Judges affirm jury instruction was not permitted under Barnes

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The Howard Superior Court was correct in refusing a defendant’s instruction that provided a defense to his resisting arrest charges. The 2011 Supreme Court ruling in Barnes v. State did not permit his proposed instruction, the Indiana Court of Appeals held.

Napoleon Gracia Sr. appealed his convictions of Class C felony disarming of a law enforcement officer, Class A misdemeanor battery, and Class A misdemeanor resisting law enforcement following an arrest in 2010. Officers came to his Kokomo home to serve a search warrant because of possible drug activity. Gracia waited in the garage as the warrant was being executed. After police found a leafy plant substance and items associated with smoking and sale of marijuana, officers attempted to arrest Gracia. He refused to put his hands behind his back, pulled away, and was tased. He then charged at officers, who sprayed him in the face with mace. Gracia punched one officer and tried to remove that officer’s gun from his holster.

At his trial in Howard Superior Court I, Gracia wanted the court to give a jury instruction stating Garcia could resist the officer’s use of excessive force by the use of reasonable force to protect himself. The trial court refused the instruction, citing Barnes, 946 N.E.2d 572 (Ind. 2011).

In Napoleon Gracia, Sr. v. State of Indiana, 34A04-1112-CR-667, the appellate court affirmed that the instruction was not a “good statement of the law” in light of Barnes, which held “there is no right to reasonably resist unlawful entry by police officers.” Judge Nancy Vaidik noted that the Legislature has since amended Indiana law to restore a citizen’s right to use reasonable force to protect himself against unlawful entry by police officers.

Gracia also claimed the state engaged in impermissible forum shopping when it filed the charges in Howard Superior Court I. Local rules dictate a weekly rotation among certain Howard County courts, and for the most part, a prosecutor should file a felony criminal charge in the court designated by the weekly rotation. Court I is not included in the rotating system.

The judges agreed that Court I was not the proper forum for Gracia’s case, but he didn’t object to the filing of charges in that court. The COA analyzed his appeal using fundamental error and found that he couldn’t show he was prejudiced or denied a fair trial. His argument that the prosecutor disregarded local rules is no substitute for this showing, Vaidik wrote.

The appellate court also upheld his eight-year sentence, pointing to Gracia’s history of resisting law enforcement and the seriousness of this latest incident.



  • Reason
    If there is no right to resist unlawful entry by a police officer why did Indiana pass a law that allows residents to use deadly force against thug cops that use the I heard something then break the door down. The answer is because to many cops went too far too many times!

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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

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  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

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