FOR PUBLICATION




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

DERICK W. STEELE                             GREGORY F. ZOELLER
Kokomo, Indiana                              Attorney General of Indiana

                                             MONICA PREKOPA TALBOT
                                             Deputy Attorney General
                                             Indianapolis, Indiana

                                                                           FILED
                            IN THE                                    Sep 05 2012, 9:42 am

                  COURT OF APPEALS OF INDIANA                                 CLERK
                                                                            of the supreme court,
                                                                            court of appeals and
                                                                                   tax court




NAPOLEON GRACIA, SR.,                        )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )       No. 34A04-1112-CR-667
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                  APPEAL FROM THE HOWARD SUPERIOR COURT
                     The Honorable William C. Menges, Jr., Judge
                          Cause No. 34D01-1011-FC-01026


                                 September 5, 2012

                            OPINION - FOR PUBLICATION

VAIDIK, Judge
                                          Case Summary

       Napoleon Gracia, Sr.1 was convicted of one felony and two misdemeanor counts

stemming from a physical altercation with police officers. On appeal, Gracia contends

that the State engaged in impermissible forum shopping when it filed charges against him

in Howard Superior Court I. Gracia also argues that the trial court erred in refusing to

give a jury instruction on excessive use of force by police and that his sentence is

inappropriate. We conclude that while the filing of charges in Howard Superior Court I

was error, Gracia did not object to the filing and must therefore show fundamental error.

We find that he has failed to do so. We also conclude that Gracia was not entitled to the

jury instruction at issue and that Gracia’s sentence is not inappropriate. We affirm.

                                 Facts and Procedural History

       In November 2010, Kokomo Police Officers Adam Martin and Chad VanCamp

were investigating a report of possible drug activity at 927 South Lewis Street in Howard

County, the home of the Gracia family. When the two officers arrived at the Lewis Street

address, Officer Martin approached the rear of the house. Officer Martin noticed the odor

of burnt marijuana emanating from an open window, which became stronger as he neared

the back of the house. Officer VanCamp confirmed the odor of burnt marijuana and left

the property to apply for a search warrant.

       While Officer VanCamp sought a search warrant, neighbors provided Officer

Martin with a telephone number for Mrs. Gracia. When Officer Martin reached Mrs.

       1
          There is some confusion regarding whether the defendant is Napoleon Gracia, Jr., or Napoleon
Gracia, Sr. While the defendant’s appellate materials and some trial exhibits list his name as Napoleon
Gracia, Jr., the remaining appellate materials refer to him as Napoleon Gracia, Sr. In addition, a
Department of Correction inmate search shows that the defendant is listed as Napoleon Gracia, Sr. We
therefore use the senior designation.
                                                  2
Gracia by phone, she told him that she would send her husband and son home to meet

with the officers. At approximately 4:00 p.m., Gracia and his son arrived at the house.

Sergeant Tonda Cockrell, Corporal Stacey Wines, Corporal Keith Meyers, and Officer

Brian Hunt also arrived at the scene, and Officer VanCamp returned with a search

warrant. Gracia and his son waited in his garage with Corporal Meyers and Officer

VanCamp while the other officers executed the search warrant. During the search, the

officers discovered a leafy plant substance and items associated with the smoking and

sale of marijuana.

      Officer VanCamp informed Gracia that he was under arrest because the officers

found marijuana in the house. He asked Gracia to place his hands behind his back.

Gracia refused repeated requests to do so. Officer Hunt then approached Gracia and

grabbed his left wrist. Gracia pulled his hand away. Corporal Meyers warned Gracia

that he would be tased if he did not place his hands behind his back. Gracia refused to

comply, and Corporal Meyers deployed his taser, striking Gracia in the abdomen. Gracia

pulled the taser wires from his skin and charged at Officers Meyers and Hunt. At that

point, Officer Hunt sprayed Gracia in the face with mace. Gracia then punched Officer

Hunt. A fistfight ensued, during which Gracia struck Officer VanCamp in the chest.

