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
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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