May, J.
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.
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.”
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[.]” Hines had never met Ervin before. Hines then noticed Ervin was pointing a gun at him. … Without stopping, Hines made a “right U-turn[,]”and started to drive away. He heard Ervin start firing at him, “like [Ervin] peppered [Hines’] truck.” … After verifying Ervin was not following him, Hines called 911 and went home. Hines talked to police at his home.
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Indianapolis Metropolitan Police Department (“IMPD”) Officer Richard Faulkner, Sr., was dispatched to the scene pursuant to a report of a “disturbance with shots fired.” … He saw “several people in the [gas station] parking lot, in the grass area, yelling and waving their hands.” The people were yelling that Ervin was the shooter and had a gun.
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. 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.
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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.
The jury found Ervin guilty as charged. … The trial court sentenced Ervin to three years, with two and one half years suspended.
At oral argument, sua sponte, we asked the parties whether a double jeopardy violation occurred herein. … 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.
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). …
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While the jury may have based its verdict on the fact Ervin approached Hines’ truck with the gun pointed at the truck, an action that could reasonably be presumed to be separate from Ervin pulling the gun immediately prior to shooting, the jury was also free to use the drawing of the gun immediately before Ervin started firing to support both charges. Therefore, there is a reasonable probability that a double jeopardy violation occurred. Accordingly, the lesser charge of pointing a firearm must be vacated. …
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“The manner of instructing a jury is left to the sound discretion of the trial court.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied. … “When the claimed error is the failure to give an instruction . . . a tendered instruction is necessary to preserve error because, without the substance of an instruction upon which to rule, the trial court has not been given a reasonable opportunity to consider and implement the request.” Scisney v. State, 701 N.E.2d 847, 848 n.3 (Ind. 1998) …
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Ervin claims the trial court abused its discretion when it refused to give the instructions regarding defense of property and defense of others. He argues that even though the trial court thought he had provoked the incident, he had presented enough evidence to support the instruction being read.
As a matter of law, as discussed supra, Ervin could not have been acting in defense of his property or others as he was not in a place he was allowed to be—blocking an intersection—and as he instigated and provoked the situation. Therefore, the trial court properly declined to give Ervin’s proposed instructions. …
As the jury may have used the same evidence to support its verdict of guilt on both charges, we vacate the charge of Level 6 felony pointing a firearm. Because the State presented sufficient evidence of Level 5 felony criminal recklessness and overcame Ervin’s defense claims, we affirm that conviction. As a matter of law, Ervin was not in a place he was allowed to be and he instigated the situation, such that the trial court did not err when it refused to give jury instructions regarding defense of property and defense of others. …
Vacated in part and affirmed in part.
Baker, J., and Bailey, J., concur.