MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing
May 16 2019, 6:47 am
the defense of res judicata, collateral
estoppel, or the law of the case. CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas C. Allen Curtis T. Hill, Jr.
Fort Wayne, Indiana Attorney General of Indiana
Matthew Koressel
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tracy A. Thomas, May 16, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2234
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Frances C. Gull,
Appellee-Plaintiff. Judge
Trial Court Cause No.
02D05-1704-F5-96
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2234 | May 16, 2019 Page 1 of 7
Case Summary
[1] On the evening of April 7, 2017, Fort Wayne Police Detectives (collectively,
“the Detectives”) were conducting surveillance on Tracy Thomas as part of an
investigation into a reported domestic disturbance involving a firearm. During
the course of their surveillance, the Detectives observed Thomas committing
numerous traffic infractions and initiated a traffic stop. Thomas did not stop
his vehicle immediately and when he did stop, he failed to follow the
Detectives’ directions and engaged in a physical struggle with the Detectives.
During this struggle, Thomas bit one of the Detectives, causing her to suffer
injury and pain. Thomas was convicted of Level 5 felony battery on a public
safety official following a jury trial. He contends on appeal that the evidence is
insufficient to sustain his conviction. We affirm.
Facts and Procedural History
[2] On the evening of April 7, 2017, Fort Wayne Police Detective Sergeant Gary
Hensler was conducting surveillance on Thomas as part of an investigation into
a domestic incident that involved the use of a firearm. In light of information
learned during the ongoing investigation, Detective Sergeant Hensler and
Detectives Matthew Foote and Shannon Hughes initiated a traffic stop after
observing Thomas commit numerous traffic infractions. Given the nature of
the ongoing investigation, the Detectives decided to conduct “a modified felony
stop,” which included the Detectives taking additional safety precautions. Tr.
Vol. II p. 85.
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[3] Thomas failed to immediately yield to the Detectives’ flashing emergency lights
and sirens. Once he stopped and exited his vehicle, Thomas “refused to turn
away from [the Detectives] and he refused to walk backwards to the sound of
[their] voice[s] which were the commands.” Tr. Vol. II p. 134. He also
disobeyed the Detectives’ orders to take his hands out of his pockets. Thomas’s
actions caused the Detectives to be concerned about whether he was reaching
for a weapon hidden on his person. Thomas, who was only a few feet away
from his vehicle, also kept looking back toward his vehicle. He displayed
“indecisiveness like he was trying to decide whether to get back in the car, not
to listen[.]” Tr. Vol. II p. 89. Because the Detectives were “unsure what his
intentions were at that point[,]” tr. vol. II p. 89, they decided to treat the stop as
a “high risk traffic stop.” Tr. Vol. II p. 133.
[4] As they approached Thomas, Detective Sergeant Hensler and Detective Hughes
drew their weapons, pointing them towards the ground and away from
Thomas. Detective Foote, armed with a “less than lethal taser,” followed close
behind. Tr. Vol. II p. 135. Thomas initially ignored the Detectives’ orders to
get down on the ground but eventually partially complied. He then began
struggling with the Detectives, flailing his arms and attempting to get up off the
ground. Detective Foote slapped Thomas with the back of his hand in an
attempt to get him to comply with the Detective’s orders to stop resisting.
Thomas continued to struggle with Detective Foote, who delivered a “knee
strike” to Thomas’s body in another unsuccessful attempt to gain Thomas’s
compliance. Tr. Vol. II pp. 136 – 37. Thomas continued to resist and ignored
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numerous orders to put his hands behind his back. Detective Sergeant Hensler
“tased [Thomas], that was ineffective.” Tr. Vol. II p. 137.
[5] Detective Hughes eventually managed to straddle Thomas and gain control of
one of his arms. As she attempted to place Thomas in handcuffs, Thomas
threw her “off of his back” and “savagely” bit her arm. Tr. Vol. II pp. 119, 137.
Detective Foote placed his arm against the right side of Thomas’s neck in an
effort to incapacitate him. Detective Foote released the pressure after pulling
Thomas’s mouth away from Detective Hughes.
