MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 25 2016, 8:17 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael J. Kyle Gregory F. Zoeller Franklin, Indiana Attorney General of Indiana
Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Bryan Cunningham, August 25, 2016 Appellant-Defendant, Court of Appeals Case No. 41A01-1602-CR-237 v. Appeal from the Johnson Superior Court State of Indiana, The Honorable Cynthia S. Emkes, Appellee-Plaintiff. Judge Trial Court Cause No. 41D02-1401-FD-47
Altice, Judge.
[1] Following a jury trial, David Cunningham was convicted of class D felony
battery and class A misdemeanor resisting law enforcement. On appeal,
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 1 of 7 Cunningham argues that the trial court abused its discretion by refusing to
instruct the jury on self-defense.
[2] We affirm.
Facts & Procedural History
[3] On the afternoon of January 9, 2014, Officer Jacob York of the Greenwood
Police Department, Sergeant Steven Fitzpatrick of the Indianapolis
Metropolitan Police Department, Indiana State Trooper Brian Harshman, and
a number of other law enforcement officers were executing arrest warrants as
part of their work with an inter-agency task force dedicated to apprehending
violent fugitives. The officers went to a residence in Nineveh in an attempt to
locate Cunningham’s son, Christopher, who was wanted on a probation
violation warrant. When Officer York knocked on the front door, Cunningham
answered and told Officer York that he was not in need of assistance and the
officers could leave. Officer York explained that the officers were looking for
Christopher, and Cunningham responded that Christopher did not live there.
Officer York told Cunningham that the officers had a warrant for that address
and that if Cunningham did not open the door, they would force entry.
Cunningham then told Officer York to go to the back door.
[4] Officer York and Sergeant Fitzpatrick went to the back door, and when
Cunningham appeared, Officer York again explained that he had a warrant and
needed to go inside. Cunningham asked to see the warrant, and as Officer
York began removing the warrant from its folder, Cunningham said he needed
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 2 of 7 his glasses and went back inside, closing the door behind him. Several minutes
later, Cunningham came back outside with a jacket and glasses. Officer York
showed him the warrant, and Cunningham reached into his pocket and pulled
out a cell phone. Cunningham told Officer York that he was going to call the
judge to find out what was going on. At that point, Officer York told
Cunningham “that’s enough” and grabbed Cunningham’s left wrist and placed
his hand on his lower back in an attempt to escort him away from the house.
Transcript at 44. Cunningham then threw a punch at Officer York, but missed.
Sergeant Fitzpatrick and Trooper Harshman both intervened, and Cunningham
fought with all three officers. During the altercation, Cunningham punched
Sergeant Fitzpatrick in the back of the head and Trooper Harshman sustained a
badly skinned thumb. Once the officers subdued him, Cunningham started
yelling for Christopher. Christopher was subsequently located inside the house
and taken into custody.
[5] As a result of these events, the State charged Cunningham with two counts of
class D felony battery—one count with Sergeant Fitzpatrick as the victim and
the other with Trooper Harshman as the victim—and class A misdemeanor
resisting law enforcement. A jury trial was conducted on August 25, 2015, and
Cunningham was found guilty of battery on Sergeant Fitzpatrick and resisting
law enforcement, but acquitted of battery on Trooper Harshman. Cunningham
now appeals. Additional facts will be provided as necessary.
Discussion & Decision
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 3 of 7 [6] Cunningham argues that the trial court abused its discretion by refusing to
instruct the jury on self-defense. As this court has explained,
[t]he purpose of jury instructions is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. In reviewing a trial court’s decision to give a tendered jury instruction, we consider (1) whether the instruction correctly states the law, (2) is supported by the evidence in the record, and (3) is not covered in substance by other instructions. The trial court has discretion in instructing the jury, and we will reverse only when the instructions amount to an abuse of discretion. To constitute an abuse of discretion, the instructions given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury. We will consider jury instructions as a whole and in reference to each other, not in isolation.
Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010) (quoting Murray v.
State, 798 N.E.2d 895, 899-900 (Ind. Ct. App. 2003)).
