text:
    Jamar WASHINGTON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 49S02-1212-CR-669.
    Supreme Court of Indiana.
    Nov. 12, 2013.

      Victoria Bailey, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

In this case the defendant alleges that the trial court improperly instructed the jury regarding his claim that he was acting in defense of another. The defendant argues that the Court of Appeals misinterpreted our precedent in this area. Finding that the trial court did not err in its final instructions when it used the existing Indiana Pattern Jury Instruction on defense of another, we affirm the defendant’s conviction but remand the case to the trial court to correct an error in the abstract.

Facts and Procedural History

Jamar Washington lived with his girlfriend, Dynasty Brown, and their two children, eight-month-old Jc.W. and two-year-old Ja.W., as well as Dynasty’s five-year-old child from a prior relationship. On the evening of May 1, 2012, into the early morning of May 2, 2012, Washington went to a night club in downtown Indianapolis. Sometime after he left, Brown received a Facebook message asking if she knew Washington was at Club Hyde, and then a second picture message of Washington with another woman. When Washington did not answer Brown’s phone calls, she drove downtown to confront him. She took eight-month-old Jc.W. along.

Brown arrived downtown and found Washington standing outside the night club talking to a woman, Deja Crayton. While holding Jc.W., Brown punched Washington in the eye and then punched Crayton. A fight ensued and a crowd gathered. A woman in the crowd yelled, “Girl, give me your baby!” [Tr. 72.] Brown gave JcW. to the woman and then continued to fight with Crayton.

Indianapolis Metropolitan Police Officer Cedric Young attempted to break up the fight between the two women. Officer Young grabbed Brown from behind, picked her up, and put her on the hood of a nearby car. Washington did not know that Brown had handed their baby to a woman in the crowd and so believed Officer Young was harming Jc.W. Washington grabbed Officer Young around the neck and tried to pull him off Brown.

A second officer on the scene, Officer Christopher Faulds, was trying to calm the crowd when he saw Washington jump on Officer Young’s back. Three other officers who were present and assisting in crowd control also attempted to come to the aid of Officer Young. Officer Lisa Weilham-mer fell during the struggle with Washington and hit her head on the pavement. Officer Geoffrey Barbieri, while trying to prevent Officer Weilhammer from falling, fell to his knees on the pavement. During the melee, Washington kicked Officer Bar-bieri several times.

The police officers were eventually able to get Washington into handcuffs and he was taken into custody. The State charged him 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.

Washington was subsequently tried by a jury. After the evidence was presented, and over the State’s objection, the trial court agreed to give the jury a pattern instruction regarding the defense of another. Washington tendered the following instruction, which largely paralleled the instruction eventually given.

Defendant’s Tendered Instruction No. 2: Use of force to defend another person is a legal defense.
A person is justified in using reasonable force against another person to protect a third person from what the person reasonably believes to be the imminent use of unlawful force.
No person in this State shall be placed in legal jeopardy of any kind whatsoever for protecting a third person by reasonable means necessary.
The State has the burden of disproving this defense beyond a reasonable doubt.

(App. at 101,131; Tr. 239-40.) But Washington also tendered two additional instructions, both of which were refused by the trial court.

Defendant’s Tendered Instruction No. 3:

A man has a right to act upon appearance of actual and immediate danger if he sincerely believes such apparent danger exists. The danger need not be actual. It need be only apparent to a reasonable person under the circumstances. He will not be accountable for an error in judgment as to the need to use force or the amount of force necessary, provided he acted honestly. The law protects persons who feel compelled to act at such times even though in retrospect it is proved they have erred. The danger need not be actual but the belief must be in good faith and the reaction must be reasonable.

Defendant’s Tendered Instruction No. 4:

With regard to the defense of another, the existence of the danger, the necessity or apparent necessity of force, as well as the amount of force required to resist the attack can only be determined from the standpoint of the Accused at the time and under the then existing circumstances.
Ordinarily, one exercising the right to defense of another is required to act upon the instant and without time to deliberate and investigate, and under such circumstances a danger which exists only in appearance is as real and imminent to him as if it were actual. A defender [sic] will not be accountable for an error in judgment as to the need to use force or amount of force necessary.

(App. at 102-03.) Washington cited French v. State, 273 Ind. 251, 403 N.E.2d 821 (1980), Franklin v. State, 266 Ind. 540, 364 N.E.2d 1019 (1977), and Drake v. State, 174 Ind.App. 646, 369 N.E.2d 941 (1977) as the basis for his instruction no. 3 and French as the basis for instruction no. 4. The trial court found both instructions were cumulative and unnecessary in light of the instruction it gave.

Instruction No. 34:

It is an issue whether the Defendant acted in defense of another person.
A person may use reasonable force against another person to protect someone else from what the Defendant reasonably believes to be the imminent use of unlawful force.
No person in this State shall be placed in legal jeopardy of any kind whatsoever for protecting a third person by reasonable means necessary.
The State has the burden of proving beyond a reasonable doubt that the Defendant did not act in defense of another person.

(App. at 131.) ' This instruction was based on the Indiana Pattern Jury Instruction for defense of another. See Ind. Pattern Jury Inst. 10.03A (Feb. 2013).

Washington was found guilty of two counts of resisting law enforcement, one count of battery of a law enforcement officer resulting in injury, and one count of disorderly conduct. He was sentenced to an aggregate of 730 days with 90 days served in the Indiana Department of Correction, credit for 23 days served prior to sentencing, and the balance of the sentence to be served in the home detention component of Marion County Community Corrections.

Washington appealed the trial court’s refusal to give his tendered jury instructions. The Court of Appeals affirmed. Washington v. State, 973 N.E.2d 91 (Ind.Ct.App.2012). We have granted transfer to address the jury instructions for self-defense and defense of another and the interpretation of Shaw v. State and French v. State.

Standard of Review

Instructing a jury is left to the sound discretion of the trial court and we review its decision only for an abuse of discretion. Stringer v. State, 853 N.E.2d 543, 548 (Ind.Ct.App.2006). We undertake a three-part analysis in determining whether a trial court has abused its discretion. Walden v. State, 895 N.E.2d 1182, 1186 (Ind.2008). First, the reviewing court should determine whether the tendered instruction is a correct statement of the law. Id. Second, it “examines the record to determine whether there was evidence present to support the tendered instruction.” Id. Finally, it “determines whether the substance of the tendered instruction was covered by another instruction or instructions.” Id.

Discussion

The trial court gave only the pattern jury instruction and not Washington’s tendered instructions no. 3 and no. 4. Washington claims his additional tendered instructions were necessary to adequately inform the jury that he could successfully claim defense of another, even if he was mistaken about Brown no longer holding their infant son when Officer Young attempted to restrain her.

I. French and Shaw

Central to the resolution of Washington’s alleged instructional error are two previous cases decided by this Court: French and Shaw v. State, 534 N.E.2d 745 (Ind.1989). Some confusion seems to exist as to whether Shaw repudiated French, and what the correct statement of the law is regarding the instructions for self-defense and defense of another in light of our precedent.

In French, the defendant claimed self-defense in a murder prosecution. French, 273 Ind. at 253, 403 N.E.2d at 823. The homicide occurred in the parking lot of a bar where the decedent and several other men were drinking in the late afternoon. French testified he approached the men and noticed an eighteen- or nineteen-year-old youth. French was active in youth programs and told the youth he did not belong there. According to French’s testimony, the scene escalated between French and the decedent with the crowd forming around them and French attempting to walk away. French testified that the decedent charged him and he backed away with his gun pointed at the decedent. As he backed away, he bumped into a car and the gun accidentally fired, hitting the decedent in the heart leading to his death. French’s testimony was diametrically opposed to the testimony of the State’s witnesses, who claimed a cold-blooded murder. Nevertheless, French requested and the trial court appropriately determined that the jury instruction on self-defense was warranted. The trial court gave the following instruction:

A person is justified in using reasonable force against another person to protect himself or a third person from what he reasonably believes to be the imminent use of unlawful force. However a person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person in the commission of a forcible felony.

Id. at 255, 403 N.E.2d at 824. We held this instruction to be inadequate and that reversible error resulted, stating:

At no point in the instructions given was the jury informed that in the exercise of the right, a defender may repel force by force reasonably necessary and that he will not be accountable for an error in judgment as to the amount of force necessary, provided he acted honestly. Neither did the court’s instructions apprize the jury that the existence of the danger, the necessity or apparent necessity, as well as the amount of force required to resist the attack can only be determined from the standpoint of the defendant, at the time and under the then existing circumstances.

Id. at 256, 403 N.E.2d at 825.

We wrote at the time that the instruction that “a person is justified in using [ ] force only if he reasonably believes it to be necessary” required balancing the subjectivity of the defendant’s perception of the circumstances on one hand and the reasonableness of such perception on the other. Id. We said it is required that the defendant also acted honestly, determined from the standpoint of the defendant, at the time and under the circumstances. Id.