Gracia also attempted to remove Officer Hunt’s gun from its holster. The officers

ultimately brought Gracia to the ground and handcuffed him.

      The State charged Gracia with the following counts: (I) Class C felony disarming

of a law enforcement officer; (II) Class D felony dealing in marijuana; (III) Class D

felony possession of marijuana; (IV) Class D felony battery resulting in bodily injury;


                                          3
(V) Class A misdemeanor battery; and (VI) Class A misdemeanor resisting law

enforcement.

       Gracia’s three-day jury trial ended in June 2011. At the close of evidence, Gracia

tendered the following jury instruction:

       The law does not allow a peace officer to use more force than necessary to
       effect an arrest, and if he does use such unnecessary force, he thereby
       becomes a trespasser, and an arrestee therefore may resist the arrester’s use
       of excessive force by the use of reasonable force to protect himself against
       great bodily harm or death. If you find that Officer VanCamp, Officer
       Hunt, Corporal Myers, Deputy Wines, Officer Martin[,] or Sergeant
       Cockrell used more force than necessary to effectuate the arrest, then the
       accused was permitted to resist the arrest to such an extent as necessary to
       protect himself from great bodily harm or death, and you must find him not
       guilty of resisting law enforcement. Authority: Wilson v. State, 842 N.E.2d
       443, 446 (Ind. Ct. App. 2006)[, trans. denied].

Appellant’s App. p. 153. The trial court refused the instruction, stating that it was no

longer good law under our Supreme Court’s decision in Barnes v. State, 946 N.E.2d 572

(Ind. 2011), clarified on reh’g, 953 N.E.2d 473 (Ind. 2011). The jury found Gracia guilty

of Counts I, V, and VI.

       At the sentencing hearing, the trial court discussed aggravating factors, including

Gracia’s criminal history, which included convictions for dealing in marijuana, resisting

law enforcement, and just a few months earlier, battery with bodily injury. The trial court

explained that Gracia’s criminal history indicated a pattern of violent behavior. Tr. p.

437. The trial court also expressed concern about the facts of the current case:

       [Gracia] admitted that he, quote, may have grabbed Officer Hunt’s gun belt
       and service weapon, end quote, but if he did it wasn’t intentional. That is
       all well and good except for Officer Hunt’s testimony wherein he testified
       that [Gracia] grabbed the gun and pulled on it hard enough to actually lift
       Officer Hunt up off his feet. He felt that that was a deliberate, intentional
       attempt to gain possession of his service weapon. The jury agreed and I

                                             4
       think that is absolutely what happened. The fact that nobody was hurt is
       simply because of the nature of the design of the officer’s holster. Because
       of that design[,] the gun did not come out and so nobody was involved in
       gun play.

Id. at 438.

       The trial court sentenced Gracia to eight years in the Department of Correction on

Count I, one year on Count V, and one year on Count VI. The trial court suspended the

sentences on Counts V and VI to supervised probation and ordered Gracia to serve that

probationary period consecutive to the sentence on Count I.

       Gracia now appeals.

                                Discussion and Decision

       On appeal, Gracia argues that: (1) the State engaged in impermissible forum

shopping when it filed charges in Howard Superior Court I; (2) the trial court erred in

refusing to give Gracia’s jury instruction on excessive use of force by police; and (3) his

sentence is inappropriate.

                         I. Howard County Local Court Rules

        Gracia contends that the State engaged in impermissible forum shopping when it

filed charges against him in Howard Superior Court I. Gracia’s argument involves the

Howard County local court rules governing the assignment of cases, which our Supreme

Court recently discussed in Harris v. State:

       [T]he Howard Circuit and Superior Courts adopted a rule providing for a
       weekly rotation among the Circuit Court, Superior Court II, and Superior
       Court IV. Howard LR34-CR2.2 Rule 29(A). In general, a Howard County
       prosecutor must file a felony criminal charge in the court designated by the
       weekly rotation, on the basis of the date the offense occurred, subject to
       several exceptions. Local Rule 29(B).


