MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                      FILED
court except for the purpose of establishing
                                                                        May 16 2019, 6:47 am
the defense of res judicata, collateral
estoppel, or the law of the case.                                              CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Thomas C. Allen                                         Curtis T. Hill, Jr.
Fort Wayne, Indiana                                     Attorney General of Indiana

                                                        Matthew Koressel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tracy A. Thomas,                                        May 16, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-2234
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Frances C. Gull,
Appellee-Plaintiff.                                     Judge

                                                        Trial Court Cause No.
                                                        02D05-1704-F5-96



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2234 | May 16, 2019                     Page 1 of 7
                                          Case Summary
[1]   On the evening of April 7, 2017, Fort Wayne Police Detectives (collectively,

      “the Detectives”) were conducting surveillance on Tracy Thomas as part of an

      investigation into a reported domestic disturbance involving a firearm. During

      the course of their surveillance, the Detectives observed Thomas committing

      numerous traffic infractions and initiated a traffic stop. Thomas did not stop

      his vehicle immediately and when he did stop, he failed to follow the

      Detectives’ directions and engaged in a physical struggle with the Detectives.

      During this struggle, Thomas bit one of the Detectives, causing her to suffer

      injury and pain. Thomas was convicted of Level 5 felony battery on a public

      safety official following a jury trial. He contends on appeal that the evidence is

      insufficient to sustain his conviction. We affirm.



                            Facts and Procedural History
[2]   On the evening of April 7, 2017, Fort Wayne Police Detective Sergeant Gary

      Hensler was conducting surveillance on Thomas as part of an investigation into

      a domestic incident that involved the use of a firearm. In light of information

      learned during the ongoing investigation, Detective Sergeant Hensler and

      Detectives Matthew Foote and Shannon Hughes initiated a traffic stop after

      observing Thomas commit numerous traffic infractions. Given the nature of

      the ongoing investigation, the Detectives decided to conduct “a modified felony

      stop,” which included the Detectives taking additional safety precautions. Tr.

      Vol. II p. 85.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2234 | May 16, 2019   Page 2 of 7
[3]   Thomas failed to immediately yield to the Detectives’ flashing emergency lights

      and sirens. Once he stopped and exited his vehicle, Thomas “refused to turn

      away from [the Detectives] and he refused to walk backwards to the sound of

      [their] voice[s] which were the commands.” Tr. Vol. II p. 134. He also

      disobeyed the Detectives’ orders to take his hands out of his pockets. Thomas’s

      actions caused the Detectives to be concerned about whether he was reaching

      for a weapon hidden on his person. Thomas, who was only a few feet away

      from his vehicle, also kept looking back toward his vehicle. He displayed

      “indecisiveness like he was trying to decide whether to get back in the car, not

      to listen[.]” Tr. Vol. II p. 89. Because the Detectives were “unsure what his

      intentions were at that point[,]” tr. vol. II p. 89, they decided to treat the stop as

      a “high risk traffic stop.” Tr. Vol. II p. 133.


[4]   As they approached Thomas, Detective Sergeant Hensler and Detective Hughes

      drew their weapons, pointing them towards the ground and away from

      Thomas. Detective Foote, armed with a “less than lethal taser,” followed close

      behind. Tr. Vol. II p. 135. Thomas initially ignored the Detectives’ orders to

      get down on the ground but eventually partially complied. He then began

      struggling with the Detectives, flailing his arms and attempting to get up off the

      ground. Detective Foote slapped Thomas with the back of his hand in an

      attempt to get him to comply with the Detective’s orders to stop resisting.

      Thomas continued to struggle with Detective Foote, who delivered a “knee

      strike” to Thomas’s body in another unsuccessful attempt to gain Thomas’s

      compliance. Tr. Vol. II pp. 136 – 37. Thomas continued to resist and ignored


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2234 | May 16, 2019   Page 3 of 7
      numerous orders to put his hands behind his back. Detective Sergeant Hensler

      “tased [Thomas], that was ineffective.” Tr. Vol. II p. 137.


[5]   Detective Hughes eventually managed to straddle Thomas and gain control of

      one of his arms. As she attempted to place Thomas in handcuffs, Thomas

      threw her “off of his back” and “savagely” bit her arm. Tr. Vol. II pp. 119, 137.

      Detective Foote placed his arm against the right side of Thomas’s neck in an

      effort to incapacitate him. Detective Foote released the pressure after pulling

      Thomas’s mouth away from Detective Hughes.


