MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be                                        Jun 13 2018, 9:13 am
regarded as precedent or cited before any
                                                                                 CLERK
court except for the purpose of establishing                                 Indiana Supreme Court
                                                                                Court of Appeals
the defense of res judicata, collateral                                           and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jennifer L. Koethe                                       Curtis T. Hill, Jr.
LaPorte, Indiana                                         Attorney General of Indiana

                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Thomas Tracy,                                            June 13, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         46A03-1709-CR-2151
        v.                                               Appeal from the LaPorte Superior
                                                         Court
State of Indiana,                                        The Honorable Richard R.
Appellee-Plaintiff.                                      Stalbrink, Jr., Judge
                                                         Trial Court Cause No.
                                                         46D02-1609-F3-820



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018             Page 1 of 13
                                             Case Summary
[1]   Thomas Tracy appeals his conviction for Level 3 felony aggravated battery.

      We affirm.


                                                     Issues
[2]   Tracy raises four issues, which we restate as:


                         I.    whether the trial court properly admitted
                               Tracy’s statements to an officer;

                        II.    whether the trial court properly refused Tracy’s
                               proposed self-defense instruction;

                       III.    whether the trial court properly excluded
                               evidence of synthetic marijuana found on the
                               victim; and

                       IV.     whether the deputy prosecutor committed
                               prosecutorial misconduct.


                                                     Facts
[3]   In July 2016, Tracy and Brandon Black were inmates at the Indiana State

      Prison in Michigan City. Officer Krystal Boyer was employed by the prison

      and was working at a checkpoint. Tracy and Black, who worked as porters in

      the mental health unit, were leaving the unit to return to their own units.

      Officer Boyer let the men out of the mental health unit, locked the gate, and

      heard “scuffling.” Tr. Vol. II p. 39. She saw Tracy and Black “kind of running

      back and forth,” Black “had his hands up,” and Black was saying that “he

      wasn’t doing anything, but that he was being attacked.” Id. Tracy was being


      Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 2 of 13
      aggressive, and Black was trying to run away or back away. Officer Boyer told

      them to stop several times and grabbed her radio to tell other officers that a fight

      had started. Officer Boyer thought she saw a weapon in Tracy’s hand.


[4]   Sergeant Chris Puetzer and Officer Ryan Statham responded to Officer Boyer’s

      radio signal, and they arrived on the scene within seconds. Sergeant Puetzer

      ordered Tracy and Black to get on the ground, and Black complied. Black was

      frightened and said, “I’m not swinging back. I’m not swinging back.” Id. at 76.

      Officer Statham saw a string and a weapon fall out of Tracy’s sleeve. When

      Tracy hesitated to comply with the officer’s order, the officers sprayed him with

      pepper spray. Tracy then complied and asked “something along the lines of

      ‘did I kill him’ or ‘I hope I killed him.’” Id. at 63. After Tracy and Black were

      secured, the officers found a weapon in the grass near Tracy. The weapon was

      a sharpened piece of metal with a cloth and rubber band handle attached to a

      string. Black had puncture wounds to his left chest and left back. Tracy had no

      injuries.


[5]   The State charged Tracy with Level 1 felony attempted murder and Level 3

      felony aggravated battery. Tracy filed a motion to suppress “any and all oral

      and written communications, confessions, statements, admissions or tests,

      alleged to have been made by the Defendant prior to, at the time of, or

      subsequent to his arrest in this cause.” Appellant’s App. Vol. II p. 30. Tracy

      alleged that he had made certain “oral statements” that had to be suppressed

      because he was subject to a custodial interrogation and was not informed of his

      Miranda rights. The trial court granted Tracy’s motion. At Tracy’s jury trial,

      Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 3 of 13
      the jury found him guilty of aggravated battery and deadlocked on the

      attempted murder charge. The trial court sentenced Tracy to twelve additional

      years in the Indiana Department of Correction for the aggravated battery

      conviction. Tracy now appeals.


                                                    Analysis
                                   I. Admission of Tracy’s Statement

[6]   This argument concerns Tracy’s statement to the officers during the incident.

