      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),                               FILED
      this Memorandum Decision shall not be                           Aug 25 2016, 8:17 am

      regarded as precedent or cited before any                            CLERK
      court except for the purpose of establishing                     Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Michael J. Kyle                                          Gregory F. Zoeller
      Franklin, Indiana                                        Attorney General of Indiana

                                                               Jesse R. Drum
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      David Bryan Cunningham,                                  August 25, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               41A01-1602-CR-237
              v.                                               Appeal from the Johnson Superior
                                                               Court
      State of Indiana,                                        The Honorable Cynthia S. Emkes,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               41D02-1401-FD-47



      Altice, Judge.


[1]   Following a jury trial, David Cunningham was convicted of class D felony

      battery and class A misdemeanor resisting law enforcement. On appeal,



      Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016    Page 1 of 7
      Cunningham argues that the trial court abused its discretion by refusing to

      instruct the jury on self-defense.


[2]   We affirm.


                                       Facts & Procedural History


[3]   On the afternoon of January 9, 2014, Officer Jacob York of the Greenwood

      Police Department, Sergeant Steven Fitzpatrick of the Indianapolis

      Metropolitan Police Department, Indiana State Trooper Brian Harshman, and

      a number of other law enforcement officers were executing arrest warrants as

      part of their work with an inter-agency task force dedicated to apprehending

      violent fugitives. The officers went to a residence in Nineveh in an attempt to

      locate Cunningham’s son, Christopher, who was wanted on a probation

      violation warrant. When Officer York knocked on the front door, Cunningham

      answered and told Officer York that he was not in need of assistance and the

      officers could leave. Officer York explained that the officers were looking for

      Christopher, and Cunningham responded that Christopher did not live there.

      Officer York told Cunningham that the officers had a warrant for that address

      and that if Cunningham did not open the door, they would force entry.

      Cunningham then told Officer York to go to the back door.


[4]   Officer York and Sergeant Fitzpatrick went to the back door, and when

      Cunningham appeared, Officer York again explained that he had a warrant and

      needed to go inside. Cunningham asked to see the warrant, and as Officer

      York began removing the warrant from its folder, Cunningham said he needed

      Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016   Page 2 of 7
      his glasses and went back inside, closing the door behind him. Several minutes

      later, Cunningham came back outside with a jacket and glasses. Officer York

      showed him the warrant, and Cunningham reached into his pocket and pulled

      out a cell phone. Cunningham told Officer York that he was going to call the

      judge to find out what was going on. At that point, Officer York told

      Cunningham “that’s enough” and grabbed Cunningham’s left wrist and placed

      his hand on his lower back in an attempt to escort him away from the house.

      Transcript at 44. Cunningham then threw a punch at Officer York, but missed.

      Sergeant Fitzpatrick and Trooper Harshman both intervened, and Cunningham

      fought with all three officers. During the altercation, Cunningham punched

      Sergeant Fitzpatrick in the back of the head and Trooper Harshman sustained a

      badly skinned thumb. Once the officers subdued him, Cunningham started

      yelling for Christopher. Christopher was subsequently located inside the house

      and taken into custody.


[5]   As a result of these events, the State charged Cunningham with two counts of

      class D felony battery—one count with Sergeant Fitzpatrick as the victim and

      the other with Trooper Harshman as the victim—and class A misdemeanor

      resisting law enforcement. A jury trial was conducted on August 25, 2015, and

      Cunningham was found guilty of battery on Sergeant Fitzpatrick and resisting

      law enforcement, but acquitted of battery on Trooper Harshman. Cunningham

      now appeals. Additional facts will be provided as necessary.


                                          Discussion & Decision



      Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016   Page 3 of 7
[6]   Cunningham argues that the trial court abused its discretion by refusing to

      instruct the jury on self-defense. As this court has explained,


               [t]he purpose of jury instructions 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. In reviewing a trial court’s decision to give a
               tendered jury instruction, we consider (1) whether the instruction
               correctly states the law, (2) is supported by the evidence in the
               record, and (3) is not covered in substance by other instructions.
               The trial court has discretion in instructing the jury, and we will
               reverse only when the instructions amount to an abuse of
               discretion. To constitute an abuse of discretion, the instructions
               given must be erroneous, and the instructions taken as a whole
               must misstate the law or otherwise mislead the jury. We will
               consider jury instructions as a whole and in reference to each
               other, not in isolation.


      Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010) (quoting Murray v.

      State, 798 N.E.2d 895, 899-900 (Ind. Ct. App. 2003)).


[7]   In this case, Cunningham tendered a self-defense instruction based on Criminal

      Instruction 10.0700 of the Indiana Pattern Jury Instructions. The State

      concedes that the instruction correctly stated the law and was not covered in

      substance by other instructions. Thus, the only issue we must consider is

      whether the instruction was supported by the evidence in the record.1 A




      1
        Cunningham also argues that the trial court denied his proposed self-defense instruction based on its
      erroneous finding that the request was untimely pursuant to Ind. Code § 35-41-3-11, also known as the
      “effects of battery statute.” See Marley v. State, 747 N.E.2d 1123, 1126 (Ind. 2001). Cunningham argues that
      I.C. § 35-41-3-11 is inapplicable to the facts of this case, a point the State concedes. We note, however, that
      the trial court’s decision appears to have been premised on both the lack of notice and a finding that the

      Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016                Page 4 of 7
      defendant is entitled to a jury instruction on any theory of defense which has

      some foundation in the evidence. Hernandez v. State, 45 N.E.3d 373, 376 (Ind.

      2015). “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. (quoting Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct. App. 2001)).


[8]   I.C. § 35-41-3-2(i) provides in relevant part that a person is justified in using

      reasonable force against a public servant if the person reasonably believes the

      force is necessary to protect himself from the imminent use of unlawful force.

      A defendant claiming self-defense must show that he: (1) was in a place where

      he had a right to be; (2) acted without fault; and (3) was in reasonable fear or

      apprehension of bodily harm. Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003).

      If Cunningham presented some evidence that could support finding each of

      these factors, he was entitled to a self-defense instruction. See Hernandez, 45

      N.E.3d at 377.


[9]   Cunningham argues that testimony establishing that Officer York initiated

      physical contact with him by grabbing his wrist provided some support for the

      proposition that he was in reasonable fear of the imminent use of unlawful

      force. Even if we assume that Cunningham was subjectively in fear, he has not




      instruction was not supported by the evidence in the record. Transcript at 137 (“I did take some time during
      the break to look at this issue. Not only the timeliness of it but you know, when it’s raised and whether or
      not there’s support in the evidence for it. So I am going to deny defendant’s proposed . . instruction.”). In
      any event, this court “will sustain the trial court if it can be done on any legal ground apparent in the record.”
      Ratliff v. State, 770 N.E.2d 807, 809 (Ind. 2002). Because we find it dispositive, we will focus our attention on
      the question of whether the proposed self-defense instruction was supported by the evidence in the record.

      Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016                 Page 5 of 7
       directed our attention to any evidence suggesting that such fear was objectively

       reasonable. See Russell v. State, 997 N.E.2d 351, 353 (Ind. 2013) (explaining that

       “a claim of self-defense must be evaluated . . . by considering the objective

       reasonableness of the defendant’s belief that he was in imminent harm”). The

       officers were wearing clothing clearly identifying them as law enforcement

       officers, and Officer York explained to Cunningham that they were there to

       execute a warrant for Christopher’s arrest. Officer York informed Cunningham

       that the officers had the right to enter the home by force if necessary, but

       instead of doing so, the officers complied with Cunningham’s request to go to

       the back door. When Cunningham abruptly went back inside the house to

       retrieve his glasses, the officers waited several minutes for him to come back

       outside. When Cunningham asked to see the warrant, Officer York provided it

       to him. It was not until Cunningham pulled out a cell phone and stated that he

       was going to call the judge that Officer York grabbed Cunningham’s wrist and

       placed his hand on his back in an attempt to escort him away from the house.

       There is no evidence that Officer York did so aggressively or caused

       Cunningham any pain or injury. Nevertheless, Cunningham started throwing

       punches, necessitating the intervention of two other officers to subdue him. We

       cannot conclude that this evidence could support a finding that Cunningham

       was in reasonable fear of bodily harm, nor could it support a finding that he

       acted without fault. We therefore conclude that the trial court did not abuse its

       discretion in refusing to instruct the jury regarding self-defense.


[10]   Judgment affirmed.


       Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016   Page 6 of 7
Bradford, J. and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016   Page 7 of 7
