ILNews

Judges affirm jury instruction was not permitted under Barnes

Back to TopCommentsE-mailPrintBookmark and Share

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.

 

ADVERTISEMENT

  • 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!

Post a comment to this story

COMMENTS POLICY
We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
 
You are legally responsible for what you post and your anonymity is not guaranteed.
 
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
 
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
 
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.
 

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
ADVERTISEMENT
Subscribe to Indiana Lawyer
  1. Joseph Buser, Montgomery County Chief Prosecutor, has been involved in both representing the State of Indiana as Prosecutor while filing as Representing Attorney on behalf of himself and the State of Indiana in Civil Proceedings for seized cash and merchandise using a Verified Complaint For Forfeiture of Motor Vehicle, Us Currency And Reimbursement Of Costs, as is evident in Montgomery County Circuit Court Case Number 54C01-1401-MI-000018, CCS below, seen before Judge Harry Siamas, and filed on 01/13/2014. Sheriff Mark Castille is also named. All three defendants named by summons have prior convictions under Mr. Buser, which as the Indiana Supreme Court, in the opinion of The Matter of Mark R. McKinney, No. 18S00-0905-DI-220, stated that McKinney created a conflict of interest by simultaneously prosecuting drug offender cases while pocketing assets seized from defendants in those cases. All moneys that come from forfeitures MUST go to the COMMON SCHOOL FUND.

  2. I was incarcerated at that time for driving while suspended I have no felonies...i was placed on P block I remember several girls and myself asking about voting that day..and wasn't given a answer or means of voting..we were told after the election who won that was it.

  3. The number one way to reduce suffering would be to ban the breeding of fighting dogs. Fighting dogs maim and kill victim dogs Fighting dogs are the most essential piece of dog fighting Dog fighting will continue as long as fighting dogs are struggling to reach each other and maul another fih.longaphernalia

  4. Oh, and you fail to mention that you deprived the father of far FAR more time than he ever did you, even requiring officers to escort the children back into his care. Please, can you see that you had a huge part in "starting the war?" Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

  5. Patricia, i can't understand how painfully heartbreak ithis ordeal must have been for you. I read the appellate case and was surprised to see both sides of the story because your actions were harmful to your child; more so than the fathers. The evidence wasn't re weighed. It was properly reviewed for abuse of discretion as the trial court didn't consider whether a change of circumstance occurred or follow and define the statutes that led to their decision. Allowing a child to call a boyfriend "daddy" and the father by his first name is unacceptable. The first time custody was reversed to father was for very good reason. Self reflection in how you ultimately lost primary custody is the only way you will be able heal and move forward. Forgiveness of yourself comes after recognition and I truly hope you can get past the hurt and pain to allow your child the stability and care you recognized yourself that the father provides.

ADVERTISEMENT