In Shaw, we addressed another murder case involving jury instruction challenges, and further delved into the balancing of the defendant’s subjective belief against what a reasonable person would believe under the same or similar circumstances. Shaw, 534 N.E.2d at 746. Shaw lived in a trailer with three other women and met the decedent shortly after moving in. The decedent made obscene sexual remarks toward the women and barged into the trailer at other times in various states of intoxication. At a later date, Shaw and her trailer roommates held a party and eventually a quarrel developed between the decedent and partygoers. Shaw retreated to the trailer, grabbed a kitchen knife, went outside and confronted the decedent, stabbing him in the abdomen leading to his death. Over Shaw’s objection, the trial court refused the following tendered Final Instructions No. 3, No. 4, and No. 7 regarding the doctrine of self-defense.

Final Instruction No. 3:

The Court instructs you that one person may kill another under such circumstances that the homicide or killing constitutes no crime but is justified by the law. This is known as the law or doctrine of self defense and may be stated for your guidance as follows:
If a person, being himself without fault, is assaulted in a place where he has a right to be, so far as his assailant is concerned, he may, without retreating, repel his assailant by force; and he need not believe that his safety requires him to kill his adversary in order to give him a right to make use of force. When from the act of his assailant he believes, and has reasonable grounds to believe, that he is in danger of losing his life or receiving great bodily harm from his adversary, the right to defend himself from such danger or apprehend danger, may be exercised by him; and he may use it to any extent which is reasonably necessary and if his assailant is killed as a result of the reasonable defense of himself, he is excusable in the eyes of the law. The questions of the existence of such danger, the necessity or apparent necessity, as well as the amount of force necessary to employ to resist the attack can only be determined “from the standpoint of the defendant” (emphasis added) at the time and under all of the then existing circumstances. Ordinarily, one exercising the right to self defense is required to act upon the instant and without time to deliberate and investigate; and under such circumstances a danger which exists only in appearance is as real and imminent to him as if it were actual.
A person in the exercise of the right of self defense must act honestly and conscientiously.
When all danger and all apparent danger of the loss of life or of receiving serious bodily injury from the assault of his assailant is at an end and passed, then the right to use force is at an end and should cease. The person exercising the right of self defense must honestly believe and have reasonable cause to believe, when he makes use of force to protect himself from an assailant, that at the time he used the force it is then necessary to do so to protect his life or protect his person from serious bodily injury.
One who is in no apparent danger and who has no reasonable ground for such apprehension cannot kill another and successfully interpose the defense of self defense.

Final Instruction No. 4:

When the evidence fails to show, on the part of the defendant, any motive to make an assault or commit a crime, such lack of motive is a circumstance in favor of the innocence of the party accused, and in this case, if the jury finds, upon a careful examination of all the evidence, that it fails to show any motive on the part of the defendant to commit the crime charged, then such failure to show motive should be considered by the jury as a circumstance in favor of her innocence and as supporting her claim of self defense. On the other hand, if the jury finds, upon a careful examination of the evidence, that the deceased had a motive for making an assault upon the defendant, then this is a circumstance which the jury may consider in connection with all the evidence in the case, in determining whether or not the deceased made a deadly attack upon the defendant in pursuance of such motive, and whether or not the defendant killed the deceased in her own self defense.

Final Instruction No. 7:

A defendant’s belief that he is in apparent danger does not require that danger be actual in order to support a claim of self defense, but only that the belief be in good faith.

(Shaw v. State Appellant’s App. at 497-99 (available on microfilm).) In support of these instructions, Shaw cited Shepard v. State, 451 N.E.2d 1118 (Ind.1983), Brown v. State, 255 Ind. 594, 265 N.E.2d 699 (1971), and Gilmore v. State, 229 Ind. 359, 98 N.E.2d 677 (1951). Instead, the trial court gave the following self-defense instructions to the jury:

A person is justified in using reasonable force against another person to protect herself from what she reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force only if she reasonably believes that the force is necessary to prevent serious bodily injury to herself or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting herself by reasonable means necessary.

There are three (3) requirements for self defense when deadly force is used:

(1) The defendant must have acted without fault;
(2) The defendant must have had a right to be where she was; and,
(3) The defendant must have reasonably believed that she was in immediate danger of death or serious bodily harm.
Once a claim of self defense is raised, the State bears the burden of disproving the existence of one of these elements beyond a reasonable doubt....
Although threats alone are not sufficient to justify an assault, a threat at a time when there is the present ability to assault, and under circumstances which lead a person in good faith reasonably to believe that he is about to be seriously injured or killed is sufficient on the theory of self defense.

Shaw, 534 N.E.2d at 747. After reviewing the actual instruction given by the trial court, we stated:

The jury was repeatedly told that the standard to be considered by the jury was the reasonable belief of the defendant ... We cannot see how such language could be interpreted by a jury in any manner other than that the standard to be used was the state of mind of the defendant at the time of the infliction of the injury.

Id.

This is not out of line with what we said nine years prior in French. The defendant is entitled to have the jury consider the facts and circumstances known to the defendant (i.e., his or her subjective belief), but those facts and circumstances must be balanced against what a reasonable person would believe under the same or similar circumstances. Thus, Shaw did not expressly repudiate French. Instead, Shaw elaborated on — and attempted to clarify — French. The Shaw jury was “repeatedly told that the standard to be considered by the jury was the reasonable belief of the defendant.” Id. That was a correct statement of the law. In French, the jury was not so instructed. That was error.

II. The Trial Court’s Instruction

The Indiana Pattern Jury Instruction regarding defense of another tracks the language of the self-defense and defense of another statute. See Ind.Code § 35-41-3-2(c) (Supp.2012). We believe that in doing so it is also consistent with our precedent.

In Littler v. State, 871 N.E.2d 276, 279 (Ind.2007), we looked at other states’ self-defense statutes. Eighteen-year-old Neal Littler died from a gunshot wound suffered in a fight with his twin brother, Phillip. Id. at 276. We found helpful the words of the Alaska Supreme, where it recognized that self-defense comprises both a subjective and objective component:

[T]o employ self-defense a defendant must satisfy both an objective and subjective standard; he must have actually believed deadly force was necessary to protect himself, and his belief must be one that a reasonable person would have held under the circumstances.

Id. at 279 (quoting Weston v. State, 682 P.2d 1119, 1121 (Alaska 1984)). This approach, we noted, was also reflected in State v. Lewis, 245 Conn. 779, 811, 717 A.2d 1140, 1157-58 (1998), State v. Augustin, 101 Hawai'i 127, 132, 63 P.3d 1097, 1102 (2002), State v. Smith, 472 A.2d 948, 950 (Me.1984), State v. Moore, 158 N.J. 292, 309-10, 729 A.2d 1021, 1030 (1999), and People v. Goetz, 68 N.Y.2d 96,113, 497 N.E.2d 41, 51-52, 506 N.Y.S.2d 18, 28-29 (N.Y.1986). Littler, 871 N.E.2d at 279. So again we emphasized that the phrase “reasonably believes” in the Indiana self-defense statute requires both a subjective belief that force was necessary to prevent serious bodily injury and that a reasonable person under the circumstances would have such an actual belief. Id.

While Littler was not a case focusing on jury instructions, it is helpful in our analysis of the components of a self-defense or defense of another instruction. It emphasizes that “reasonable belief’ also includes what a reasonable person would believe if standing in the shoes of the defendant.

Similarly, in another case that did not necessarily look at jury instructions, we discussed the components of the self-defense statute. Hirsch v. State, 697 N.E.2d 37 (Ind.1998). We highlighted the “standpoint of the defendant” language from French, and again emphasized that the language meant the jury should examine circumstances as they appeared to the defendant. But while the defendant’s own account is critically relevant, the standard is still the reasonableness of the belief of the defendant. We wrote:

Our decisions have long emphasized the central importance of the defendant’s testimony in a self-defense case: “The question of the existence of such danger, the necessity, as well as 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.” French v. State, 273 Ind. 251, 254, 403 N.E.2d 821, 824 (1980) (quoting Martin v. State, 260 Ind. 490, 296 N.E.2d 793 (1973)). Focusing on the “standpoint of the defendant” means at least two things: (1) the trier of fact must consider the circumstances as they appeared to the defendant, rather than to the victim or anyone else; and (2) the defendant’s own account, although not required to be believed, is critically relevant testimony. As one early case put it:
[W]hoever relies upon appearances, and a reasonable determination upon such appearances, as a defence in a case of homicide, ought to be allowed to prove every fact and circumstance known to him, and connected with the deceased, which was fairly calculated to create an apprehension for his own safety. Any narrower rule than this would, we think, prove inadequate to full justice in all cases of homicide, and would in many cases, operate as a serious abridgement of the law of self-defence.
Boyle v. State, 97 Ind. 322, 326 (1884) (emphasis added).

