He fired the gun over the
heads of the attackers, slightly wounding one and frightening away the remainder. At trial,
the judge refused to give an instruction that self-defense would be a defense to the weaponpossession charge and the defendant appealed. On review, the King Court determined that
the prohibition of a felon possessing a firearm was not intended to affect a felon’s right to use
a concealable firearm in self-defense, but was intended only to prohibit members of the
9
affected classes from arming themselves with concealable firearms or having such weapons
in their custody or control in circumstances other than those in which the right to use deadly
force in self-defense exists or reasonably appears to exists. Id. at 416, 582 P.2d at 1007.
Thus, continued the court, when a felon, like the defendant in question, is in imminent peril
of great bodily harm or reasonably believes himself or others to be in such danger, and
without preconceived design on his part a firearm is made available to him, his temporary
possession of that weapon for a period no longer than that in which the necessity or apparent
necessity to use it in self-defense continued would not violate the statutory prohibition
against possession of a concealed firearm by a felon. Id.
Indiana, like other states, has enacted criminal statutes prohibiting persons from
carrying handguns without licenses, i.e., Indiana Code Section 35-47-2-1, and forbidding
serious violent felons from knowingly or intentionally possessing firearms, i.e., Indiana Code
Section 35-47-4-5. These statues, however, are silent on the issue of self-defense. Cf. Ind.
Code § 35-47-4-3. 9 What is more, we have found no Indiana case that expressly applies, or
refuses to apply, self-defense to an offense under Indiana Code Section 35-47-4-5.
In Johnson v. State, 256 Ind. 497, 506-07, 269 N.E.2d 879, 884 (1971), our Supreme
Court considered whether the trial court had properly refused to give the defendant’s
9
Indiana Code Section 35-47-4-3 provides:
(a)
This section does not apply 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.
10
proffered self-defense instruction to the offense of carrying a pistol without a license.10 The
tendered instruction provided:
If you find that the defendant was carrying a pistol in a vehicle, even
unlawfully, and that he commenced to carry said pistol on his person upon
alighting from his vehicle, and that he was carrying said pistol on his person at
that time for the sole purpose of defending himself against an attack that
reasonably appeared to him likely to occur at that time and place, then his act
of carrying the pistol on his person, would be justified by the law of selfdefense and he would be entitled to an acquittal.
Id. at 506, 269 N.E.2d at 883-884.
In finding no error, the Johnson Court first noted that the evidence did not support the
instruction because “there was no evidence that the pistol was ever in the vehicle other than
on the person of the appellant.” Id. at 506, 269 N.E.2d at 884. The Court also observed:
The instruction is further in error in that it presumes that even though [the
defendant] was carrying the pistol in the vehicle unlawfully that his possession
suddenly became lawful when he became apprehensive of personal attack.
This is not the law. Had the pistol been in a location which was lawful, and
the appellant obtained it from such position to defend himself, we might have a
legitimate question. But where the appellant’s apprehension could only cause
him to shift the pistol from one unlawful location to another, he cannot be
heard to say that his possession suddenly became lawful. [Indiana Code
Section 35-23-4-3 (1971)] makes no exception for a person to carry a weapon
for the purpose of self-defense. The appellant’s possession of the weapon
either in his automobile or on his person for the purpose of self-defense was
not a defense available to appellant in this case.
Id. at 506-07, 269 N.E.2d at 884 (citations omitted and emphasis added).
10
In 1971, Indiana Code Section 35-23-4-3 provided: “No person shall carry a pistol in any vehicle or on or
about his person, except in his place of abode or fixed place of business, without a license thereof as
hereinafter provided.” This statute has been recodified in Indiana Code Section 35-47-2-1(a), which provides:
Except as provided in subsection (b) and section 2 of this chapter, a person shall not carry a
handgun in any vehicle or on or about the person’s body, except in the person’s dwelling, on
the person’s property or fixed place of business, without a license issued under this chapter
being in the person’s possession.
