MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                      Jul 01 2015, 9:11 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEY FOR APPELLEE
Mark Leeman                                               Gregory F. Zoeller
Cass County Public Defender                               Attorney General of Indiana
Leeman Law Offices
Logansport, Indiana                                       Chandra K. Hein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Jeffrey Billeaud, Jr.,                                   July 1, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         09A02-1409-CR-638
        v.                                               Appeal from the Cass County
                                                         Superior Court 2

State of Indiana,                                        Cause No. 09D02-1308-FC-43
Appellee-Plaintiff
                                                         The Honorable Rick Maughmer,
                                                         Judge.




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 09A02-1409-CR-638 | July 1, 2015      Page 1 of 8
[1]   Jeffrey Billeaud was convicted of Battery Resulting in Serious Bodily Injury, a class

      C felony,1 and Resisting Law enforcement, a class D felony.2 Billeaud appeals his

      convictions, presenting the following restated issues for review:

                  1. Did the trial court abuse its discretion when it refused to instruct
                     the jury on self-defense?
                  2. Did the State present sufficient evidence to sustain Billeaud’s
                     conviction for resisting law enforcement?


[2]   We affirm.

[3]   The facts favorable to the convictions follow. Pieter Vanderveen and Geneva

      Boatner are both semi-truck drivers. On August 16, 2013, they traveled together to

      pick up a load in Logansport, Indiana. Upon arrival, Boatner exited the truck to

      “ground guide” Vanderveen and help him detach the trailer into a parking space.

      Transcript at 109. A pickup truck driven by Billeaud traveled past Boatner at a high

      rate of speed. Boatner testified that she had to jump out of the way to avoid being

      hit.




         1
           The version of the governing statute i.e., Ind. Code Ann. § 35-42-2-1 (West, Westlaw 2013) in effect at the
         time this offense was committed classified it as a class A felony. This statute has since been revised and in its
         current form reclassifies this as a Level 6 felony. See I.C. § 35-42-2-1 (West, Westlaw current with all 2015
         First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new
         classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this
         offense was committed before then, it retains the former classification.
         2
           The version of the governing statute i.e., Ind. Code Ann. § 35-44.1-3-1 (West, Westlaw 2013) in effect at the
         time this offense was committed classified it as a class A felony. This statute has since been revised and in its
         current form reclassifies this as a Level 6 felony. See I.C. § 35-44.1-3-1 (West, Westlaw current with all 2015
         First Regular Session of the 119th General Assembly legislation effective through June 28, 2015). The new
         classification, however, applies only to offenses committed on or after July 1, 2014. See id. Because this
         offense was committed before then, it retains the former classification.


         Court of Appeals of Indiana | Memorandum Decision 09A02-1409-CR-638 | July 1, 2015                    Page 2 of 8
[4]   After detaching the trailer, Boatner and Vanderveen drove the semi-truck without

      its trailer to the guard shack, where they encountered Billeaud.3 Vanderveen

      leaned out his window and said to Billeaud, “Dude you need to slow your ass

      down before you kill somebody.” Id. at 111. Billeaud responded, “[O]ld man, if

      you get out of the truck I’ll beat you down.” Id.


[5]   Vanderveen then attempted to get out of his truck so he could proceed to the guard

      shack. Vanderveen placed his foot on the battery box while his hands were on the

      steering wheel but before he reached the step, Billeaud grabbed a wooden flag post

      from his own truck, and struck Vanderveen in the back of the neck. Vanderveen

      fell to the ground unconscious, and Billeaud quickly drove away.