[6] Thomas then attempted to strike Detective Foote with a closed fist. Detective
Foote responded by “delivering several closed hand strikes to [Thomas’s] face
and head area.” Tr. Vol. II p. 137. Thomas continued to struggle. Eventually,
Detective Foote managed to pin Thomas under his knee and to incapacitate
Thomas by delivering “a one to two (2) second burst” of chemical spray in
Thomas’s eyes. Tr. Vol. II p. 138. Thomas finally stopped resisting and the
Detectives were able to place him in restraints. Thomas’s bite on Detective
Hughes’s arm, which was described by Detective Hughes as “[v]ery painful,”
resulted in immediate bruising and permanent scarring. Tr. Vol. II p. 119. A
handgun was subsequently recovered from underneath the driver’s seat of
Thomas’s vehicle.
[7] On April 13, 2017, the State charged Thomas with Level 5 felony battery on a
public service official, Level 5 felony carrying a handgun without a license, two
counts of Level 6 felony resisting law enforcement, and Class A misdemeanor
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possession of a firearm by a domestic batterer. Following a two-day trial, the
jury returned a guilty verdict on the battery charge but “hung” on the remaining
counts. Appellant’s App. Vol. II p. 186. The remaining counts were
subsequently dismissed pursuant to a plea agreement entered into by the parties.
As for the Level 5 battery conviction, the trial court sentenced Thomas to a five-
year term of imprisonment.
Discussion and Decision
[8] Thomas contends that the evidence is insufficient to sustain his conviction for
Level 5 felony battery on a public safety official.
We do not reweigh evidence or reassess the credibility of
witnesses when reviewing a conviction for the sufficiency of the
evidence. We view all evidence and reasonable inferences drawn
therefrom in a light most favorable to the conviction, and will
affirm if there is substantial evidence of probative value
supporting each element of the crime from which a reasonable
trier of fact could have found the defendant guilty beyond a
reasonable doubt.
Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013) (internal citation and quotation
omitted). A person commits Level 5 felony battery on a public safety official
when he knowingly or intentionally “touches another person in a rude,
insolent, or angry manner” and the touching “results in bodily injury to … a
public safety official while the official is engaged in the official’s official duties.”
Ind. Code § 35-42-2-1(c), (g). A “public safety official” includes “a law
enforcement officer.” Ind. Code § 35-42-2-1(a)(1).
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[9] In challenging his conviction, Thomas argues that the State failed to rebut his
self-defense claim.
A valid claim of defense of oneself or another person is legal
justification for an otherwise criminal act. In order to prevail on
such a claim, the defendant must show that he: (1) was in a place
where 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, 800 (Ind. 2002) (internal citations omitted). A
person, however, is not justified in using force against a public servant if “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(j)(4).
When a claim of self-defense is raised and finds support in the
evidence, the State has the burden of negating at least one of the
necessary elements. If a defendant is convicted despite his claim
of self-defense, this Court will reverse only if no reasonable
person could say that self-defense was negated by the State
beyond a reasonable doubt.
Wilson, 770 N.E.2d at 800–01 (internal citations omitted). “The standard of
review for a challenge to the sufficiency of the evidence to rebut a claim of self-
defense is the same standard for any sufficiency of the evidence claim.” Id. at
801.
[10] In arguing that the State failed to rebut his self-defense claim, Thomas asserts
that he was justified in defending himself because the Detectives cannot be said
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to have been engaged in the lawful execution of their duties given that they used
unreasonable force in their attempts to detain him. We disagree. Testimony
from each of the Detectives indicates that Thomas was repeatedly non-
compliant with their orders. While the Detectives admittedly used force in their
attempts to restrain Thomas, one could reasonably infer from the record that
the amount of force used by the Detectives directly correlated to the nature of
Thomas’s resistance, i.e., that the nature of the force used by the Detectives
escalated in proportion to the length and nature of Thomas’s resistance. Once
Thomas stopped resisting, the Detectives refrained from using any additional
force.
[11] The record supports the jury’s conclusions that the Detectives’ use of force was
reasonable, the Detectives were acting in the lawful execution of their duties
when Thomas bit Detective Hughes, and Thomas knew the Detectives were
acting lawfully in executing their duties. It therefore supports the jury’s
determination that the State rebutted Thomas’s self-defense claim. Thomas’s
argument to the contrary amounts to nothing more than an invitation for this
court to reweigh the evidence, which we will not do. See Walker, 998 N.E.2d at
726.
[12] The judgment of the trial court is affirmed.
Crone, J., and Tavitas, J., concur.
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