      After the officers secured both Tracy and Black, Tracy said “something along

      the lines of ‘did I kill him’ or ‘I hope I killed him.’” Tr. Vol. II p. 63. Tracy

      argues that the trial court’s admission of his statement violated the previously-

      granted motion to suppress and Tracy’s Fifth Amendment rights.1


[7]   This issue is more appropriately framed as whether the trial court abused its

      discretion by admitting the evidence at the trial. See Washington v. State, 784

      N.E.2d 584, 586-87 (Ind. Ct. App. 2003). The admission and exclusion of

      evidence falls within the sound discretion of the trial court, and we review the

      admission of evidence only for abuse of discretion. Wilson v. State, 765 N.E.2d

      1265, 1272 (Ind. 2002). An abuse of discretion occurs “where the decision is




      1
        The State argues that the motion to suppress concerned only Tracy’s statement to Officer Charles Whelan
      during an interview after the incident. The State concedes that Tracy’s statements to Officer Whelan were
      inadmissible.

      Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018           Page 4 of 13
      clearly against the logic and effect of the facts and circumstances.” Smith v.

      State, 754 N.E.2d 502, 504 (Ind. 2001).


[8]   The Fifth Amendment to the United States Constitution, made applicable to

      the States via the Fourteenth Amendment, provides: “No person shall . . . be

      compelled in any criminal case to be a witness against himself, nor be deprived

      of life, liberty, or property, without due process of law[.]” The United States

      Supreme Court held in Miranda v. Arizona, 384 U.S. 436, 444, 86 S. Ct. 1602,

      1612 (1966), “that a person questioned by law enforcement officers after being

      ‘taken into custody or otherwise deprived of his freedom of action in any

      significant way’ must first ‘be warned that he has a right to remain silent, that

      any statement he does make may be used as evidence against him, and that he

      has a right to the presence of an attorney, either retained or appointed.’”

      Stansbury v. California, 511 U.S. 318, 322, 114 S. Ct. 1526, 1528 (1994) (quoting

      Miranda, 384 U.S. at 444, 86 S. Ct. at 1612). The required announcement of

      Miranda rights is triggered by a custodial interrogation. State v. Brown, 70

      N.E.3d 331, 335 (Ind. 2017). “Under Miranda, ‘interrogation’ includes express

      questioning and words or actions on the part of the police that the police know

      are reasonably likely to elicit an incriminating response from the suspect.”

      White v. State, 772 N.E.2d 408, 412 (Ind. 2002) (citing Rhode Island v. Innis, 446

      U.S. 291, 301, 100 S. Ct. 1682, 1689-90 (1980); Loving v. State, 647 N.E.2d

      1123, 1126 (Ind. 1995)). Volunteered statements do not amount to

      interrogation. Id.




      Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 5 of 13
[9]    Here, during the incident, after the officers secured Tracy, he said “something

       along the lines of ‘did I kill him’ or ‘I hope I killed him.’” Tr. Vol. II p. 63.

       This statement was volunteered; it was not made in response to any

       interrogation by the officers. Consequently, the statement was not obtained as

       a result of a custodial interrogation, and the trial court did not abuse its

       discretion by admitting the officer’s testimony concerning the statement.


                                                II. Instructions

[10]   Tracy argues that the trial court abused its discretion by refusing to give his

       tendered self-defense instruction. Tracy proposed the pattern jury instruction

       regarding self-defense, which the trial court rejected because it concluded there

       was no evidence presented to support giving the instruction.


[11]   The manner of instructing a jury lies largely within the discretion of the trial

       court, and we will reverse only for an abuse of discretion. Henson v. State, 786

       N.E.2d 274, 277 (Ind. 2003). “‘In determining whether a trial court abused its

       discretion by declining to give a tendered instruction, we consider the following:

       (1) whether the tendered instruction correctly states the law; (2) whether there

       was evidence presented at trial to support giving the instruction; and (3)

       whether the substance of the instruction was covered by other instructions that

       were given.’” Id. (quoting Lampkins v. State, 778 N.E.2d 1248, 1253 (Ind.

       2002)). The issue on appeal is whether the evidence presented at trial supported

       the giving of Tracy’s proposed self-defense instruction.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 6 of 13
[12]   “A defendant in a criminal case is entitled to have the jury instructed on any

       theory of defense that has some foundation in the evidence.” Ault v. State, 950

       N.E.2d 326, 328 (Ind. Ct. App. 2011), trans. denied. We apply this rule even if

       the evidence is weak and inconsistent so long as the evidence presented at trial

       has some probative value to support it. Id. Further, we recognize it is within

       the province of the jury to determine whether the defendant’s evidence was

       believable, unbelievable, or sufficient to warrant the use of force. Id.