                                               5
963 N.E.2d 505, 506 (Ind. 2012). Howard Superior Court I is not included in this

rotating system. According to the local rules, the State may file charges in Howard

Superior Court I if the charges are drawn under Indiana Code Title 35, Article 48.

Howard LR34-CR2.2 Rule 29(B)(3). When there are multiple charges, as here, filing is

based upon the highest charged class of felony.2 The highest class of felony charged here

was Class C felony disarming of a law enforcement officer. As the State acknowledges,

this charge does not fall under Title 35, Article 48, and for this reason, Howard Superior

Court I was not the proper forum for Gracia’s case.3

        The State contends, however, that because Gracia did not object to the filing of

charges in Howard Superior Court I, he may only prevail if the improper filing amounts

to fundamental error. Notably, in Harris, the Court held that a defendant is not required

to show prejudice to prevail on a claim that the State engaged in forum shopping. 963

N.E.2d at 507. In that case, however, the defendant objected to the filing of charges in

Howard Superior Court I and filed a pre-trial motion to transfer the case pursuant to the

local rules. Here, Gracia did not object to the case being filed in Howard Superior Court

I; therefore, he did not give the trial court the opportunity to correct the filing error. For

        2
          There is an exception for cases with multiple counts where the highest-charged felonies are of
the same class. In that instance, the case is to be filed in Superior Court I. See Howard LR34-CR2.2 Rule
29(B)(3).
        3
           We note, however, that Gracia was charged with battery with bodily injury as a misdemeanor in
February 2010 in another case. This charge was filed in Howard Superior Court I, and after Gracia pled
guilty in June 2010, he was placed on unsupervised probation for one year. Gracia was still on
unsupervised probation when the charges were filed in this case. As in Harris, this may have led to some
confusion regarding where the underlying charges were to be filed. 963 N.E.2d at 507. In Harris, the
Court noted that the filing rules had “shades of grey” and urged the Howard County judiciary to amend
them. Id. The judiciary has done so, and these amendments will take effect in January 2013. See
http://co.howard.in.us/clerk1/docs/2012_08_07_14_29_48.pdf (last visited Aug. 20, 2012). However,
because the State admits that the charges in this case were improperly filed in Howard Superior Court I,
we proceed in our analysis accordingly.
                                                   6
this reason, we conclude that Gracia must show prejudice; that is, he must show that

fundamental error occurred.

       “The fundamental error doctrine is an exception to the general rule that the failure

to object at trial constitutes a procedural default precluding consideration of an issue on

appeal.” Jewell v. State, 887 N.E.2d 939, 940 n.1 (Ind. 2008). The fundamental error

exception is extremely narrow. McQueen v. State, 862 N.E.2d 1237, 1241 (Ind. Ct. App.

2007). To qualify as fundamental error, the error must be “so prejudicial to the rights of

the defendant as to make a fair trial impossible.” Carden v. State, 873 N.E.2d 160, 164

(Ind. Ct. App. 2007). The fundamental error exception “applies only when the error

constitutes a blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denies the defendant fundamental due process.”

McQueen, 862 N.E.2d at 1241.

       Gracia does not argue that the trial court was biased or that he was otherwise

denied a fair trial, see Appellant’s Br. p. 14-16, and his argument that the prosecutor

disregarded local rules is no substitute for this showing. Gracia has failed to establish

fundamental error.

                                   II. Jury Instruction

       Gracia also contends that the trial court erred in refusing his jury instruction on

excessive use of force by police. In reviewing a trial court’s decision to give or refuse

tendered jury instructions, we consider: (1) whether the instruction correctly states the

law; (2) whether there is evidence in the record to support the giving of the instruction;

and (3) whether the substance of the tendered instruction is covered by other instructions


                                            7
that are given. Chambers v. State, 734 N.E.2d 578, 580 (Ind. 2000), reh’g denied. A

defendant is only entitled to reversal if he affirmatively demonstrates that the

instructional error prejudiced his substantial rights. Hero v. State, 765 N.E.2d 599, 602

(Ind. Ct. App. 2002), trans. denied.