Id. at 42, n. 10. Indiana Pattern Jury Instruction 10.03A provides no less of an expression of that rule, and thus the instruction given in the present case by the trial court was a correct statement of the law.

III. Washington’s Additional Instructions

Here Washington, by way of his two additional instructions, essentially alleges that he can successfully claim defense of another even if he was mistaken about Brown not holding his son when Officer Young attempts to restrain her. This is an incorrect (or at least misleadingly incomplete) statement of the law because, as we pointed out in French, that must be balanced against whether or not Washington was “act[ing] honestly,” or stated another way, as a reasonable defendant. French, 273 Ind. at 256, 403 N.E.2d at 825.

Washington’s tendered instruction no. 3 would have been superfluous because it contained language similar to the pattern jury instruction that was tendered. Therefore it was properly refused.

And Washington’s tendered instruction no. 4 focused solely on his perception of the danger he faced and thus did not constitute a correct statement of the law because it did not include anything about the reasonableness of his perception and belief as to the danger. It was therefore also properly refused.

Conclusion

We affirm the decision of the trial court. Here, the instruction given by the court was a correct statement of law and Washington’s tendered instructions were not required. The trial court did not abuse its discretion in refusing to give them. We hold that the Indiana Pattern Jury Instruction is a correct statement of the law and continues to serve as the primary guide for our trial judges on this issue. It contains language which compliments the self-defense or defense of another statute regarding the factors as they existed in the mind of the defendant balanced against whether such belief was reasonable. Trial courts continue to have the discretion to augment the pattern instructions whenever they deem appropriate and to refuse any tendered instructions consistent with the requirements of Walden. Their decisions will be reviewed for an abuse of discretion.

However, we remand the case to the trial court to correct the abstract of judgment, as conceded by the State and held by the Court of Appeals. Specifically, there was 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 states that Washington was convicted of Class A misdemeanor resisting law enforcement. Therefore, upon remand, the trial court should enter a corrected abstract of judgment accurately reflecting that Washington was convicted of Class A misdemeanor resisting law enforcement.

DICKSON, C.J, RUCKER, MASSA, and RUSH, JJ., concur.


source: Caselaw Access Project

author: DAVID, Justice.

license: Public Domain

text:
    Billy RUSSELL, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 49S04-1311-CR-741.
    Supreme Court of Indiana.
    Nov. 12, 2013.

      Lisa M. Johnson, Brownsburg, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DAVID, Justice.

In this case, the defendant claims that the trial court should have given his tendered jury instruction on self-defense; however, his tendered instruction would have incorrectly limited the jury’s consideration to his subjective belief without assessing its reasonableness. Further, the defendant alleges that the trial court erred by not completely bifurcating the trial on his Serious Violent Felon (“SVF”) charge from the trial on his murder charge. Finding that the trial court did not err in utilizing the existing Indiana Pattern Jury Instruction on self-defense and in partially bifurcating the trial, we affirm the defendant’s convictions for murder and class B felony possession of a firearm by a SVF.

Facts and Procedural History

On September 18, 2010, Billy Russell argued with Jairme Wilburn outside the home Russell shared with his grandmother, girlfriend Angel Brown, Brown’s child, and Brown’s friend, Elizabeth Pearson. Wilburn was Pearson’s long-time boyfriend. Russell went inside, retrieved a handgun, and returned outside, where Wilburn was yelling threatening comments. When Wilburn turned away, Russell shot him in the head. Wilburn died from the gunshot wound.

The State charged Russell with murder and class B felony possession of a firearm by a SVF, based on a prior conviction for conspiracy to commit robbery. Prior to trial, Russell filed a motion requesting that the SVF charge be bifurcated from the murder charge. Instead of completely bifurcating the trial on the SVF charge from the trial on the murder charge, the trial court instructed the jury to consider, along with the murder charge, whether Russell had committed the non-existent offense of “unlawful possession of a firearm” by knowingly possessing a firearm.

At trial, Russell claimed self-defense. He tendered the following jury instruction, which was refused by the trial court:

Defendant’s Proposed Final Jury Instruction No. 1:
With regard to the defense of self-defense, the existence of the danger, the necessity or apparent necessity of using force, as well as the amount of force required can only be determined from the standpoint of the accused at the time and under the then existing circumstances.
A person’s belief of apparent danger does not require the danger to be actual but only that the belief be in good faith.

(App. at 212.) Russell cited French v. State, 273 Ind. 251, 254-55, 403 N.E.2d 821, 824-25 (1980), Franklin v. State, 266 Ind. 540, 544, 364 N.E.2d 1019, 1021 (1977), and Shepard v. State, 451 N.E.2d 1118, 1120-21 (Ind.Ct.App.1983) as his basis for this instruction. The trial court refused to give his instruction and instead gave the Indiana Pattern Jury Instruction.

In the first phase of trial, the jury convicted Russell on both charges. In the second phase of trial, the trial court instructed the jury to consider whether Russell was a SVF. The jury convicted him of the SVF charge and found that he was a habitual offender. Russell was sentenced to a term of fifty-five years for the murder, enhanced by thirty years for the habitual offender finding. The trial court also sentenced Russell to fifteen years for the SVF conviction, to run concurrently with the murder sentence. Russell appealed.

On appeal, Russell argued that reversible error occurred when the trial court refused to give his tendered jury instruction assessing his self-defense claim from his standpoint at the time of the shooting. He also argued that reversible error occurred when the trial court partially bifurcated the trial. The Court of Appeals concluded that the trial court did not abuse its discretion in refusing to give Russell’s tendered jury instruction, Russell v. State, 981 N.E.2d 1280, 1289-90 (Ind.Ct.App. 2013), or in partially bifurcating the case in such a way, id. at 1286.

Three additional issues — whether the trial court erred in failing to instruct the jury on voluntary manslaughter as a lesser-included offense of murder, whether the trial court properly instructed the jury regarding the exception to a claim of self-defense for committing another crime, and whether Russell’s eighty-five-year sentence is appropriate — were raised by Russell. We summarily affirm the Court of Appeals on these three issues and grant transfer only to address Russell’s tendered jury instruction on self-defense and the trial court’s partial bifurcation of his prosecution. Ind. Appellate Rule 58(A).

I. Tendered Instruction

on Self-Defense

Today we hand down Washington v. State, in which we answer Russell’s question of whether a tendered jury instruction assessing a self-defense claim from the standpoint of the accused at the time of the incident is a correct statement of the law. In Washington, we hold that a claim of self-defense must be evaluated by the jury by considering the objective reasonableness of the defendant’s belief that he was in imminent harm.

Russell’s tendered instruction stated that, in evaluating a self-defense claim, “the existence of the danger, the necessity or apparent necessity of using force, as well as the amount of force required can only be determined from the standpoint of the accused at the time and under the then existing circumstances.” (App. at 212) (emphasis added). Because Russell’s tendered instruction focused solely on the subjective belief of the defendant and ignored the objective reasonableness of the defendant’s belief, his instruction was incomplete and incorrect under French. Thus, the trial court did not err in refusing to give Russell’s tendered jury instruction.

II. Partial Bifurcation

Before trial, Russell filed a motion requesting that the trial court completely bifurcate the trial on his SVF charge from the trial on his murder charge. Instead, over Russell’s objection, the trial court split Russell’s prosecution into two phases: phase one, where the jury determined whether Russell committed murder and whether he “unlawfully” possessed a firearm; and phase two, where the jury determined whether Russell committed felony possession of a firearm by a SVF and whether he was a habitual offender. Had the trial court fully bifurcated the trial on the SVF charge from the trial on the murder charge, the trial court would have avoided instructing the jury on the non-existing offense of “unlawfully” possessing a firearm.

As Russell argues, “unlawful possession of a firearm” is not a crime under the Indiana Code. Rather, the three elements given in the jury instruction said to comprise the “offense” — (1) the defendant did; (2) knowingly or intentionally; (3) possess a firearm — are three elements of the statutory offense of possession of a firearm by a SVF. Ind.Code § 35-47-4-5(c) (Supp. 2012).

One of the purposes of bifurcation is to keep prior convictions away from the jury in their initial determination of guilt for the substantive crime charged. Hines v. State, 794 N.E.2d 469, 472 (Ind.Ct.App.2003), adopted and incorporated by Hines v. State, 801 N.E.2d 634 (Ind.2004). Here, the Court of Appeals recognized this purpose of bifurcation.