[13]   Indiana Code Section 35-41-3-2(c) provides:


               A person is justified in using reasonable force against any other
               person to protect the person or a third person from what the
               person reasonably believes to be the imminent use of unlawful
               force. However, a person:


               (1) is justified in using deadly force; and


               (2) does not have a duty to retreat;


               if the person reasonably believes that that force is necessary to
               prevent serious bodily injury to the person or a third person or
               the commission of a forcible felony. No person in this state shall
               be placed in legal jeopardy of any kind whatsoever for protecting
               the person or a third person by reasonable means necessary.


[14]   Tracy argues that there was evidence to support the giving of the self-defense

       instruction because the video of the incident shows that Black “had his hand on

       his side,” there was no evidence to show that Tracy originally had the weapon

       used, and no witness testified as to how the fight started. However, the video of


       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 7 of 13
       the incident shows Tracy attacking Black, there is no evidence that Black was

       armed, and there is no evidence that Black was the aggressor here. The trial

       court properly found that the proposed self-defense instruction was not

       supported by the evidence. See, e.g., Henson, 786 N.E.2d at 279 (concluding that

       the evidence did not support the giving of a self-defense instruction).


                                   III. Evidence Regarding the Victim

[15]   Tracy argues that the trial court abused its discretion by excluding evidence that

       Black had synthetic marijuana in his possession at the time of the incident.

       Tracy argued that the evidence was relevant because “to the extent he ingested

       some of the contraband that he was carrying makes him more likely that he

       would act in a - - disorderly manner and a threatening manner, especially with

       the K2-type substance.” Tr. Vol. II p. 106. The State argued that the admission

       of the evidence would violate Indiana Evidence Rule 404(b), and the trial court

       excluded the evidence.


[16]   Our supreme court held in Garland v. State, 788 N.E.2d 425, 430 (Ind. 2003),

       that Indiana Evidence Rule 404(b) can be applied to the admissibility of

       evidence about prior bad acts by persons other than defendants. Under Indiana

       Evidence Rule 404(b), “[e]vidence of a crime, wrong, or other act is not

       admissible to prove a person’s character in order to show that on a particular

       occasion the person acted in accordance with the character.” However, such

       “evidence may be admissible for another purpose, such as proving motive,

       opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

       or lack of accident.” Evid. R. 404(b)(2). The law governing the admissibility
       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 8 of 13
       of specific acts evidence for “other purposes” requires a trial court to make three

       findings. Camm v. State, 908 N.E.2d 215, 223 (Ind. 2009). First, the court must

       determine that the evidence of other crimes, wrongs, or acts is relevant to a

       matter at issue other than the defendant’s propensity to commit the charged act.

       Id. Second, the court must determine that the proponent has sufficient proof

       that the person who allegedly committed the act did, in fact, commit the act.

       Id. Third, the court must balance the probative value of the evidence against its

       prejudicial effect pursuant to Rule 403. Id.


[17]   According to Tracy, the evidence of Black’s possession of synthetic marijuana

       was admissible to “show that it could have had a variety of effects on Mr.

       Black’s demeanor at the time of the altercation.” Appellant’s Br. p. 14. Tracy

       implies that, because Black had possession of synthetic marijuana, Black could

       have been acting aggressively at the time of the incident. In Tracy’s offer to

       prove, an officer testified that ingesting synthetic marijuana causes a variety of

       symptoms ranging from “feeling good” to “crazy behavior.” Tr. Vol. II p. 114.

       The fact that Black had synthetic marijuana in his possession simply is not

       relevant to show Black’s “motive, opportunity, intent, preparation, plan,

       knowledge, identity, absence of mistake, or lack of accident.” Evid. R.

       404(b)(2). There is no evidence that Black had consumed the synthetic

       marijuana and no evidence that he was acting aggressively. The evidence was

       not admissible under Indiana Evidence Rule 404(b). The trial court properly

       excluded the evidence.




