BARNES, Judge.
Jamar Washington appeals his convictions for Class D felony battery, Class A
The sole contested issue in this appeal is whether the trial court properly instructed the jury.
On the evening of May 1, 2011, Washington went to a club in downtown Indianapolis while his live-in girlfriend, Dynasty Brown, stayed home with the couple's children, including an eight-month-old boy. Sometime during the late evening of May 1 and early morning of May 2, 2011, Brown received a Facebook message that included a picture of Washington with another woman at the club. After trying twice to call Washington, unsuccessfully, Brown decided to drive to the club with the eight-month-old boy and find Washington.
At approximately 3:00 a.m., Brown arrived at the club and saw Washington standing outside with the other woman, Deja Crayton. Brown, while carrying the eight-month-old on her hip, approached Washington and Crayton and then first hit Washington, then Crayton, in the face. Brown then handed the eight-month-old to someone in the crowd after someone shouted, "Girl, give me your baby!" Tr. p. 73. Brown and Crayton then began fighting, with Washington attempting to break them up.
Several Indianapolis Metropolitan Police Department officers were near the scene on "bar detail" and saw the Brown-Crayton-Washington altercation transpire. Id. at 68. Officer Cedric Young approached Brown from behind, picked her up, put her face down on the hood of a car, and attempted to handcuff her while she struggled. While Officer Young was attempting to handcuff Brown, Washington jumped on Officer Young's back, put his arm around Officer Young's neck, and started yelling, "Get off my baby mama, get off my baby mama." Id. at 75. Officers Geoffrey Barbieri and Lisa Weilhamer attempted to assist Officer Young with Washington as he struggled, during which Washington caused Officer Weilhamer to fall backwards and hit her head on the pavement, causing a mild concussion. Officer Barbieri also fell and was kicked several times by Washington. Eventually, five officers were able to wrestle Washington to the ground and handcuff him. When Officer Young asked Washington why Washington had jumped on his back, Washington responded that he thought Brown was still holding his baby when Officer Young had forced her down onto the car hood.
The State charged Washington with Class D felony strangulation, three counts of Class D felony resisting law enforcement, three counts of Class D felony battery on a police officer resulting in injury, and one count of Class B misdemeanor disorderly conduct. The State later dismissed two of the battery counts. A jury trial was held on November 30, 2011. At Washington's request the trial court gave a jury instruction regarding defense of a third person; it gave a pattern instruction on the topic and did not give two instructions tendered by Washington. The jury found Washington guilty of two counts of Class A misdemeanor resisting law enforcement as lesser-included offenses of the D felony resisting charges, one count of Class D felony battery on a law enforcement officer, and Class B misdemeanor disorderly conduct. Washington was acquitted of the remaining counts. The trial court merged one of the resisting convictions into the battery convictions and sentenced Washington for one count of Class D felony battery, one count of Class A misdemeanor resisting law enforcement, and one count of Class B misdemeanor disorderly conduct. The abstract of judgment,
The sole disputed issue in this case is whether the trial court properly instructed the jury regarding defense of a third person. Washington requested instructions on the issue with respect to his claim that he thought, albeit mistakenly, that Brown was still holding his son when Officer Young forced her onto the hood of the car and that his son might be crushed underneath. The manner in which a trial court instructs a jury is largely within the sound discretion of the trial court, and we review a trial court's decision regarding instructions only for an abuse of that discretion. Orta v. State, 940 N.E.2d 370, 376 (Ind.Ct.App.2011), trans. denied. We must consider the following when reviewing a trial court's refusal to give a defendant's tendered jury instruction: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given. Lewis v. State, 898 N.E.2d 429, 433 (Ind.Ct.App. 2008), trans. denied.
The trial court gave the following pattern jury instruction regarding defense of another person:
App. p. 131. This pattern instruction tracks the language of the self-defense and defense of another person statute, Indiana Code Section 35-41-3-2(a).
The trial court refused to give the following two instructions tendered by Washington, which were tendered defense instructions 3 and 4:
App. p. 102.