[T]he primary concern with SVF trials is the labeling of a defendant as a “serious violent felon” and the introduction of evidence of a defendant’s criminal history in order to prove SVF status. None of the cases have expressed concern about proving the fact of a defendant’s possession of a firearm simultaneously with another crime. In fact, Russell has cited no case, nor has our research revealed, any case holding that a charge of carrying a handgun without a license must be bifurcated from a simultaneous offense, such as murder. Thus, there was no prejudice in asking the jury to decide whether Russell knowingly possessed a firearm at the same time it was asked to decide whether he committed murder.

Russell, 981 N.E.2d at 1285 (internal citation omitted). “A trial court’s decision whether to bifurcate is subject to an abuse of discretion standard.” Shafer & Freeman Lakes Environmental Conservation Corp. v. Stichnoth, 877 N.E.2d 475, 481 (Ind.Ct.App.2007). Because the jury was not informed of Russell’s prior convictions during the first phase of his trial, this purpose of bifurcation has been met and Russell has not been prejudiced.

Russell also argues that instructing the jury on the non-existent offense of “unlawful possession of a firearm” was prejudicial because most jurors would know that possession of a firearm, by itself, is not a criminal offense. He reasons jurors would infer a second phase of trial. However, this argument was rejected in Williams v. State, where the Court of Appeals held that by bifurcating the defendant’s SVF trial so that the jury would consider knowing possession of a firearm and the defendant’s SVF status separately, the trial court “avoid[ed] identifying [the defendant] as a ‘serious violent felon’ from the outset of trial.” 834 N.E.2d 225, 228 (Ind. Ct.App.2005). Because the trial court instructed the jury to consider whether Russell had “unlawfully” possessed a firearm and whether Russell was a SVF in two separate phases of trial, this argument fails.

Further, Russell claims that asking the jury to simultaneously determine whether he committed the non-existent offense of “unlawfully” possessing a firearm and whether he committed murder undermined his self-defense claim. If the defendant is committing another crime, immediately and causally connected to the defensive action, then the defendant cannot claim self-defense. Mayes v. State, 744 N.E.2d 390, 394 (Ind.2001). However, as the Court of Appeals observed,

[t]he trial court expressly informed the jury in instruction number 10:
As to Count II [“unlawful possession of a firearm”], if the jury determines that the Defendant lawfully exercised his right to self defense as to the allegations contained within Count I [murder], the Defendant may not be convicted of Unlawful Possession of a Firearm as the jury would have determined that the Defendant’s usage of the gun was, in fact, lawful.
However, should the jury conclude that the Defendant is not guilty of Count I for some reason other than self defense, the jury may then continue to deliberate on whether the State has proven the elements of Count II beyond a reasonable doubt.

Russell, 981 N.E.2d at 1286. Because this instruction informed the jury that Russell could not be “convicted” of “unlawful” possession of a firearm if they determined that he had lawfully exercised his right to self-defense, Russell’s self-defense claim was not undermined by the jury’s simultaneous consideration of both charges.

We affirm the trial court’s partial bifurcation in this instance. However, as the trial judge did here, we urge trial judges to exercise caution to ensure there is no prejudice to the defendant.

Conclusion

The trial court did not abuse its discretion by refusing to give Russell’s tendered jury instruction or by partially bifurcating Russell’s trial. Accordingly, we grant transfer and affirm Russell’s convictions.

DICKSON, C.J., RUCKER, MASSA, and RUSH, JJ., concur.

      . SVF status is the final element: “A serious violent felon who knowingly or intentionally possesses a firearm commits unlawful possession of a firearm by a serious violent felon.”


author: FRIEDLANDER, Judge.

text:
    In re the Matter of I.E.: J.E., Appellant, v. W.L. and R.L. and N.V., Appellees.
    No. 72A01-1212-JP-567.
    Court of Appeals of Indiana.
    Aug. 14, 2013.
    Ordered Published Oct. 11, 2013.
    Rehearing Denied Oct. 17, 2013.

      R. Patrick Magrath, Alcorn Goering & Sage, LLP, Madison, IN, Attorney for Appellant.
    Bryan L. Ciyou, Ciyou & Dixon, P.C., Indianapolis, IN, Attorney for Appellees.
   OPINION

FRIEDLANDER, Judge.

J.E. (Father) is the biological father of I.E.; N.V. (Mother) is I.E.’s biological mother. W.L. and R.L. (Guardians) were former guardians of I.E. This appeal involves questions concerning custody and visitation rights of the parties with respect to the child. It appears that the Guardians and Mother are joined as appellees in this appeal, and, unless otherwise indicated, we will refer to them collectively as the Appellees. For the sake of clarity, we will first address issues presented by the Ap-pellees upon cross-appeal. Those consolidated, restated issues are:

1. Did the trial court apply an incorrect standard in determining whether to grant Father’s motion for change of custody, and did the trial court err in granting Father’s motion?
2. Did the trial court err in granting visitation rights to the Guardians?

We restate the final issue, presented by Father upon direct appeal, as follows:

3. Did the trial court err in declining to grant reasonable visitation to Mother?

We affirm and reverse in part.

The facts are that I.E. was born sometime in September 2009 to Mother. Mother was married to another man, not Father, at the time. The Guardians took I.E. home from the hospital with the consent of Mother. On September 18, 2009, the Guardians filed a petition to adopt I.E. On October 6, 2009, Father filed a petition to establish paternity of I.E. under cause number 72C01-0910-JP-68 (the paternity action). On November 5, 2009, the Guardians petitioned to intervene in the paternity action. That petition was granted. On November 6, 2009, the Guardians filed a guardianship action under cause number 72 C01-091-GU-40 (the guardianship action). Shortly thereafter, Father filed a petition to intervene in the guardianship action. From that point on, the two causes were addressed at the same time.

The trial court granted the Guardians’ petition to establish temporary guardianship of I.E. Following a March 18, 2010 hearing, the trial court found that Father was I.E.’s father. I.E. remained in the sole care and custody of the Guardians until April 1, 2010 when Father was granted visitation pursuant to the Indiana Parenting Time Guidelines. On May 7, 2010, the parties reached an agreement following mediation. Pursuant to that agreement, the Guardians would have “joint legal and physical custody” of I.E., and Father and the Guardians would have specific times allocated for parenting time. Appellant’s Appendix at 27. Mother would also have parenting time, which she would exercise during the Guardians’ parenting time. Under this arrangement, the Guardians and Mother had I.E. approximately eight days every two weeks, while Father had the remainder. On December 15, 2011, Father filed petitions to terminate the guardianship and to modify custody. After granting two continuances at Mother’s request, the trial court held a hearing on May 15, 2012. On August 31, 2012, the trial court appointed a guardian ad litem for I.E. A second hearing was held on November 8, 2012.

On December 4, 2012 the trial court issued an order terminating the guardianship and granting custody of I.E. to Father. Further, the court granted visitation rights to the Guardians in the paternity action, as reflected in the following:

4. All future proceedings concerning the Child shall be conducted under Cause No. 72 C01-0910-JP-68. The Guardians are a party to the paternity case.
⅜ ⅜ ⅝ :}c ⅝ jj:
7. Having found that there is no legal reason for the continuation of the guardianship, there should be a transition to where the Guardians have a relationship with the Child that is consistent with a visitation relationship and not a joint custodian relationship.
8. At this time the Guardian shall have visitations schedule [sic] with Standard Indiana Parenting Time Guidelines with the exception that there shall be no extended visitation in the summer other than a one week visitation.
9. The Court makes no parenting time order for the Mother at this time as there is no formal motion before the Court on her behalf for parenting time; she has been limited in her contact with the Child and has exercised that parenting time at the home of the Guardians. The Court denies the Mother’s alternative motion for custody of the Child as there is no evidence to support such a finding that placement of the Child in her custody would be in the best interests of the Child.

Id. at 70.

1.

The Guardians contend the trial court applied an incorrect standard when ruling upon Father’s petition to modify custody, and that the court erred in granting the petition. According to the Guardians, the trial court erred in failing to require Father to show a substantial and continuing change of circumstances, which they claim is required for a modification. Further, they contend that the trial court erred in requiring the Appellees to show by clear and convincing evidence that Father was unfit, had long acquiesced in the current custody arrangement, or voluntarily relinquished I.E. in such a way that the affections of I.E. and the Guardians became interwoven so that severing them would seriously endanger LE.’s future happiness.

We have set out the standard of review for custody modifications, as follows:

We review custody modifications for abuse of discretion with a “preference for granting latitude and deference to our trial judges in family law matters.” Kirk v. Kirk, 770 N.E.2d 304, 307 (Ind.2002) (quoting In re Marriage of Richardson, 622 N.E.2d 178, 178 (Ind.1993)). Also, as with all cases tried by the court without a jury, the trial judge in this case entered special findings and conclusions thereon pursuant to Indiana Trial Rule 52(A). In reviewing findings made pursuant to Rule 52, we first determine whether the evidence supports the findings and then whether findings support the judgment. Stonger v. Sorrell, 776 N.E.2d 353, 358 (Ind.2002). On appeal we “shall not set aside the findings or judgment unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses.” Ind. Trial Rule 52(A). A judgment is clearly erroneous when there is no evidence supporting the findings or the findings fail to support the judgment. Fraley v. Minger, 829 N.E.2d 476, 482 (Ind.2005). A judgment is also clearly erroneous when the trial court applies the wrong legal standard to properly found facts. Id.