[6]   Thomas then attempted to strike Detective Foote with a closed fist. Detective

      Foote responded by “delivering several closed hand strikes to [Thomas’s] face

      and head area.” Tr. Vol. II p. 137. Thomas continued to struggle. Eventually,

      Detective Foote managed to pin Thomas under his knee and to incapacitate

      Thomas by delivering “a one to two (2) second burst” of chemical spray in

      Thomas’s eyes. Tr. Vol. II p. 138. Thomas finally stopped resisting and the

      Detectives were able to place him in restraints. Thomas’s bite on Detective

      Hughes’s arm, which was described by Detective Hughes as “[v]ery painful,”

      resulted in immediate bruising and permanent scarring. Tr. Vol. II p. 119. A

      handgun was subsequently recovered from underneath the driver’s seat of

      Thomas’s vehicle.


[7]   On April 13, 2017, the State charged Thomas with Level 5 felony battery on a

      public service official, Level 5 felony carrying a handgun without a license, two

      counts of Level 6 felony resisting law enforcement, and Class A misdemeanor


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2234 | May 16, 2019   Page 4 of 7
      possession of a firearm by a domestic batterer. Following a two-day trial, the

      jury returned a guilty verdict on the battery charge but “hung” on the remaining

      counts. Appellant’s App. Vol. II p. 186. The remaining counts were

      subsequently dismissed pursuant to a plea agreement entered into by the parties.

      As for the Level 5 battery conviction, the trial court sentenced Thomas to a five-

      year term of imprisonment.



                                Discussion and Decision
[8]   Thomas contends that the evidence is insufficient to sustain his conviction for

      Level 5 felony battery on a public safety official.


              We do not reweigh evidence or reassess the credibility of
              witnesses when reviewing a conviction for the sufficiency of the
              evidence. We view all evidence and reasonable inferences drawn
              therefrom in a light most favorable to the conviction, and will
              affirm if there is substantial evidence of probative value
              supporting each element of the crime from which a reasonable
              trier of fact could have found the defendant guilty beyond a
              reasonable doubt.


      Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013) (internal citation and quotation

      omitted). A person commits Level 5 felony battery on a public safety official

      when he knowingly or intentionally “touches another person in a rude,

      insolent, or angry manner” and the touching “results in bodily injury to … a

      public safety official while the official is engaged in the official’s official duties.”

      Ind. Code § 35-42-2-1(c), (g). A “public safety official” includes “a law

      enforcement officer.” Ind. Code § 35-42-2-1(a)(1).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2234 | May 16, 2019   Page 5 of 7
[9]    In challenging his conviction, Thomas argues that the State failed to rebut his

       self-defense claim.


               A valid claim of defense of oneself or another person is legal
               justification for an otherwise criminal act. In order to prevail on
               such a claim, the defendant must show that he: (1) was in a place
               where he had a right to be; (2) did not provoke, instigate, or
               participate willingly in the violence; and (3) had a reasonable fear
               of death or great bodily harm.


       Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002) (internal citations omitted). A

       person, however, is not justified in using force against a public servant if “the

       person reasonably believes the public servant is: (A) acting lawfully; or (B)

       engaged in the lawful execution of the public servant’s official duties.” Ind.

       Code § 35-41-3-2(j)(4).


               When a claim of self-defense is raised and finds support in the
               evidence, the State has the burden of negating at least one of the
               necessary elements. If a defendant is convicted despite his claim
               of self-defense, this Court will reverse only if no reasonable
               person could say that self-defense was negated by the State
               beyond a reasonable doubt.


       Wilson, 770 N.E.2d at 800–01 (internal citations omitted). “The standard of

       review for a challenge to the sufficiency of the evidence to rebut a claim of self-

       defense is the same standard for any sufficiency of the evidence claim.” Id. at

       801.


[10]   In arguing that the State failed to rebut his self-defense claim, Thomas asserts

       that he was justified in defending himself because the Detectives cannot be said

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2234 | May 16, 2019   Page 6 of 7
       to have been engaged in the lawful execution of their duties given that they used

       unreasonable force in their attempts to detain him. We disagree. Testimony

       from each of the Detectives indicates that Thomas was repeatedly non-

       compliant with their orders. While the Detectives admittedly used force in their

       attempts to restrain Thomas, one could reasonably infer from the record that

       the amount of force used by the Detectives directly correlated to the nature of

       Thomas’s resistance, i.e., that the nature of the force used by the Detectives

       escalated in proportion to the length and nature of Thomas’s resistance. Once

       Thomas stopped resisting, the Detectives refrained from using any additional

       force.


[11]   The record supports the jury’s conclusions that the Detectives’ use of force was

       reasonable, the Detectives were acting in the lawful execution of their duties

       when Thomas bit Detective Hughes, and Thomas knew the Detectives were

       acting lawfully in executing their duties. It therefore supports the jury’s

       determination that the State rebutted Thomas’s self-defense claim. Thomas’s

       argument to the contrary amounts to nothing more than an invitation for this

       court to reweigh the evidence, which we will not do. See Walker, 998 N.E.2d at

       726.


[12]   The judgment of the trial court is affirmed.


       Crone, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2234 | May 16, 2019   Page 7 of 7