Id. at 103. Washington asserts that these additional instructions were necessary to adequately inform the jury that he could successfully claim defense of another, even if he was mistaken about Brown not holding his son when Officer Young attempted to restrain her.
On appeal, the State concedes that there was sufficient evidence that could have supported the giving of Washington's tendered instructions. It also concedes that instruction 3 is a correct statement of the law, as its language comes from Franklin v. State, 266 Ind. 540, 544, 364 N.E.2d 1019, 1021 (1977). Franklin, however, concerned a review of the sufficiency of the evidence regarding a conviction, not the proper manner of instructing a jury. Our supreme court has said that simply because language appears in an appellate opinion does not mean it is appropriate for a jury instruction. Ludy v. State, 784 N.E.2d 459, 462 (Ind.2003).
The State does not concede that tendered instruction 4 is a correct statement of the law, arguing that it focuses exclusively upon a defendant's subjective state of mind when evaluating a claim of defense of another person. It points out that in Littler v. State, 871 N.E.2d 276, 279 (Ind. 2007), our supreme court held "that the phrase `reasonably believes,' as used in the Indiana self-defense statute, requires both subjective belief that force was necessary to prevent ... injury, and that such actual belief was one that a reasonable person would have under the circumstances." Arguably, this holding conflicts with tendered instructions 4's language that a self-defense claim "can only be determined from the standpoint of the Accused...." App. p. 103.
Even if instructions 3 and 4 both correctly stated the law and were supported by the evidence, the closer question in this case is whether their substance was adequately covered by the trial court's giving of the pattern instruction regarding defense of another person. Initially, "we must note that the preferred practice is to use the pattern jury instructions." Gravens v. State, 836 N.E.2d 490, 493 (Ind.Ct. App.2005), trans. denied. We must, however, carefully consider our supreme court's holding in French v. State, 273 Ind. 251, 403 N.E.2d 821 (Ind.1980).
In French, a defendant claimed self-defense in a murder prosecution. The trial court gave the following instruction regarding the use of deadly force in self-defense:
French, 273 Ind. at 255, 403 N.E.2d at 824. Our supreme court held this instruction to be inadequate and its inadequacy to be reversible error, stating:
Id. at 256, 403 N.E.2d at 825. Our supreme court has never expressly overruled French. Taken at face value, French might have required more expansive jury instructions than the pattern instruction the trial court here gave, including at least some of the language in the instructions Washington tendered.
In Shaw v. State, 534 N.E.2d 745 (Ind. 1989), our supreme court addressed a case in which the jury was given the following self-defense instructions:
In Shaw, the defendant argued that these instructions were insufficient under French because they did not explicitly advise the jury that they had to evaluate the self-defense claim based on how the situation appeared to be to the defendant, rather than what the actual facts were. Indeed, these jury instructions do not include the language that the French opinion seemed to hold was required. Regardless, the Shaw opinion held that the jury instructions there went beyond those disapproved of in French and were sufficient. Shaw, 534 N.E.2d at 747. The court stated:
id.
Relying upon Shaw's "clarification" of French, this court subsequently approved the giving of a pattern jury instruction on self-defense that was in all relevant respects identical to the instruction given here. See Davis v. State, 691 N.E.2d 1285, 1289-90 (Ind.Ct.App.1998).
Although we affirm Washington's convictions, the State concedes that the trial court made a clerical error on the abstract of judgment. It states that Washington was convicted of Class D felony resisting law enforcement. The actual judgment of conviction, however, states that Washington was convicted of Class A misdemeanor resisting law enforcement. We therefore remand for the trial court to enter a corrected abstract of judgment accurately reflecting that Washington was convicted of Class A misdemeanor resisting law enforcement.
The trial court did not abuse its discretion in instructing the jury, and we affirm Washington's convictions. However, we remand for correction of the abstract of judgment.
Affirmed and remanded.
VAIDIK, J., and MATHIAS, J., concur.