Napoleon Gracia, Sr. v. State of Indiana

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;
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(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
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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
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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.
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