[6]   Jerry Elder, another truck driver, witnessed Billeaud hit Vanderveen. “The driver

      was getting out of his truck, and the next thing I know a two by four was swung at

      the truck driver and [he] went down like a sack of potatoes.” Id. at 74. Cara

      Small, a security guard who saw only part of the incident, called 9-1-1. Sergeant

      Britt Edwards and Officer Kyle Perkins responded to the scene. The officers,

      through dispatch, explained the situation to other officers who began to search for

      Billeaud’s truck. Officers located Billeaud’s vehicle on First and Market Street and

      signaled Billeaud to stop by activating their sirens and overhead lights. Billeaud




         3
           Boatner testified that Vanderveen came to the guard shack and parked his semi-truck about three feet away
         from Billeaud’s truck.

         Court of Appeals of Indiana | Memorandum Decision 09A02-1409-CR-638 | July 1, 2015               Page 3 of 8
      saw the four police vehicles behind him, but continued to drive four blocks before

      pulling over at the jail parking lot.

[7]   On September 19, 2013, the State charged Billeaud with battery by means of a

      deadly weapon (Count I), battery resulting in serious bodily injury (Count II), and

      resisting law enforcement (Count III). On July 23, 2014, the jury found Billeaud

      guilty as charged. Before sentencing, the judge merged the two battery convictions

      and sentenced Billeaud to an aggregated sentence of nine years incarceration.

      Billeaud now appeals.

                                                         1.


[8]   Billeaud contends the trial court erred in refusing to give his tendered self-defense

      jury instruction. “The manner of instructing the jury lies within the discretion of

      the trial court, and we will reverse only for abuse of discretion.” Henson v. State,

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

      discretion and improperly refused a tendered instruction, we consider “whether the

      proposed instruction correctly states the law, whether the evidence in the record

      supports the instruction, and whether the substance of the tendered instruction is

      covered by other instructions.” White v. State, 726 N.E.2d 831, 833 (Ind. Ct. App.

      2000). The State concedes the proposed jury instruction in this case properly stated

      the law and was not covered by any other instructions. Accordingly, we are left to

      determine whether there was evidence to support a self-defense instruction.

[9]   “A defendant in a criminal case is entitled to have the jury instructed on any theory

      of defense which has some foundation in the evidence.” Dayhuff v. State, 545

         Court of Appeals of Indiana | Memorandum Decision 09A02-1409-CR-638 | July 1, 2015   Page 4 of 8
    N.E.2d 1100, 1102 (Ind. Ct. App.1989). Even where evidence of self-defense is

    weak, the defendant is entitled to a self-defense instruction if there is “some

    probative value to support it.” Id. A person is justified in using “reasonable force”

    against another person to protect himself from what he reasonably believes to be

    the imminent use of unlawful force. Tharpe v. State, 995 N.E.2d 836, 844 (Ind.

    2011).

[10] The   accused is required to show the following elements to obtain the self-defense

    instruction when deadly force is used: (1) The accused was in a place 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 (Ind. 2002). “A defendant’s belief that he is being threatened with impending

    danger must be reasonable and in good faith.” White v. State, 726 N.E.2d 834.


[11] Billeaud    argues he is without fault and justified in his actions because he was in

    “fear of his life”, as he believed many truck drivers carried weapons on them at all

    times. Transcript at 153. Further, he testified that Vanderveen appeared to be

    angry when he yelled out of his window. In response, Billeaud claimed he turned

    to give Vanderveen the middle finger but Vanderveen hit him in the shoulder with

    the door of the semi-truck, causing him to fall to the ground. Billeaud then

    retaliated by grabbing a wooden flag post and striking Vanderveen in the back of

    the neck.


[12] In   rejecting the proposed instruction, the trial court explained as follows:




          Court of Appeals of Indiana | Memorandum Decision 09A02-1409-CR-638 | July 1, 2015   Page 5 of 8
                You made it very clear that you weren’t going to give him a chance based upon the
                evidence that I heard for him to do anything that he didn’t have anything in his
                hand… you settled the situation right there on the spot before you had a chance to be
                threatened and you made it clear from your testimony, sir, that it wasn’t even going to
                escalate past that point.
[13] Appellant’s Brief   at 6. In addition to the trial court’s holding, the testimonies of two

   additional witnesses support the findings of the trial court. In this case, two people

   witnessed Billeaud act as the initial aggressor when he hit Vanderveen with the

   two-by-four wooden mount. To contradict that evidence, Billeaud testified to

   Vanderveen being the initial aggressor when Vanderveen hit Billeaud with the door

   of his semi-truck. Even taking Billeaud’s facts as true, Billeaud verbally instigated

   the altercation and struck Vanderveen in the back of the head as Vanderveen exited

   from his truck. Billeaud did not act without fault. At best he acted in mutual

   combat.