K.I. ex rel. J.I v. J.H., 903 N.E.2d 453, 457 (Ind.2009).

We start by considering K.I., a case that is factually similar to the present case, and a case in which the court discussed the circumstances under which custody of a child may be awarded to a party other than a natural parent. As was the case here, the child in K.I. was born out-of-wedlock. The father was not aware that the mother had been impregnated as a result of the relationship until after the baby was born. Approximately six weeks after the baby’s birth, the mother left the child in the custody of her mother (the grandmother). The grandmother and her husband filed a petition seeking guardianship of the child, and that petition was granted. During a chance encounter, the mother informed the father that a child had been born and showed him the child’s picture. The grandmother filed a petition to establish paternity, seeking an order declaring the father as the child’s biological father. She also sought an order awarding custody of the child to her (grandmother) and directing the father to pay child support. Subsequent genetic tests established a 99.89% probability that the father was the biological father of the child.

The parties thereafter entered an agreement providing that all of the parties, in-eluding the father, mother, and grandmother, would exercise visitation rights. The agreement also provided that grandmother would retain custody of the child. This arrangement was in place for approximately eighteen months, during which the father exercised regular visitation with the child. At that point, the father filed a petition for change of custody, seeking custody of the child. After a hearing, the trial court awarded custody of the child to her father and granted visitation rights to the grandmother. The grandmother appealed the change-of-custody award. In her appeal, the grandmother argued that the trial court applied the wrong legal standard for custody modification from a grandparent to a natural parent.

The Court began its analysis by disapproving language in a previous case from this court, i.e., “a burden shifting approach is the most appropriate way to protect parental rights and the best interests of the child.” Id. at 459 (quoting In re the Paternity of Z.T.H., 839 N.E.2d 246, 252 (Ind.Ct.App.2005)). The Court stated, “the distinctions between the statutory factors required to obtain initial custody and those required for a subsequent custody modification are not significant enough to justify substantially different approaches in resolving custody disputes,” because both require a determination of the child’s best interest and both require consideration of certain relevant factors. Id. at 460. The Court also stated, “importantly, Indiana courts have long held that ‘[e]ven when a parent initiates an action to reob-tain custody of a child that has been in the custody of another, the burden of proof does not shift to the parent[,] ... [rjather, the burden of proof is always on the third party.’ ” Id. (quoting In re Guardianship of J.K., 862 N.E.2d 686, 692 (Ind.Ct.App. 2007)). This is because a “burden shifting regime that places ‘the third party and the parent on a level playing field’ is inconsistent with this State’s long-standing precedent.” Id. (quoting In re the Paternity of Z.T.H., 839 N.E.2d at 253). The Court indicated that this principle applied not only to parents seeking to reobtain custody, but also to parents who never had custody in the first place.

The Court described with specificity the allocation of the burden of proof in cases such as the present case, as follows:

It is of course true that a party seeking a change of custody must persuade the trial court that “(1) modification is in the best interests of the child; and (2) there is a substantial change in one (1) or more of the factors that the court may consider under section 2 and, if applicable, section 2.5 of this chapter.” I.C. § 31-14-13-6; see also Heagy v. Kean, 864 N.E.2d 383, 388 (Ind.Ct.App.2007) (holding that “[mjodification of child custody may occur only when a parent can demonstrate ‘modification is in the best interests of the child, and there is a substantial change in one or more factors the court may consider.’”). But these are modest requirements where the party seeking to modify custody is the natural parent of a child who is in the custody of a third party. The parent comes to the table with a “strong presumption that a child’s interests are best served by placement with the natural parent.” B.H., 770 N.E.2d at 287. Hence the first statutory requirement is met from the outset. And because a substantial change in any one of the statutory factors will suffice, “the interaction and interrelationship of the child with ... the child’s parents,” see Indiana Code Section 31-14-13-2(2)— one of grounds on which the trial court relied in this case — satisfies the second statutory requirement. In essence, although in a very technical sense, a natural parent seeking to modify custody has the burden of establishing the statutory requirements for modification by showing modification is in the child’s best interest, and that there has been a substantial change in one or more of the enumerated factors, as a practical matter this is no burden at all. More precisely, the burden is minimal. Once this minimal burden is met, the third party must prove by clear and convincing evidence “that the child’s best interests are substantially and significantly served by placement with another person.” B.H., 770 N.E.2d at 287. If the third party carries this burden, then custody of the child remains in the third party. Otherwise, custody must be modified in favor of the child’s natural parent.

Id. at 460-61.

In light of the foregoing, the appellees are correct: the trial court in the present case applied an incorrect standard, at least in a technical sense. Father was indeed required to prove that modification is in the best interests of I.E., and that there is a substantial change in one or more of the factors that the court may consider under Ind.Code Ann. § 34-14-13-2(2) (West, Westlaw current with all 2013 legislation). As our Supreme Court noted, however, the “best interest” requirement is met from the outset because of the strong presumption that a child’s best interests are served by placement with the natural parent. In order to satisfy his burden with respect to the second element, Father was required to establish that there had been a substantial change in any one of the factors listed in I.C. § 34-14-13-2(2). The trial court did not enter an explicit finding with respect to any of those factors, which is not surprising in light of the fact that the trial court did not seek to apply this standard in the first place. It did, however, make findings sufficient to permit us to conclude that at least two of the factors in Section 2 were established, especially in light of the fact that the Supreme Court described the burden pertaining to this element as “minimal”. K.I. ex rel. J.I. v. J.H., 903 N.E.2d at 460. The record clearly demonstrates that there has been a change with respect to Father’s wishes concerning custody of I.E., and there has been a change with respect to the interaction and interrelationship between I.E. and Father. See I.C. § 31-14-13-2(2) & (4), respectively. Therefore, under the correct standard, Father carried his burden.

At that point, the burden shifted to the Guardians to “prove by clear and convincing evidence ‘that the child’s best interests are substantially and significantly served by placement with another person.’ ” K.I. ex rel. J.I. v. J.H., 903 N.E.2d at 460 (quoting In re Guardianship of B.H., 770 N.E.2d 283, 287 (Ind.2002)). The Court described the contours of this burden as follows:

The trial court must be convinced that placement with a person other than the natural parent represents a substantial and significant advantage to the child. The presumption will not be overcome merely because “a third party could provide the better things in life for the child.” Hendrickson, 161 Ind.App. at 396, 316 N.E.2d at 381. In a proceeding to determine whether to place a child with a person other than the natural parent, evidence establishing the natural parent’s unfitness or acquiescence, or demonstrating that a strong emotional bond has formed between the child and the third person, would of course be important, but the trial court is not limited to these criteria. The issue is not merely the “fault” of the natural parent. Rather, it is whether the important and strong presumption that a child’s interests are best served by placement with the natural parent is clearly and convincingly overcome by evidence proving that the child’s best interests are substantially and significantly served by placement with another person.

In re Guardianship of B.H., 770 N.E.2d at 287. In the present case, the trial court described the Guardians’ burden in the following terms:

[the Guardians were required to prove] by clear and convincing evidence either, a), unfitness on the part of the parent, b). long acquiescence in the third party’s custody of the child, or c). voluntary relinquishment of the child such that the affections of the child and the third-party have become interwoven [such] that to sever them would seriously mar and endanger the future happiness of the child.

Appellant’s Appendix at 69. The burden thus identified by the trial court is taken from Hendrickson v. Binkley, 161 Ind.App. 388, 316 N.E.2d 376 (1974), cert. denied, 423 U.S. 868, 96 S.Ct. 131, 46 L.Ed.2d 98 (1975). In In re Guardianship ofB.H., the Court indicated that, although the Hendrickson three-step test is still valid, the trial court is no longer limited to those three factors.

In the present case, however, we cannot perceive any factors the court would have considered under the broadened scope of In re Guardianship of B.H. that it did not consider under the Hendrickson three-step test. Therefore, although the trial court did not apply the correct test, the test it did apply included only factors that are nevertheless properly considered under the test enunciated in In re Guardianship ofB.H. In other words, on the facts of this particular case, all of the evidence that would have been relevant to the court’s determination under either test was presented and considered by the court in reaching its conclusions.

