A man who opened fire in a busy Indianapolis intersection after he claimed he was trying to make a citizen’s arrest of a suspected iPad thief was improperly convicted of one of two charges that may have constituted double jeopardy, the Indiana Court of Appeals ruled Wednesday.
The appellate panel vacated, sua sponte, Larry Ervin’s Level 6 felony conviction of pointing a firearm, finding this may have included acts for which he also was convicted when a Marion County jury found him guilty of the more serious count, Level 5 felony criminal recklessness.
Ervin was sentenced to three years in prison, with six months executed. He was convicted for firing a gun at a vehicle after he had used his “Find My Phone” app to track his iPad that was missing after he had helped a neighbor with a car repair. As he saw the device moving around the city on the app, he decided to follow it. He used the app to track the iPad’s apparent location to a black truck that he thought he’d seen while he was helping his neighbor.
Ervin then stopped his truck in the middle of the intersection of Southeastern Avenue and Sherman Drive in Indianapolis and approached driver Anthony Hines in an attempt to get his iPad back, shouting “Stop, freeze, stop,” according to court records.
“Hines then noticed Ervin was pointing a gun at him,” Judge Melissa May wrote for the panel. “Hines did not realize a vehicle was behind him, and he put his truck in reverse and backed into that vehicle — a Kia Sorento. Without stopping, Hines made a “right U-turn[,]” … and started to drive away. He heard Ervin start firing at him, ‘like [Ervin] peppered [Hines’] truck.’ Hines executed the U-turn on the shoulder near a gas station. After verifying Ervin was not following him, Hines called 911 and went home. Hines talked to police at his home.”
Ervin also called police who quickly responded to the scene where an officer said he saw “several people in the [gas station] parking lot, in the grass area, yelling and waving their hands.” They were yelling that Ervin was the shooter and had a gun.
After talking to the Kia driver and multiple other witnesses, Ervin was arrested and ultimately convicted as charged.
On appeal, Ervin challenged jury instructions, arguing the court erroneously failed to provide his instruction on property defense and defense of others. That argument fails, the COA reasoned, because “Ervin could not have been acting in defense of his property or others as he was not in a place he was allowed to be — blocking an intersection — and as he instigated and provoked the situation.”
The COA also found sufficient evidence was presented to support Ervin’s conviction, turning back his other argument on appeal. But the panel on its own found cause to vacate his conviction on the charge of pointing a firearm.
“While the jury may have based its verdict on the fact Ervin approached Hines’ truck with the gun pointed at the truck, an action that could reasonably be presumed to be separate from Ervin pulling the gun immediately prior to shooting, the jury was also free to use the drawing of the gun immediately before Ervin started firing to support both charges. Therefore, there is a reasonable probability that a double jeopardy violation occurred. Accordingly, the lesser charge of pointing a firearm must be vacated,” May wrote for the panel.
The case is Larry Ervin v. State of Indiana, 18A-CR-965.