       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 9 of 13
                                       IV. Prosecutorial Misconduct

[18]   Next, Tracy argues that the deputy prosecutor committed prosecutorial

       misconduct. During closing arguments, the deputy prosecutor stated:


               [Defense counsel] also wants to tell you at the hospital Brandon
               Black had opiates in his system. At the hospital, Brandon Black
               had opiates in his system. That’s certainly not pertinent in any
               realm. He went to a hospital to be treated for being stabbed. He
               received opiates at the hospital. The pertinent time frame even
               for this argument that [defense counsel] would suggest would be
               did anyone have drugs in their system at the time of the attack.
               But even then that doesn’t matter because when you read the
               elements of the crime, nowhere will you see that Brandon Black
               had to be drug free. Nowhere will you see that Brandon Black
               had to be a Boy Scout. You won’t see anything about Brandon
               Black, except you’ll see that one of the elements of the crime is
               that Thomas Tracy stabbed him. Not an element of the crime.
               Nothing else. You don’t have to consider that at all. If you do
               consider it, please realize, those hospital records are from the
               hospital where he was receiving pain medication. It doesn’t matter
               if he was high as a kite, which the defense could not prove with those
               evidentiary records.


       Tr. Vol. II pp. 147-48 (emphasis added). Tracy objected to the emphasized

       language, arguing that he was under no obligation to make any proof. The trial

       court offered to instruct the jury that Tracy did not have an obligation of proof

       before it “started instructions.” Id. at 148. After closing arguments, the trial

       court informed counsel that it would not give an additional instruction because

       one of the existing instructions covered the issue. Defense counsel then said,

       “Okay. That’s fine, Judge. Thank you.” Id. at 150. Defense counsel then said,



       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 10 of 13
       “Would you show my motion for mistrial based on the misrepresentation of the

       burden,” and the trial court denied the motion for a mistrial. Id.


[19]   “In reviewing a claim of prosecutorial misconduct properly raised in the trial

       court, we determine (1) whether misconduct occurred, and if so, (2) ‘whether

       the misconduct, under all of the circumstances, placed the defendant in a

       position of grave peril to which he or she would not have been subjected’

       otherwise.” Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014) (quoting Cooper v.

       State, 854 N.E.2d 831, 835 (Ind. 2006)). “A prosecutor has the duty to present

       a persuasive final argument and thus placing a defendant in grave peril, by

       itself, is not misconduct.” Id. “‘Whether a prosecutor’s argument constitutes

       misconduct is measured by reference to case law and the Rules of Professional

       Conduct. The gravity of peril is measured by the probable persuasive effect of

       the misconduct on the jury’s decision rather than the degree of impropriety of

       the conduct.’” Id. (quoting Cooper, 854 N.E.2d at 835). “To preserve a claim of

       prosecutorial misconduct, the defendant must—at the time the alleged

       misconduct occurs—request an admonishment to the jury, and if further relief is

       desired, move for a mistrial.” Id.


[20]   “The Fifth Amendment privilege against self-incrimination is violated ‘when a

       prosecutor makes a statement that is subject to reasonable interpretation by a

       jury as an invitation to draw an adverse inference from a defendant’s silence.’”

       Dumas v. State, 803 N.E.2d 1113, 1118 (Ind. 2004) (quoting Moore v. State, 669

       N.E.2d 733, 739 (Ind. 1996)). “However, statements by the prosecutor

       concerning the uncontradicted nature of the State’s evidence do not violate the

       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 11 of 13
       defendant’s Fifth Amendment rights.” Id. “Rather, comment on the lack of

       defense evidence is proper so long as the State focuses on the absence of any

       evidence to contradict the State’s evidence and not on the accused’s failure to

       testify.” Id.


[21]   During closing argument, defense counsel suggested that Black was intoxicated

       on opiates at the time of the offense. The deputy prosecutor pointed out during

       her closing argument that opiates were administered to Black at the hospital

       and that the medical records did not support defense counsel’s argument. We

       conclude the deputy prosecutor’s statements were “well within the permissible

       range of fair commentary on the evidence or lack thereof” and were not a

       comment on Tracy’s right not to testify. See Dumas, 803 N.E.2d at 1118

       (rejecting the defendant’s argument that the deputy prosecutor commented on

       his right not to testify). Tracy’s argument fails.


                                                 Conclusion
[22]   The trial court properly admitted Tracy’s voluntary statement; the trial court

       properly rejected Tracy’s self-defense instruction; the trial court properly

       excluded evidence that the victim had synthetic marijuana in his possession

       during the incident; and the deputy prosecutor did not commit prosecutorial

       misconduct. We affirm Tracy’s conviction for Level 3 felony aggravated

       battery.


[23]   Affirmed.



       Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 12 of 13
Vaidik, C.J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 46A03-1709-CR-2151 | June 13, 2018   Page 13 of 13
