Otis Charles Mitchell v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Feb 28 2020, 10:41 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Samuel J. Dayton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Otis Charles Mitchell, February 28, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1973
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark K. Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-1703-F6-627
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1973 | February 28, 2020 Page 1 of 8
Statement of the Case
[1] Otis Charles Mitchell appeals the trial court’s revocation of his probation.
Mitchell raises a single issue for our review, namely, whether the trial court
erroneously rejected his claim of self-defense against a correctional officer on
the ground that an inmate could not claim self-defense. As Mitchell is mistaken
in his understanding of why the trial court rejected his claim of self-defense, we
affirm.
Facts and Procedural History
[2] On April 7, 2019, James Biby was working as a correctional officer at a work-
release facility in Pendleton. That facility consisted in relevant part of a day
room, where inmates were permitted, and a control room, where officers could
monitor the inmates. The day room and the control room were separated by a
locked door with a buzzer that the prisoners could use to communicate with the
officers. An orange line was marked on the ground a few feet in front of the
door.
[3] That day, Mitchell crossed the orange line, approached the buzzer, and pushed
the buzzer for approximately ten minutes. Several of the correctional officers
directed Mitchell “to get off the buzzer and stand behind the orange line,” but
Mitchell refused. Tr. at 10. Officer Biby then repeated those commands, and
Mitchell responded by saying “he’s not f***ing moving.” Id. Mitchell then
began hitting the doors. Pushing the buzzer repeatedly is a facility rule
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1973 | February 28, 2020 Page 2 of 8
violation. It is also a facility rule violation “to stand in front of the orange line
after being told to go behind the orange line.” Id. at 11.
[4] In light of Mitchell’s recalcitrance, Officer Biby opened the door and “repeated
[the] command for [Mitchell] to step back.” Id. at 12. Instead, Mitchell
“squared up” to Officer Biby, “attempted to place his face on [Officer Biby’s]
face,” and took an “aggressive stance.” Id. Mitchell also “continued to yell” at
Officer Biby. Id. Pursuant to his training, Officer Biby “attempted to grab
[Mitchell’s] wrist and place him in cuffs.” Id. Mitchell “then . . . struck [Officer
Biby] in the face.” Id. After a short struggle, officers restrained Mitchell.
[5] The State filed its petition to revoke Mitchell’s placement on work release. At
an ensuing fact-finding hearing to the trial court, Officer Biby testified about the
April 7 incident, and the State played a security video that corroborated Officer
Biby’s testimony. Mitchell asserted that “[t]he only thing that led to [the fight]
is the officers provoked [Mitchell] into combat” and, as such, he merely acted
in self-defense when he struck Officer Biby. Id. at 34-35.
[6] The trial court responded to the State’s evidence and Mitchell’s claim of self-
defense as follows:
I find the State has met its burden of proof as to [the fight
allegation]. Why do I do that Mr. Mitchell? . . . [B]ased on the
testimony and in the video . . . it clearly was not a preplanned
[“]let’s get Mr. Mitchell[”] from the [officers]. It was a response
to your conduct that day. . . . [I]t’s very clear to me from the
video that . . . you buzzed, you go away, you come back. You
buzzed repeatedly. You’re . . . agitated, your hand gestures. . . .
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[C]learly your hand gestures indicate that you were upset about
something . . . . [T]hey responded . . . and the video clearly
shows that [Officer Biby] came through the door before anything
other than you turning towards him. You get shoved in the
chest. He goes for your arm. You strike back. That’s the problem
is where you are you don’t have that option. That’s not available to you.
And so . . . that’s why this Court has ruled the way it has.
Id. at 36-37 (emphasis added). The court then revoked Mitchell’s placement on
work release. This appeal ensued.
Discussion and Decision
[7] Mitchell appeals the trial court’s revocation of his placement on work release.
As our Supreme Court has explained:
For purposes of appellate review, we treat a hearing on a petition
to revoke a placement in a community corrections program the
same as we do a hearing on a petition to revoke probation.
Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998). The
similarities between the two dictate this approach. Both
probation and community corrections programs serve as
alternatives to commitment to the Department of Correction and
both are made at the sole discretion of the trial court. Million v.
State, 646 N.E.2d 998, 1001 (Ind. Ct. App. 1995). A defendant is
not entitled to serve a sentence in either probation or a
community corrections program. Rather, placement in either is a
“matter of grace” and a “conditional liberty that is a favor, not a
right.” Id. at 1002 (quoting Gilfillen v. State, 582 N.E.2d 821, 824
(Ind. 1991)).
***
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Our standard of review of an appeal from the revocation of a
community corrections placement mirrors that for revocation of
probation. Brooks, 692 N.E.2d at 953. A probation hearing is
civil in nature and the State need only prove the alleged
violations by a preponderance of the evidence. Braxton v. State,
651 N.E.2d 268, 270 (Ind. 1995). We will consider all the
evidence most favorable to supporting the judgment of the trial
court without reweighing that evidence or judging the credibility
of witnesses. Id. If there is substantial evidence of probative
value to support the trial court’s conclusion that a defendant has
violated any terms of probation, we will affirm its decision to
revoke probation. Id. (citing Menifee v. State, 600 N.E.2d 967, 970
(Ind. Ct. App. 1992)).