Without weighing the evidence or assessing witness credibility, and considering only the probative evidence and reasonable inferences supporting the judgment, we are satisfied that sufficient evidence supports the judgment. See In re Guardianship of B.H., 770 N.E.2d 283. The evidence established that since the time he was apprised of the child’s existence, Father has, as the trial court stated, “done exactly what the law and society expects of him when faced with the birth of a child born out of wedlock, he has vigorously and appropriately pursued what is his right, to be a father to his son.” Appellant’s Appendix at 70. The evidence further established that Father had suitable housing and was gainfully employed, and thus was both willing and able to provide for I.E. In light of this evidence, the trial court did not abuse its discretion in concluding that the Guardians failed to present evidence that clearly and convincingly established that I.E.’s best interests would be substantially and significantly served by continued placement with the Guardians, such as to overcome the “strong presumption” that custody of I.E. should be given to his natural father. See K.I. ex rel. J.I. v. J.H., 903 N.E.2d at 460.

2.

This brings us to Father’s issue, i.e., which is whether the trial court erred in granting visitation to the Guardians. As our Supreme Court noted in Worrell v. Elkhart Cnty. Office of Family & Children, 704 N.E.2d 1027, 1029 (Ind.1998), this court historically developed a two-part test for determining whether to grant visitation to third parties, i.e., nonparents. “To establish grounds for visitation, a third party must demonstrate the existence of a custodial and parental relationship and that visitation would be in the children’s best interest.” Francis v. Francis, 654 N.E.2d 4, 7 (Ind.Ct.App.1995), trans. denied. As the Supreme Court noted, “[u]n-der this regime, the first issue is standing and the second ‘is the standard by which the question of visitation is adjudged after the cognizable right is established. Worrell v. Elkhart Cnty. Office of Family & Children, 704 N.E.2d at 1029. In order to proceed to the substance of a visitation request, the seeking party must satisfy “the threshold requisite of [a] custodial and parental relationship.” Id. (quoting Worrell v. Elkhart Cnty. Office of Family & Children, 692 N.E.2d 929, 931 (Ind.Ct.App.1998), vacated, 704 N.E.2d 1027). At that point in the development of the law, the question was whether visitation rights extended to third parties other than stepparents. In Worrell, the Court resolved this question, stating, “[w]e agree with the prior holdings limiting standing to stepparents, and we now hold that the test does not extend to foster parents.” Id.

An argument can be made that King v. S.B., 837 N.E.2d 965 (Ind.2005) signaled a retreat from the holding in Worrell, with respect to restrictions and to who may seek third-party visitation rights. Even a casual reading of the majority’s opinion, as well as Chief Justice Shepard’s special concurrence, however, indicates that we should be cautious in- reading too much into the case, especially on that point.

This court recently addressed the question of third-party visitation in circumstances similar to those in the present case, at least with respect to several significant factors. In Kitchen v. Kitchen, 953 N.E.2d 646 (Ind.Ct.App.2011), the mother and father divorced, and the settlement agreement provided that mother would have primary physical custody of the child of the marriage. Before the mother’s death, Mother and the child lived with the Lakes, the mother’s maternal aunt and uncle, for a little more than a year. A few days before the mother’s death, the father petitioned for immediate primary physical custody of the child. On the same day, the Lakes filed a guardianship petition seeking appointment as guardians of the child. Ultimately, the father and the Lakes entered into an agreement providing that the Lakes would be granted temporary custody of the child and the father would exercise parenting time. The trial court approved the agreement and entered an order accordingly. Eventually, the trial court awarded custody of the child to the father and awarded supervised visitation to the Lakes. Neither party appealed this order. Approximately nine months later, the father filed a petition asking the court to vacate the portion of the previous order granting visitation to the Lakes. The trial court denied the father’s petition, ruling that the time for challenging the trial court’s order had passed. The father appealed.

This court concluded that the trial court was without authority to grant visitation rights to the Lakes, explaining:

Parental rights are matters of constitutional import protected by the Fourteenth Amendment to the United States Constitution.... Accordingly we adhere to the limitation of our statutes and case law conferring standing only to parents, grandparents and step-parents. The trial court erred in concluding that it had the authority to grant third-party visitation to persons other than parents, step-parents, or grandparents.

Id. at 649-50 (internal citation to authority omitted). Thus, this court reaffirmed that only parents, step-parents, and grandparents may be granted visitation rights. In Worrell v. Elkhart County Office of Family & Children, our Supreme Court clarified that this rule excludes foster parents, explaining, “an expansion of the class of petitioners with standing to request visitation to include foster parents ‘should occur in a legislative, not judicial, forum.’ ” 704 N.E.2d at 1029 (quoting Collins v. Gilbreath, 403 N.E.2d 921 (Ind.Ct.App.1980)).

In light of these holdings, the trial court erred in granting visitation rights to the Guardians. Moreover, in Kitchen, this court rejected an argument that a challenge to an order erroneously granting visitation rights to third parties other than parents, step-parents, and grandparents is subject to timeliness restrictions. The court explained,

An order is void where the trial court lacks the authority to act.... Here, the trial court lacked the authority to grant visitation to the Lakes because they did not have standing to petition for visitation with [the child]. Because the lack of standing cannot be cured, that portion of the June 26 order granting visitation rights to the Lakes is void.

Kitchen v. Kitchen, 953 N.E.2d at 651.

As our Supreme Court has observed, “[t]he distinction between a void and voidable judgment is no mere semantic quibble.” Stidham v. Whelchel, 698 N.E.2d 1152, 1154 (Ind.1998). “A void judgment is one that, from its inception, is a complete nullity and without legal effect. ...” Id. (quoting 46 Am.Jur.2d Judgments § 31 (1994)). On the other hand, a voidable judgment is not a nullity, and may be confirmed or ratified. Stidham v. Whelchel, 698 N.E.2d 1152.

To review, the most recent authority on the issue presented by Father is espoused in Kitchen, which clarified that “only ... parents, grandparents and step-parents” have standing to seek visitation, and that courts have no authority to grant third-party visitation to persons other than parents, step-parents, or grandparents. Kitchen v. Kitchen, 953 N.E.2d at 650. The trial court’s order in contravention of Kitchen is void. See Kitchen v. Kitchen, 953 N.E.2d 646. Therefore, we reverse the trial court’s order granting visitation rights to the Guardians.

3.

Finally, the Appellees contend that the trial court erred in failing to grant visitation rights to Mother. When reviewing a trial court’s determination with regard to parenting time, we grant latitude and deference to the trial court and will reverse only for an abuse of discretion. In re Paternity of C.H., 936 N.E.2d 1270 (Ind.Ct.App.2010), trans. denied. An abuse of discretion occurs if the decision is clearly against the logic and effect of the facts and circumstances before the trial court. Id. No abuse of discretion will be found if there is a rational basis for the trial court’s determination. Id.

Mother was a relatively passive participant in the change-of-custody proceeding below. The only request she made at the hearing, so far as we can tell, is the following:

Your Honor, I would very briefly [sic] because if the Court does make a decision as to in some way terminate the guardianship and making [sic] a change of custody, ... my client wants custody, if the court makes that kind of determination. She doesn’t think there’s sufficient evidence here to make a modification frankly Your Honor, but if there is then....

Appellant’s Appendix at 68. Thus, Mother requested only that, if the trial court dissolved the Guardians’ guardianship, she wanted custody of I.E.

Although they concede that Mother “did not specifically file a written request for parenting time,” the Appellees appear to contend that the court’s previous order, which was based upon the mediated settlement, obligated the court to provide for such visits. Appellees’ Brief at 13. Once again, the Appellees couch their arguments in terms of a misallocated burden of proof. They contend that the trial court erroneously required Mother to show that father was unfit in order to preserve visitation rights with I.E. Be that as it may, a trial court cannot be said to err in failing to grant a request that was not made. Mother did not request visitation with the child, and therefore the trial court did not err in failing to award it.

Judgment affirmed in part and reversed in part.

BARNES, J., and CRONE, J., concur.


author: BAILEY, Judge.

text:
    Judith (Lund) PHERSON, Appellant-Petitioner, v. Michael LUND, Appellee-Respondent.
    No. 52A04-1304-DR-180.
    Court of Appeals of Indiana.
    Oct. 15, 2013.

      Jeffry G. Price, Peru, IN, Attorney for Appellant.
    Katherine J. Noel, Noel Law, Kokomo, IN, Attorney for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Judith Lund Pherson (“Wife”) appeals the denial, in substantial part, of her motion to correct error, which challenged a post-dissolution order in response to a motion by Michael Lund (“Husband”) for clarification of a pension-fund provision of a property settlement agreement incorporated into a divorce decree. Wife presents the sole issue of whether the trial court erroneously modified the property settlement agreement. We affirm.

Facts and Procedural History

The parties were married on June 9, 1979. Their marriage was dissolved on September 23, 1991. They executed a property settlement agreement in October of 1991 (“the Agreement”); on October 24, 1991, the dissolution court approved the Agreement.

