FOR PUBLICATION

ATTORNEY FOR APPELLANT:    ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER    JEFFREY A. MODISETT
Indianapolis, Indiana    Attorney General of Indiana

             PRISCILLA J. FOSSUM
            Deputy Attorney General
            Indianapolis, Indiana

ALONZO CARSON,                                    )
                                                       )
    Appellant-Defendant,                               )
                                                       )
        vs.                                            )    No. 49A02-9512-CR-716 
                                                       )
STATE OF INDIANA,                                      )
                                                       )
    Appellee-Plaintiff.                                )

                                                   

                    APPEAL FROM THE MARION SUPERIOR COURT
         The Honorable William T. Robinette, Judge Pro Tempore
 Cause No. 49G05-9212-CF-170200
                        
                                             

     Alonzo Carson (Carson) appeals his conviction of Involuntary Manslaughter and raises the following issuesSee footnote 1 :
    I.    Whether the trial court erred in instructing the jury on the use of deadly force in self-defense when the instructions did not inform the jury that a person may act in self-defense to prevent the commission of a forcible felony.

    II.    Whether the evidence was sufficient to support the judgment of the trial court.
    
    We reverse and remand.

    The State charged Carson with involuntary manslaughter for Cary Ransom's death. After a jury trial, Carson was found guilty, and this appeal ensued.

N.E.2d at 311. The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Fox v. State, 497 N.E.2d 221, 225 (Ind. 1986). Therefore, to preserve error for appeal, Carson need only have made a timely objection to the instruction; he was not required to tender his own corrective instruction. Carson made a timely objectionSee footnote 2 , and the issue is whether the instruction was a correct statement of the

law.
     The trial court's instruction on the use of deadly force in self-defense is as follows:
    "INSTRUCTION NO. 15g
        A person may use deadly force only if he reasonably believes the force is necessary to prevent serious bodily injury or harm to himself or another.
        The question of the existence of an apparent danger and the amount of force necessary to resist force, can only be determined from the standpoint of

the defendant, at the time and under the then existing circumstances. The defendant may use such force as may reasonably be necessary to resist such attack or apparent attack. He will not be accountable for an error in judgement as to the amount of force necessary, provided he acted reasonably and honestly. One who was in no apparent danger and had no reasonable ground for apprehension of danger cannot raise this defense."
    
    Record at 80. (Emphasis added).
     Carson asserts that the first sentence of the instruction is an incorrect statement of the law because it omits prevention of a forcible felony as a justification for the use of deadly force. Carson is correct in his assertion. IC 35-41-3-2(a) states, in part, "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 to a third person or the commission of a forcible felony." (Emphasis added).
     Instruction 15g was an incorrect statement of the law because it did not accurately state the law on the use of deadly force in self-defense, an essential aspect of Carson's defense. Thus, the incorrect instruction given to the jury over Carson's objection interfered with the formation of a just, fair, and correct verdict, consequently resulting in reversible error.See footnote 3

33, 36 (Ind. Ct. App. 1992).
    Here, Carson testified that he stabbed Ransom, who was unarmed, in the back. Record at 436, 780, 781, 1038. Further, evidence is conflicting as to whether Carson was hit or threatened by Ransom. Also, there is no evidence that Carson ever tried to contact the police before taking matters into his own hands. A jury could have reasonably found that Carson was not justified in using deadly force. Accordingly, we conclude there is sufficient evidence of probative value to support the conviction. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995).
    The judgment of the trial court is reversed and remanded for further proceedings consistent with this opinion.
SULLIVAN, J., concurs.
FRIEDLANDER, J., dissents with separate opinion.

ALONZO CARSON,    )
            )
    Appellant-Defendant,    )
            )
        vs.    )    No. 49A02-9512-CR-716
            )
STATE OF INDIANA,    )
            )
    Appellee-Plaintiff.    )

FRIEDLANDER, Judge, dissenting

    I agree with the majority that the instruction in question was defective because it did not include the statutory language, "or the commission of a forcible felony", when setting out the justifications for the use of deadly force. However, I respectfully dissent from the conclusion that Carson's conviction must be reversed because of the defective instruction.
    Citing Williford, 571 N.E.2d 759, the majority correctly notes an erroneous jury instruction does not result in a per se mandate of reversal. Rather, reversal is warranted only if the defendant establishes that he was prejudiced by the error. Lockhart v. State, 609 N.E.2d 1093 (Ind. 1993). In assessing prejudice resulting from an erroneous instruction, we look to the entire charge of which the instruction is a part to determine whether the jury was misled as to the law of the case. Hill v. State, 615 N.E.2d 97 (Ind. 1993). After reviewing the record, I am satisfied that the erroneous instruction did not result in prejudice to Carson.

    In addition to Instruction No. 15g, two other instructions read to the jury addressed the subject of legal justification for using force while acting in self-defense. Those instructions stated:

        A person may use reasonable force to defend himself against another's imminent use of illegal force. He must reasonably and honestly believe that force is necessary to resist attack. He cannot use excessive force or a disproportionate amount of force under the circumstances.

        The question of the existence of an apparent danger and the amount of force necessary to resist force, can only be determined from the standpoint of the defendant, at the time and under the existing circumstances. The defendant may use such force as may reasonably be necessary to resist such attack or apparent attack. He will not be accountable for an error in judgment as to the amount of force necessary, provided he acted reasonabl[y] and honestly. One who was in no apparent danger and had no reasonable ground for apprehension of danger cannot raise this defense.

Record at 79.

        Reasonable belief means such belief as an ordinary reasonable person would possess under all the existing circumstances and as viewed from the perspective of such person within the total set of circumstances existing in the particular case. Reasonable belief does not require that the danger perceived have actually existed, but only that it was reasonably perceived as existing under all the circumstances, including any particular knowledge possessed by the defendant. However, the reasonableness of the belief must be tested from the standpoint of a person of reasonable sensibilities, or being unreasonably excitable, or unreasonably lacking in perceptive abilities.

Record at 81.

    Carson's defense consisted of the claim that he was justified in stabbing Cary Ransom because he was defending Tracy. I believe that, taken together, Instructions 15g, 15h, and

15f adequately informed the jury that it could acquit Carson if it found that he employed reasonable force in stabbing Ransom, based upon his reasonable belief that such was necessary to defend Tracy from an attack.
    I perceive no prejudice and therefore would affirm the conviction.

    THE COURT: Well, we're coming to-- something about a felony coming up. All right. I'm going to let that in if it's a pattern instruction. That would be 15-G."
        
Record at 1185-92.

Indiana Pattern Jury Instructions, Criminal No. 10.03(a) (2d ed. 1991) (emphasis added).

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