[14] “An   initial aggressor, must withdraw from the encounter and communicate the

   intent to do so to the other person before he may claim self-defense.” Tharpe v.

   State, 955 N.E.2d 844. Even assuming Billeaud subjectively feared the imminent

   use of unlawful force by Vanderveen, his fear was not objectively reasonable nor

   was the force used. We therefore conclude the trial court did not err in denying the

   self-defense jury instruction.

                                                         2.

[15] Billeaud   next argues there is insufficient evidence to support his conviction for

   resisting law enforcement. When reviewing the sufficiency of the evidence needed

   to support a criminal conviction, we neither reweigh evidence nor judge witness

   credibility. Henley v. State, 881 N.E.2d 639 (Ind. 2008). “We consider only the

       Court of Appeals of Indiana | Memorandum Decision 09A02-1409-CR-638 | July 1, 2015    Page 6 of 8
       evidence supporting the judgment and any reasonable inferences that can be drawn

       from such evidence.” Id. at 652. “[This court] will affirm unless no reasonable

       fact-finder could have found the crime proven beyond a reasonable doubt.” Dumes

       v. State, 23 N.E.3d 798, 801 (Ind. Ct. App. 2014).


[16]   To convict Billeaud of resisting law enforcement the State was required to prove

       he did knowingly or intentionally flee from a law enforcement officer after the

       officer had, by visible or audible means, including operation of sirens or emergency

       lights, identified himself or herself and ordered the person to stop. See I.C. § 35-

       44.1-3-1.

[17] Billeaud      admitted that he noticed the police officers driving behind him with their

       sirens and lights activated as he traveled on First and Market Street. At trial, he

       claimed he assumed they were after a motorcycle that had driven through a red

       traffic light. Billeaud also argued there was no place for him to pull over so he

       continued to drive, without increasing speed or committing any traffic violations,

       until he found an adequate area.

[18] In   Woodward v. State, 770 N.E.2d 897 (Ind. Ct. App. 2002), this court affirmed a

       conviction for resisting law enforcement when the defendant failed to pull over

       after being signaled by officers. “We cannot say that a person who has admitted to

       knowing that a police officer wishes to effectuate a traffic stop can, without

       adequate justification, choose the location of the stop.” Id. at 902. Similarly, the

       evidence is sufficient to show Billeaud knowingly or intentionally fled from law

       enforcement using a vehicle.


          Court of Appeals of Indiana | Memorandum Decision 09A02-1409-CR-638 | July 1, 2015   Page 7 of 8
[19] We    reject Billeaud’s invitation to reweigh the evidence and judge his credibility.

       The evidence in favor of the conviction establishes that Billeaud observed four

       police vehicles behind him, with lights and sirens activated. Although he had

       opportunity to stop numerous times before actually pulling over, Billeaud

       proceeded for four blocks. Officers activated their lights and sirens behind

       Billeaud, “[h]e continued down Market Street, to Third Street, turned north on

       Third Street, went down to High Street, turned east on High Street and then turned

       into the jail parking lot.” Transcript 73-74. The evidence is sufficient to show

       Billeaud knowingly or intentionally fled from law enforcement using a vehicle.

[20]   Judgment affirmed.

       Baker, J., and Najam, J., concur.




          Court of Appeals of Indiana | Memorandum Decision 09A02-1409-CR-638 | July 1, 2015   Page 8 of 8