For several years prior to the marriage and throughout the marriage, Husband had been employed by Norfolk and Southern Railroad a/k/a Norfolk and Western Railway Company (“the Railroad”). His employee benefits included non-divisible (income security) Tier I benefits and divisible Tier II (retirement) benefits. With regard to Husband’s Tier II benefits, the Agreement provided:

Husband ... is presently entitled to benefits provided under the Railroad Retirement Act. Section 14 of the Act as amended provides that the “Tier II Component” may be subject to division by a Dissolution of Marriage Decree. The Wife shall be awarded and is entitled to one-half of the Husband’s “Tier II” portion of benefits subject to division under Section 14 of the Railroad Retirement Act as amended, and if available at the time of distribution the Railroad Retirement Board will pay directly to the Wife said 50% portion of the “Tier II” benefits as set out above.

(App. 24.) On October 28,1991, the dissolution court entered an order with respect to the Tier II benefits, providing in pertinent part:

Judith Lund, Petitioner, is awarded and the Railroad Retirement Board is directed to pay an interest in the portion of Michael T. Lund, social security number XXX, benefits under the Railroad Retirement Act (45 U.S.C. Section 231, et seq.) which may be divided as provided by Section 14 of that Act (45 U.S.C. Section 231m). Judith Lund’s share shall be fifty percent (50%) of the Tier II portion of the benefits of Michael T. Lund.

(App. 27.) After the dissolution, Husband continued to work for the Railroad and receive additional retirement contributions for 18 ½ years. When Husband retired after approximately forty-two years of continuous employment, the Railroad Retirement Board began paying Wife one-half of the total Tier II monthly benefit attributable to those forty-two years of service.

Husband sought clarification of the Agreement and the corresponding order, asserting the position that Wife had, in effect, been receiving non-marital property. Wife sought dismissal of the motion, contending that a property division agreement, accepted by the dissolution court, cannot be modified. At the conclusion of a hearing conducted on January 11, 2013, the trial court took the matter under advisement and invited post-hearing written submissions from the parties.

On January 26, 2013, the trial court entered an order to “clarify ambiguity” and “effectuate the parties’ intent.” (App. 18.) In so doing, the trial court specified that the 18 ½ years of pension contributions post-dissolution “had not been earned and did not exist at the time of final separation” and were not divisible as a marital asset. (App. 17.) Wife filed a motion to correct error. In response, the trial court entered an order on March 19, 2013, correcting a typographical error and specifying a coverture fraction. Wife now appeals.

Discussion and Decision

Wife contends that the trial court improperly modified the Agreement and corresponding dissolution court order. Indiana Code section 31 — 15—2—17(c) provides: “The disposition of property settled by an agreement described in subsection (a) and incorporated and merged into the decree is not subject to subsequent modification by the court, except as the agreement prescribes or the parties subsequently consent.” Indiana Code section 31 — 15— 7-9.1(a) provides: “The orders concerning property disposition entered under this chapter ... may not be revoked or modified, except in case of fraud.” Accordingly, a court lacks authority to modify a property settlement agreement or a property division order. Ryan v. Ryan, 972 N.E.2d 359, 363 (Ind.2012).

Notwithstanding the prohibition against modification, a court does not lack authority to resolve a dispute over the interpretation of a settlement agreement or property division order. Id. “When a party asks ,a court to clarify a settlement agreement, the court’s task is one of contract interpretation. This is because settlement agreements are contractual in nature and binding if approved by the trial court.” Id. When interpreting a settlement agreement, we apply the general rules of contract construction; that is, unless the terms of the contract are ambiguous, they will be given their plain and ordinary meaning. Shorter v. Shorter, 851 N.E.2d 378, 383 (Ind.Ct.App.2006).

“Our Supreme Court has determined that the dissolution court that enters a property settlement agreement is in the best position to resolve questions of interpretation and enforcement of that agreement and thus retain[s] jurisdiction to interpret the terms of their property settlement agreements and to enforce them.” Id. This task “remains an exercise in the construction of the terms of a written contract,” which is a pure question of law, and thus our standard of review is de novo. Id.

In pertinent part, the trial court concluded:

It is clear that property acquired by one spouse in his or her own right after final separation should not be considered a mai’ital asset subject to division. See I.C. 31 — 15—7—4(a) and In re Marriage of Osborne [174 Ind.App. 599], 369 N.E.2d 653, 655 (Ind.App.1977). In the case at bar, the Respondent worked at his job, earning 18½ additional years’ worth of Tier II benefits after the parties were divorced. That portion of the Tier II benefits normally would not be subject to division by the divorce court, since the benefits had not been earned and did not exist at the time of final separation.

(App. 17.) As such, the trial court concluded that the pension contributions in the 18 ½ years since the dissolution were after-acquired property beyond the scope of the settlement agreement to divide. We agree with the trial court.

Pursuant to Indiana Code section 31-9-2-98, “property” in actions for dissolution includes a present right to withdraw pension or retirement benefits, the right to receive pension or retirement benefits that are vested but payable after the dissolution of marriage, and the right to receive disposable retired or retainer pay acquired during the marriage that is or maybe payable after the dissolution of marriage. At the time of the dissolution, Husband had a vested right to pension benefits and thus those benefits were properly divisible. However, the property subject to division is that owned prior to marriage or acquired after the marriage but before the final separation of the parties and thus does not include post-dissolution employer contributions to a retirement fund. See I.C. § 31-15-7-4(a), providing:

In an action for dissolution of marriage under IC 31-15-2-2, the court shall divide the property of the parties, whether:
(1) owned by either spouse before the marriage;
(2) acquired by either spouse in his or her own right;
(A) after the marriage; and
(B) before final separation of the parties; or
(3) acquired by their joint efforts,

(emphasis added.) Accordingly, the Legislature has provided that property acquired by one spouse in his or her own right after final separation should not be considered a marital asset subject to division by the dissolution court. In re Marriage of Osborne, 174 Ind.App. 599, 369 N.E.2d 653, 655 (1977). In particular, “trial courts are asked to do tasks such as place values on pensions which have vested in possession only, but for which the amount of benefits has yet to be determined” but “when trial courts do so they must determine the value of the asset as it is currently held because trial courts cannot divide future earnings of a party in anticipation that they will be earned.” Alexander v. Alexander, 927 N.E.2d 926, 939 (Ind.Ct.App.2010), trans, denied.

It is true that Indiana law “encourages” divorcing spouses to reach agreements and the spouses “have more flexibility in crafting their own property settlement agreements than do divorce courts.” Wilson v. Wilson, 716 N.E.2d 486, 489 (Ind.Ct.App.1999). Parties may agree to provisions which a trial court has no statutory authority to order. Id. For example, Husband and Wife in this case could have agreed to divert Husband’s after-acquired funds to Wife as alimony or maintenance. However, the Agreement is devoid of any language suggesting this intent. We agree with the trial court that the Agreement was not intended to divide the future earnings of one spouse. Its sole objective was to divide property acquired before the date of final separation.

Wife has strenuously argued that the instant matter is almost identical to a spousal agreement to divide “any proceeds” of a personal injury claim, addressed in Dusenberry v. Dusenberry, 625 N.E.2d 458, 463 (Ind.Ct.App.1993). In Dusenberry, when the wife petitioned for marital dissolution, the spouses had a pending lawsuit for injuries incurred in an automobile accident, and they agreed that each would receive one-half of the proceeds from the claim. Id. at 460. After incurring unanticipated medical expenses, the wife moved to set aside the property settlement provision related to the lawsuit proceeds and the trial court granted Indiana Trial Rule 60(B) relief. See id. On appeal, this Court reversed the trial court order, observing that the cause of action had accrued pre-separation and the parties had agreed “for the purpose of their settlement to treat the same as if it were a vested marital asset.” Id. at 462. The Dusenberry Court held that the wife’s petition was “an impermissible attempt to modify the property settlement agreement.” Id. at 463.

Although, as recognized by the Dusen-berry Court, the dissolution court could not have divided a contingent interest, the parties had agreed to do so, and their agreement was enforceable. Wife claims that she and Husband likewise agreed to an equal division of a sum uncertain. In fact, they had during dissolution proceedings obtained a letter from the Railroad Retirement Board setting forth the anticipated payment based upon then-accrued contributions. (Resp.Ex.A.) To the extent that the ultimate value of the Tier II benefits was unknown at the time of dissolution, it is because of ongoing contributions attributable to the post-dissolution employment and efforts of Husband. Dusenberry is clearly distinguishable, as there was a singular event, a tort, giving rise to the expectation of payment and such event took place during the marriage.