Cox v. State, 706 N.E.2d 547, 549, 551 (Ind. 1999) (footnotes omitted).
[8] According to Mitchell, the trial court here erred as a matter of law when it
rejected his claim of self-defense. “A valid claim of self-defense is legal
justification for an otherwise criminal act.” Coleman v. State, 946 N.E.2d 1160,
1165 (Ind. 2011). A claim of self-defense generally requires the defendant to
show “(1) he was in a place where he had a right to be; (2) he acted without
fault; and (3) he had a reasonable fear of death or great bodily harm.” Id.[9] Specifically, Mitchell asserts that the only reason the trial court rejected his
claim of self-defense was the court’s mistaken belief that that defense was not
available to an inmate. Despite his argument that, as a matter of law, an
inmate is entitled to claim self-defense against an officer, Mitchell makes no
mention of Indiana Code Section 35-41-3-2, which expressly provides for claims
of self-defense against correctional officers, who are public servants, in relevant
part as follows:
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(i) A person is justified in using reasonable force against a public
servant if the person reasonably believes the force is necessary to:
(1) protect the person or a third person from what the
person reasonably believes to be the imminent use of
unlawful force . . . .
(j) Notwithstanding subsection (i), a person is not justified in
using force against a public servant if:
(1) the person is committing or is escaping after the
commission of a crime;
(2) the person provokes action by the public servant with
intent to cause bodily injury to the public servant;
(3) the person has entered into combat with the public
servant or is the initial aggressor, unless the person
withdraws from the encounter and communicates to the
public servant the intent to do so and the public servant
nevertheless continues or threatens to continue unlawful
action; or
(4) 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 (2019); see also I.C. § 35-31.5-2-185(a)(1).
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[10] We think Mitchell’s failure to so much as mention an obviously relevant and
potentially controlling statute is a waiver of his appellate argument. As he fails
to not even mention Indiana Code Section 35-41-3-2, he certainly does not
apply the facts to that statute or otherwise present any cogent argument as to
how those statutory provisions may or may not apply here. Accordingly,
Mitchell’s appellate argument is waived for not being supported by citation to
relevant authority or cogent reasoning. Ind. Appellate Rule 46(A)(8)(a).
[11] Waiver notwithstanding, Mitchell’s argument hinges on the trial court’s
statement at the close of the fact-finding hearing that “the problem is where you
are you don’t have that option. That’s not available to you.” Tr. at 37.
Mitchell interprets that statement to mean that the court concluded that he was
unable to claim self-defense as a matter of law. We cannot agree with
Mitchell’s interpretation of the trial court’s statement.
[12] The trial court’s comment was within the court’s assessment of the totality of
the evidence. Again, the court stated as follows:
I find the State has met its burden of proof as to [the fight
allegation]. Why do I do that Mr. Mitchell? . . . [B]ased on the
testimony and in the video . . . it clearly was not a preplanned
[“]let’s get Mr. Mitchell[”] from the [officers]. It was a response
to your conduct that day. . . . [I]t’s very clear to me from the
video that . . . you buzzed, you go away, you come back. You
buzzed repeatedly. You’re . . . agitated, your hand gestures. . . .
[C]learly your hand gestures indicate that you were upset about
something . . . . [T]hey responded . . . and the video clearly
shows that [Officer Biby] came through the door before anything
other than you turning towards him. You get shoved in the
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chest. He goes for your arm. You strike back. That’s the problem
is where you are you don’t have that option. That’s not available to you.
And so . . . that’s why this Court has ruled the way it has.
Id. at 36-37 (emphasis added).
[13] Although the italicized language above could have been more clear, we
conclude that the totality of the court’s commentary reflects its position that the
evidence did not support Mitchell’s claim of self-defense as a matter of fact, not
that Mitchell could not raise such a defense as a matter of law. But Mitchell
makes no argument on appeal as to whether the court erred in its assessment of
the evidence against him. Thus, Mitchell has not met his burden on appeal to
demonstrate reversible error. App. R. 46(A)(8)(a).
[14] That said, Officer Biby’s testimony, which was corroborated by the security
video, supports the trial court’s conclusion that the facts were not with Mitchell
on his self-defense claim. The evidence shows Mitchell was over the orange
line—a place he was not permitted to be after the officers told him to step back;
Mitchell provoked the action or was the initial aggressor; and Officer Biby’s
actions were lawful and in the execution of his official duties. Accordingly, we
affirm the trial court’s revocation of Mitchell’s placement on work release.
[15] Affirmed.
Vaidik, J., and Tavitas, J., concur.
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