[7] In this case, Cunningham tendered a self-defense instruction based on Criminal
Instruction 10.0700 of the Indiana Pattern Jury Instructions. The State
concedes that the instruction correctly stated the law and was not covered in
substance by other instructions. Thus, the only issue we must consider is
whether the instruction was supported by the evidence in the record.1 A
1 Cunningham also argues that the trial court denied his proposed self-defense instruction based on its erroneous finding that the request was untimely pursuant to Ind. Code § 35-41-3-11, also known as the “effects of battery statute.” See Marley v. State, 747 N.E.2d 1123, 1126 (Ind. 2001). Cunningham argues that I.C. § 35-41-3-11 is inapplicable to the facts of this case, a point the State concedes. We note, however, that the trial court’s decision appears to have been premised on both the lack of notice and a finding that the
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 4 of 7 defendant is entitled to a jury instruction on any theory of defense which has
some foundation in the evidence. Hernandez v. State, 45 N.E.3d 373, 376 (Ind.
2015). “We apply this rule even if the evidence is weak and inconsistent so
long as the evidence presented at trial has some probative value to support it.”
Id. (quoting Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct. App. 2001)).
[8] I.C. § 35-41-3-2(i) provides in relevant part that a person is justified in using
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 25 2016, 8:17 am
regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Michael J. Kyle Gregory F. Zoeller Franklin, Indiana Attorney General of Indiana
Jesse R. Drum Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
David Bryan Cunningham, August 25, 2016 Appellant-Defendant, Court of Appeals Case No. 41A01-1602-CR-237 v. Appeal from the Johnson Superior Court State of Indiana, The Honorable Cynthia S. Emkes, Appellee-Plaintiff. Judge Trial Court Cause No. 41D02-1401-FD-47
Altice, Judge.
[1] Following a jury trial, David Cunningham was convicted of class D felony
battery and class A misdemeanor resisting law enforcement. On appeal,
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 1 of 7 Cunningham argues that the trial court abused its discretion by refusing to
instruct the jury on self-defense.
[2] We affirm.
Facts & Procedural History
[3] On the afternoon of January 9, 2014, Officer Jacob York of the Greenwood
Police Department, Sergeant Steven Fitzpatrick of the Indianapolis
Metropolitan Police Department, Indiana State Trooper Brian Harshman, and
a number of other law enforcement officers were executing arrest warrants as
part of their work with an inter-agency task force dedicated to apprehending
violent fugitives. The officers went to a residence in Nineveh in an attempt to
locate Cunningham’s son, Christopher, who was wanted on a probation
violation warrant. When Officer York knocked on the front door, Cunningham
answered and told Officer York that he was not in need of assistance and the
officers could leave. Officer York explained that the officers were looking for
Christopher, and Cunningham responded that Christopher did not live there.
Officer York told Cunningham that the officers had a warrant for that address
and that if Cunningham did not open the door, they would force entry.
Cunningham then told Officer York to go to the back door.
[4] Officer York and Sergeant Fitzpatrick went to the back door, and when
Cunningham appeared, Officer York again explained that he had a warrant and
needed to go inside. Cunningham asked to see the warrant, and as Officer
York began removing the warrant from its folder, Cunningham said he needed
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 2 of 7 his glasses and went back inside, closing the door behind him. Several minutes
later, Cunningham came back outside with a jacket and glasses. Officer York
showed him the warrant, and Cunningham reached into his pocket and pulled
out a cell phone. Cunningham told Officer York that he was going to call the
judge to find out what was going on. At that point, Officer York told
Cunningham “that’s enough” and grabbed Cunningham’s left wrist and placed
his hand on his lower back in an attempt to escort him away from the house.
Transcript at 44. Cunningham then threw a punch at Officer York, but missed.
Sergeant Fitzpatrick and Trooper Harshman both intervened, and Cunningham
fought with all three officers. During the altercation, Cunningham punched
Sergeant Fitzpatrick in the back of the head and Trooper Harshman sustained a
badly skinned thumb. Once the officers subdued him, Cunningham started
yelling for Christopher. Christopher was subsequently located inside the house
and taken into custody.
[5] As a result of these events, the State charged Cunningham with two counts of
class D felony battery—one count with Sergeant Fitzpatrick as the victim and
the other with Trooper Harshman as the victim—and class A misdemeanor
resisting law enforcement. A jury trial was conducted on August 25, 2015, and
Cunningham was found guilty of battery on Sergeant Fitzpatrick and resisting
law enforcement, but acquitted of battery on Trooper Harshman. Cunningham
now appeals. Additional facts will be provided as necessary.
Discussion & Decision
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 3 of 7 [6] Cunningham argues that the trial court abused its discretion by refusing to
instruct the jury on self-defense. As this court has explained,
[t]he purpose of jury instructions is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. In reviewing a trial court’s decision to give a tendered jury instruction, we consider (1) whether the instruction correctly states the law, (2) is supported by the evidence in the record, and (3) is not covered in substance by other instructions. The trial court has discretion in instructing the jury, and we will reverse only when the instructions amount to an abuse of discretion. To constitute an abuse of discretion, the instructions given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury. We will consider jury instructions as a whole and in reference to each other, not in isolation.
Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010) (quoting Murray v.
State, 798 N.E.2d 895, 899-900 (Ind. Ct. App. 2003)).
[7] In this case, Cunningham tendered a self-defense instruction based on Criminal
Instruction 10.0700 of the Indiana Pattern Jury Instructions. The State
concedes that the instruction correctly stated the law and was not covered in
substance by other instructions. Thus, the only issue we must consider is
whether the instruction was supported by the evidence in the record.1 A
1 Cunningham also argues that the trial court denied his proposed self-defense instruction based on its erroneous finding that the request was untimely pursuant to Ind. Code § 35-41-3-11, also known as the “effects of battery statute.” See Marley v. State, 747 N.E.2d 1123, 1126 (Ind. 2001). Cunningham argues that I.C. § 35-41-3-11 is inapplicable to the facts of this case, a point the State concedes. We note, however, that the trial court’s decision appears to have been premised on both the lack of notice and a finding that the
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 4 of 7 defendant is entitled to a jury instruction on any theory of defense which has
some foundation in the evidence. Hernandez v. State, 45 N.E.3d 373, 376 (Ind.
2015). “We apply this rule even if the evidence is weak and inconsistent so
long as the evidence presented at trial has some probative value to support it.”
Id. (quoting Howard v. State, 755 N.E.2d 242, 247 (Ind. Ct. App. 2001)).
[8] I.C. § 35-41-3-2(i) provides in relevant part that a person is justified in using
reasonable force against a public servant if the person reasonably believes the
force is necessary to protect himself from the imminent use of unlawful force.
A defendant claiming self-defense must show that he: (1) was in a place where
he had a right to be; (2) acted without fault; and (3) was in reasonable fear or
apprehension of bodily harm. Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003).
If Cunningham presented some evidence that could support finding each of
these factors, he was entitled to a self-defense instruction. See Hernandez, 45
N.E.3d at 377.
[9] Cunningham argues that testimony establishing that Officer York initiated
physical contact with him by grabbing his wrist provided some support for the
proposition that he was in reasonable fear of the imminent use of unlawful
force. Even if we assume that Cunningham was subjectively in fear, he has not
instruction was not supported by the evidence in the record. Transcript at 137 (“I did take some time during the break to look at this issue. Not only the timeliness of it but you know, when it’s raised and whether or not there’s support in the evidence for it. So I am going to deny defendant’s proposed . . instruction.”). In any event, this court “will sustain the trial court if it can be done on any legal ground apparent in the record.” Ratliff v. State, 770 N.E.2d 807, 809 (Ind. 2002). Because we find it dispositive, we will focus our attention on the question of whether the proposed self-defense instruction was supported by the evidence in the record.
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 5 of 7 directed our attention to any evidence suggesting that such fear was objectively
reasonable. See Russell v. State, 997 N.E.2d 351, 353 (Ind. 2013) (explaining that
“a claim of self-defense must be evaluated . . . by considering the objective
reasonableness of the defendant’s belief that he was in imminent harm”). The
officers were wearing clothing clearly identifying them as law enforcement
officers, and Officer York explained to Cunningham that they were there to
execute a warrant for Christopher’s arrest. Officer York informed Cunningham
that the officers had the right to enter the home by force if necessary, but
instead of doing so, the officers complied with Cunningham’s request to go to
the back door. When Cunningham abruptly went back inside the house to
retrieve his glasses, the officers waited several minutes for him to come back
outside. When Cunningham asked to see the warrant, Officer York provided it
to him. It was not until Cunningham pulled out a cell phone and stated that he
was going to call the judge that Officer York grabbed Cunningham’s wrist and
placed his hand on his back in an attempt to escort him away from the house.
There is no evidence that Officer York did so aggressively or caused
Cunningham any pain or injury. Nevertheless, Cunningham started throwing
punches, necessitating the intervention of two other officers to subdue him. We
cannot conclude that this evidence could support a finding that Cunningham
was in reasonable fear of bodily harm, nor could it support a finding that he
acted without fault. We therefore conclude that the trial court did not abuse its
discretion in refusing to instruct the jury regarding self-defense.
[10] Judgment affirmed.
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 6 of 7 Bradford, J. and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 41A01-1602-CR-237 | August 25, 2016 Page 7 of 7