The agreement in this case simply failed to assign a value to the vested pension exclusive of future contributions. It fell to the trial court to do so. Generally, a dissolution court may, when valuing a marital asset, select a date between the filing of the dissolution petition and the date of the final hearing. Eyler v. Eyler, 492 N.E.2d 1071, 1074 (Ind.1986). Here, the valuation date ultimately selected by the trial court to correspond to the 50/50 split was that most favorable to Wife, the date of the final hearing on property distribution. The coverture fraction reflects this valuation date; we find no error.

Conclusion

The trial court did not impermissibly modify a property settlement agreement or decree. Rather, the trial court clarified that the intent of the parties was to divide the marital property, that is, property acquired before the marriage or after the marriage and before the final date of separation.

Affirmed.

MAY, J., and BRADFORD, J., concur.

      . The marriage of the parties was dissolved on September 23, 1991. The trial court should have selected this date, the date of final hearing, See I.C. § 31-15-2-10, as the latest date for valuation. However, the selection of the one-month-later date of the final property order, October 24, 1991, would have a de min-imis effect on the property distribution and we leave it undisturbed.


author: BAKER, Judge.

text:
    FSF PRESIDENTIAL ESTATES, Associates, LLC, individually and d/b/a Presidential Estates Apartments and Indianapolis Power & Light Appellants-Defendants, v. Joshua GROUNDS, Appellee-Plaintiff. Fleener Roofing & Guttering, LLC, Intervening Defendant.
    No. 49A05-1305-CT-209.
    Court of Appeals of Indiana.
    Oct. 17, 2013.
    Ordered Published Nov. 14, 2013.
    Mark D. Gerth, Nicholas W. Levi, Thomas J. Jarzyniecki, Kightlinger & Gray, LLP, Indianapolis, IN, Attorneys for Appellant.
    John P. Daly, Jr., Golitko & Daly PC, Indianapolis, IN, Attorney for Appellee.
   OPINION

BAKER, Judge.

In this case, this Court has been fortunate that counsel from both sides have shown such able advocacy and, when appropriate, vehemently argued or defended their respected positions and highlighted the designated facts in support of those positions. But such vehement advocacy also demonstrates why the trial court was correct in denying summary judgment in this case — there are genuine issues of material fact that need to be determined by the fact-finder, namely, whether a duty existed.

What is undisputed is that appellee-plaintiff Joshua Grounds, an outdoor maintenance worker, was replacing the gutters on two apartment buildings in Indianapolis. Grounds finished working on the first building without incident, but while working on the second apartment building, Grounds’s ladder came into contact with some power lines, resulting in serious electrical injury. Grounds filed a complaint alleging negligence against appellants-defendants Presidential Estates Apartments and Indianapolis Power and Light (IPL) (collectively, “the Appellants”). Grounds and the Appellants filed motions for summary judgment which were subsequently denied. This interlocutory appeal now ensues.

FACTS

Presidential Estates operates an apartment complex in Indianapolis. In May 2009, Fleener Roofing, who employed Grounds, was hired to do replacement work on the gutters of two of the buildings located in the complex, including replacing the soffit, gutter boards, and gutters. Besides Shane Fleener, the owner, and Grounds, there was one other employee.

On May 4, 2009, Fleener and his crew completed the work on the first building during the morning and before breaking for lunch, Fleener and his employees evaluated the second building to gauge the amount of work that needed to be done. Fleener stated in a deposition that his crew knew that fiberglass ladders had to be used because they were aware that there were power lines in close proximity as shown below.

After lunch, Fleener and his employees started working on the second building. After repairing the soffit, they prepared to hang the new gutters. Grounds began moving a twenty-four foot aluminum ladder approximately four feet so that they could begin hanging gutters. As Grounds was moving the ladder, it came into contact with an overhead power line, and he was injured. Grounds had no memory of the incident. The line with which Grounds’s ladder came into contact with was the primary line servicing the apartment complex and it carried 13.8 kilovolts (phase to phase) and 7.97 (phase to ground) of electricity before being lowered at a transformer to a consumption voltage.

The power line in question was owned and operated by IPL to provide electrical service to the Presidential Estates Apartment Complex. IPL was neither informed that Fleener Roofing was going to be working near the power lines that day nor did anyone request that IPL de-energize its power lines that day.

On September 15, 2009, Grounds filed suit against Presidential Estates and IPL to recover the damages that he incurred from being electrocuted. On September 12, 2012, Presidential Estates and IPL filed motions for summary judgment. On December 14, 2012, Grounds filed a cross-motion for partial summary judgment on the issue of duty.

On March 13, 2013, the trial court entered an order granting the motion for summary judgment filed by Presidential Estates but denying the motion for summary judgment filed by IPL and the cross-motion for partial summary judgment filed by Grounds. On March 25, 2013, IPL filed a motion to certify for interlocutory appeal the trial court’s order denying summary judgment. On April 17, 2013, the trial court granted IPL’s motion and certified its order for interlocutory appeal.

On May 8, 2013, IPL filed its amended motion requesting this Court to accept jurisdiction over the permissive interlocutory appeal. On June 7, 2013, this Court granted IPL’s amended motion and accepted jurisdiction over this appeal pursuant to Appellate Rule 14(B). This interlocutory appeal now ensues.

DISCUSSION AND DECISION

IPL argues that the trial court erred by holding that there was a question of fact regarding whether IPL owed a duty to Grounds because, according to IPL, its designated evidence established that its power lines were not accessible to the general public and that Grounds was not regularly exposed to the power lines because he was part of a work crew performing repairs.

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Ins. Co. v. Am. Cmty. Servs. Inc., 718 N.E.2d 1147, 1152 (Ind.Ct.App.1999). We review a trial court’s grant or denial of a motion for summary judgment de novo. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009).

Grounds’s claim sounds in negligence. To prevail on a negligence claim, a plaintiff must show (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff that was proximately caused by the defendant’s breach of the duty. Williams v. Cingular Wireless, 809 N.E.2d 473, 476 (Ind.Ct.App.2004). Because Grounds’s claim is for negligence, summary judgment must be carefully considered because such cases are particularly fact sensitive and are governed by the objective reasonable person standard, which is best applied by the jury after hearing all the evidence. Cox v. N. Ind. Pub. Serv. Co. Inc., 848 N.E.2d 690, 696 (Ind.Ct.App.2006).

Duty exists according to the relationship of the parties, reasonable foreseeability of harm, and public policy. Webb v. Jarvis, 575 N.E.2d 992, 995 (1991). While the issue of duty is generally a question of law, factual determinations such as whether a relationship existed between the parties may be interwoven, making the ultimate determination of whether a duty existed a mixed question of law and fact. Helmchen v. White Hen Pantry, 685 N.E.2d 180, 181 (Ind.Ct.App.1997).

In Brown v. Northern Indiana Public Service Co., (NIPSCO), a construction laborer was injured when, while working in a construction yard, the crane that he was operating came in contact with an uninsulated high voltage wire running over the construction yard. 496 N.E.2d 794, 795 (Ind.Ct.App.1986). Brown filed a complaint alleging that NIPSCO was negligent for placing the power lines at an unsafe height, which did not allow for the safe operation of the crane. Id.

On the issue of duty, the Brown, Panel recognized the general rule that “insulation is not required when the lines are sufficiently isolated so that the general public could not reasonably be anticipated to be dangerously close to the lines.” Id. at 797. The panel also recognized that an electric utility is not required to insulate to protect only those individuals who might come in contact with power lines during the course of their employment. Id. Nevertheless, an exception is made when the utility knows or has knowledge of facts that a particular segment of the population will be regularly exposed to uninsulated wires for whatever reasons. Id.

Here, the property at issue is an apartment complex, which will require frequent maintenance and, consequently, various maintenance personnel will frequently be on the premises. Additionally, William Wentworth, an expert from IPL, conceded that the power lines were too close and too low to satisfy the National Electrical Safety Code. Appellant’s App. p. 147-48. Indeed, from the photographs, it appears that the power lines were quite low. Appellant’s App. p. 209-210 (exhibits from William Wentworth’s deposition as shown in the FACTS). In light of these facts, we cannot say that the trial court erred by denying IPL’s motion for summary judgment, and we affirm the judgment of the trial court. Compare Spudich v. N. Ind. Public Serv. Co., 745 N.E.2d 281, 292 (2001) (finding that NIPSCO owed no duty where its designated evidence showed that its power lines were elevated forty feet and that the plaintiff was not in regular contact with the lines, but worked only once a year in the vicinity of the power lines to hang Christmas lights for his employer).

The judgment of the trial court is affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.

      . We note that we found numerous mistakes in appellant’s citation to caselaw. Many citations were not to the cases to which the appellant intended to cite and at least one other did not support the appellant's contention. Moreover, there were numerous missing pinpoint citations. We caution counsel to be more meticulous in the future.