        Gracia tendered a jury instruction on the use of excessive force by police. The

trial court refused Gracia’s tendered instruction, stating that it did not believe the

instruction was a “good statement of the law” in light of the Supreme Court’s decision in

Barnes v. State. We agree.

        In Barnes, the Court held “there is no right to reasonably resist unlawful entry by

police officers.” 946 N.E.2d at 574. The instruction tendered by Gracia provided a

defense to the charges against him by converting the police officers to trespassers or

unlawful enterers in his home by arguing that they used unnecessary force.                            See

Appellant’s App. p. 153 (“[I]f [a police officer] does use such unnecessary force, he

thereby becomes a trespasser, and an arrestee therefore may resist the arrester’s use of

excessive force by the use of reasonable force . . . .”) (emphasis added). In this way,

Gracia argued that he was permitted to use reasonable force against the police officers in

his garage. This was not permitted at the time under Barnes.4 We conclude that the trial

court did not abuse its discretion in refusing this instruction.

                                    III. Inappropriate Sentence




        4
          We note that the legislature amended Indiana Code section 35-41-3-2, effective March 20, 2012,
to restore a citizen’s right to use reasonable force to protect themselves against unlawful entry by police
officers. Ind. Code § 35-41-3-2(i)(2).
                                                    8
       Finally, Gracia contends that his eight-year sentence for Class C felony disarming

of a law enforcement officer is inappropriate in light of the nature of the offense and his

character.

       Although a trial court may have acted within its lawful discretion in imposing a

sentence, Article 7, Sections 4 and 6 of the Indiana Constitution authorize independent

appellate review and revision of sentences through Indiana Appellate Rule 7(B), which

provides that a court “may revise a sentence authorized by statute if, after due

consideration of the trial court’s decision, the Court finds that the sentence is

inappropriate in light of the nature of the offense and the character of the offender.” Reid

v. State, 876 N.E.2d 1114, 1116 (Ind. 2007) (citing Anglemyer v. State, 868 N.E.2d 482,

491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). The defendant has the

burden of persuading us that his sentence is inappropriate. Id. (citing Childress v. State,

848 N.E.2d 1073, 1080 (Ind. 2006)).

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). We “should focus on the forest—

the aggregate sentence—rather than the trees—consecutive or concurrent, number of

counts, or length of the sentence on any individual count.” Id. Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and a myriad of other factors that come to light in a

given case. Id. at 1224.


                                             9
       The sentencing range for a Class C felony is two to eight years, with four years

being the advisory term. Ind. Code § 35-50-2-6. Here, the trial court sentenced Gracia to

eight years, the maximum sentence for this offense.

       Regarding the nature of the offense, there is nothing in the record that indicates

that this sentence is inappropriate. Gracia refused to allow law enforcement officers to

handcuff him and initiated a physical altercation with the officers in his garage. During

that altercation, Gracia charged at the officers, punching and kicking them. Despite the

use of a taser and mace, Gracia continued to physically threaten the officers. Most

importantly, as the altercation escalated, Gracia attempted to remove a handgun from one

of the officers’ belts.     The trial court noted that the only thing that had prevented

“gunplay” during the altercation was the design of the officer’s holster. The nature of

this offense was serious.

       Regarding his character, Gracia has a criminal history that includes violence

directed at law enforcement. In 2002, Gracia was convicted of dealing in marijuana and

resisting law enforcement. In February 2010, Gracia was convicted of battery with

bodily injury. When sentencing Gracia in this case, the trial court noted, as we do on

appeal, Gracia’s pattern of violent behavior toward others, including law enforcement.

Gracia has failed to persuade us that his sentence is inappropriate in light of the nature of

the offense and his character.

       Affirmed.

MATHIAS, J., and BARNES, J., concur.




                                             10