11
Here, unlike in Johnson, there is a legitimate question regarding Harmon’s claim of
self-defense. Harmon’s proffered evidence reveals, for example, that he broke into the
locked gun case and obtained Theresa’s handgun only after he saw John retrieve a shotgun
from John’s truck. These events occurred in the middle of a heated altercation between
Harmon and Theresa, on the one hand, and John, Audrey, and Palm, on the other. According
to Harmon, when he first took possession of the firearm, he was outnumbered, concerned
about John’s intention with the shotgun, and believed himself and Theresa to be in imminent
peril of great bodily harm. Further, Harmon’s possession of the firearm was temporary and
lasted only for the period of time necessary to abate the danger. Under these circumstances,
we conclude, as did the King majority and as was suggested by our Supreme Court in
Johnson, that Indiana’s prohibition against a felon possessing a firearm was not intended to
affect a his or her right to use a firearm in self-defense, but was intended only to prohibit
members of the affected classes from arming themselves with firearms or having such
weapons in their custody or control in circumstances other than those in which the right to
use deadly force in self-defense exists or reasonably appears to exists. Id.
Because the evidence legitimately tends to support Harmon’s self-defense theory, it is
admissible and the jury should have had the opportunity to consider the circumstances as
they appeared to Harmon. See id. at 780, 781. Accordingly, we hold that the trial court
abused its discretion by excluding this self-defense evidence to the charge of unlawful
possession of a firearm by a serious violent felon.
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II. Harmless Error
Our inquiry does not end here. We will find harmless an error in the exclusion of
evidence if its probable impact on the jury, in light of all of the evidence in the case, is
sufficiently minor so as not to affect the defendant’s substantial rights. Ind. Trial Rule 61.
In the case at bar, Harmon did not contest the elements of unlawful possession of a
firearm by a serious violent felon. Rather, he wished to argue that his possession was legally
justified in self-defense. As discussed, he had a right to do this, and because the jury was
unable to consider his defense, it had little choice but to convict Harmon. Additionally, it is
important to recognize that, after hearing evidence similar to that which was excluded during
phase two, the jury found Harmon not guilty of Attempted Voluntary Manslaughter and
Criminal Recklessness. If the jury believed, as one would infer from its findings, that selfdefense justified Harmon’s use of force by means of the gun, the jury may have also found
Harmon not guilty of possessing the gun had it been allowed to consider self-defense as a
justification for that possession. In light of all of the evidence in the case, we cannot say that
the impact on the jury of the exclusion of evidence was sufficiently minor so as not to affect
Harmon’s substantial rights. The trial court’s error was not harmless.
III. Sufficiency of Evidence for Retrial
Having determined that the trial court committed reversible error by excluding selfdefense evidence, the question of whether Harmon may be subjected to a new trial depends
upon an analysis of the sufficiency of the evidence. Alexander v. State, 819 N.E.2d 533, 539
(Ind. Ct. App. 2004). When deciding whether retrial is permissible, we consider all of the
13
evidence admitted by the trial court, including any erroneously admitted evidence. Id. at
539-40. If that evidence, viewed as a whole, would have been sufficient to sustain the
judgment, retrial would not offend double jeopardy principles. Id. at 540. If, however, the
evidence is insufficient, Harmon may not be retried. See id.
When considering a challenge to the sufficiency of the evidence, we neither reweigh
the evidence nor judge witness credibility. Id. Considering only the evidence and reasonable
inferences that support the verdict, we must decide if there is evidence of probative value
from which a reasonable trier of fact could infer guilt beyond a reasonable doubt. Id.
Here, Harmon admitted to being a serious violent felon and to knowingly or
intentionally possessing a firearm. Thus, there is sufficient evidence to sustain the judgment.
Retrial would not offend double jeopardy principles.
Conclusion
The trial court abused its discretion by excluding self-defense evidence in the second
phase of Harmon’s bifurcated trial. Such error was not harmless. Retrial would not offend
double jeopardy principles.
Reversed and remanded for a new trial.
KIRSCH, C.J., and CRONE, J., concur.
14
