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Pursuant to Ind. Appellate Rule 65(D), this 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: JENNIFER A. JOAS Madison, Indiana ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana

FILED
Sep 11 2009, 9:09 am
of the supreme court, court of appeals and tax court

IN THE COURT OF APPEALS OF INDIANA
STEPHEN R. THOMAS, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

CLERK

No. 39A01-0812-CR-582

APPEAL FROM THE JEFFERSON CIRCUIT COURT The Honorable Ted R. Todd, Judge Cause No. 39C01-0610-FC-91

September 11, 2009 MEMORANDUM DECISION - NOT FOR PUBLICATION DARDEN, Judge

STATEMENT OF THE CASE Stephen R. Thomas appeals his conviction, after a jury trial, of battery resulting in serious bodily injury, a class C felony, and the sentence imposed thereon. We affirm. ISSUES 1. Whether the prosecutor committed misconduct that constitutes fundamental error and requires reversal of Thomas conviction. 2. Whether there was juror misconduct that constitutes fundamental error and requires reversal of the conviction. 3. Whether the sentence is inappropriate. FACTS In 2006, Thomas, Dave Engle, and Doug Jackson each owned property in a rural area approximately twenty-five minutes by curvy, narrow country roads from Madison. A number of incidents had given rise to hard feelings between Jackson and the other men. In the late afternoon of September 30, 2006, Jackson was finishing work on a project in Madison when his wife, Linda, stopped by. He indicated that he would be leaving shortly and that he would buy gas before driving home; she indicated her intention to buy groceries and then drive home. When Jackson saw Engles truck at the gas station, he parked at the pump farthest away. As Jackson was pumping gas, Thomas emerged from inside the station and yelled, "Dickhead. Hey dickhead. Your name is dickhead." (Tr. 349). Thomas then walked to within five feet of Jackson, spat at him, and said, "I hear youre leaving." (Tr. 351). Jackson asked him what he meant, and Thomas said, "Youre going to move." Id. 2

Jackson told him he was not going anywhere. Thomas walked away and got in Engles truck. Jackson went inside the station and paid for his gas. When he came out, Engles truck was gone. Jackson started driving toward his home. Linda called and asked whether he had seen Engles truck at the gas station; he said that he had, and that there had been a confrontation. He told his wife that he was on the way home, and she said that she would be following shortly. Approximately fifteen minutes outside of Madison, Jackson saw Engles truck ahead of him on the roadway, and he purposefully stayed quite a distance behind. At the intersection with the gravel roadway on which all three men lived, Engles truck stopped. Jackson stopped a short distance behind. After several minutes, Engles truck began moving on the roadway toward their respective properties. A minute or so later, when Engles truck was out of sight, Jackson drove down the same road way. When Jackson next saw the truck, it had slowed at a narrow rise of roadway, when suddenly Engle "locked his brakes and . . . slid the vehicle sideways and blocked" the left side of the roadway. Jackson stopped in the middle of the roadway, waited momentarily, and then decided to try to drive his truck past Engles on the right side of the roadway. As Jackson pulled his truck off the right edge of the roadway, he saw Thomas emerge from the passenger side of Engles truck with "his hand behind him as he got out." (Tr. 386). As Thomas moved "toward [his]s vehicle," Jackson instinctively turned the wheel to the right

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