      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                              FILED
      this Memorandum Decision shall not be                          Jul 25 2016, 8:49 am

      regarded as precedent or cited before any                           CLERK
                                                                      Indiana Supreme Court
      court except for the purpose of establishing                       Court of Appeals
                                                                           and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Suzy St. John                                            Gregory F. Zoeller
      Marion County Public Defender                            Attorney General of Indiana
      Indianapolis, Indiana                                    Ellen H. Meilaender
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Dereck D. Hendricks,                                     July 25, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A04-1510-CR-1558
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Rebekah F.
      Appellee-Plaintiff                                       Pierson-Treacy, Judge
                                                               Trial Court Cause No.
                                                               49G19-1506-CM-019482



      Mathias, Judge.


[1]   Dereck Hendricks (“Hendricks”) was convicted in Marion Superior Court of

      Class A misdemeanor resisting law enforcement. Hendricks appeals and raises


      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1558 | July 25, 2016    Page 1 of 10
      the following dispositive argument: whether the evidence is insufficient to

      support his conviction because the State failed to prove that the law

      enforcement officers were lawfully engaged in the execution of their duties.


[2]   Concluding that the law enforcement officers were not lawfully engaged in the

      execution of their duties, we reverse and remand for proceeding consistent with

      this opinion.

                                     Facts and Procedural History

[3]   Hendricks and Eteria Jackson (“Jackson”) lived together with their two

      children at a residence on North Gale Street in Indianapolis. On June 2, 2015,

      Jackson called 911 at approximately 3:30 a.m. and reported that Hendricks had

      attempted to choke her while she was sleeping. Jackson stated that Hendricks

      was still at their home on North Gale Street with their teenaged children and

      nephew, and she was at her sister’s home nearby. Jackson stated that she did

      not need an ambulance. She also told the 911 operator that she intended to go

      back to her house. The operator advised her not to return to the residence until

      the police had arrived.

[4]   Indianapolis Metropolitan Police Officers Jason Thalheimer and Francisco

      Olmos were dispatched to Hendricks’ and Jackson’s residence. Hendricks

      appeared at the front door in response to the officers’ knock. Hendricks asked

      why the officers were at his home, and he was informed that someone had

      called 911. Hendricks told the officers that they were not needed and told them

      to leave. Officer Thalheimer asked to come into the residence to speak with


      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1558 | July 25, 2016   Page 2 of 10
      Hendricks because “somebody’s making allegations about somebody being

      choked inside the house, a female.” Tr. p. 19. The officers told Hendricks that

      they wanted to come inside the residence to make sure no one had been

      choked. Hendricks refused to let them inside and told the officers to leave his

      property.


[5]   Through the doorway of the home, the officers could see several people sitting

      on the couch in the living room, but nothing appeared to be amiss. The officers

      remained near the front door and began to discuss whether to call their

      supervisor about gaining entry into the residence. Within minutes, Jackson

      walked around the side of the house and stated that she had called 911. Jackson

      appeared to be uninjured.


[6]   Jackson walked up to the front door and unlocked it with her key. She opened

      the door for the officers. She pointed at Hendricks and stated “[t]hat’s him right

      there.” Tr. pp. 43-44. The officers remained outside the doorway and asked

      Hendricks to come outside to speak with them. After Hendricks refused, the

      officers ordered him to come outside, and he still refused to do so.


[7]   Intending to arrest Hendricks, both officers walked into the house and grabbed

      him by the arms to escort him outside. Hendricks jerked his arm away from

      Officer Olmos. The officer put Hendricks in a “bear hug” and struggled with

      him. Tr. p. 45. As they bumped into a wall, Officer Olmos told Hendricks to

      relax. Hendricks balled up his fists and tried to break free of the officers’ hold.

      Officer Thalheimer instructed Office Olmos to tase Hendricks.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1558 | July 25, 2016   Page 3 of 10
[8]    Officer Olmos grabbed his taser and warned Hendricks to put his hands behind

       his back. Hendricks refused to do so and was tased. Hendricks fell to the

       ground, and Officer Thalheimer placed Hendricks’ right hand behind his back.

       He then ordered Hendricks to place his left hand behind his back. Hendricks

       refused and Officer Olmos tased him again. The officers were then able to place

       Hendricks in handcuffs.

[9]    Hendricks was subsequently charged with two counts of Class A misdemeanor

       resisting law enforcement. A bench trial was held on September 4, 2015. At

       trial, Hendricks argued that the officers unlawfully entered his residence in

       violation of the Fourth Amendment, and therefore, he had a right to resist the

       unlawful entry. The trial court disagreed and found Hendricks guilty as

       charged. Hendricks now appeals.


                                         Discussion and Decision

[10]   Hendricks argues that the State failed to prove that the IMPD officers were

       lawfully engaged in the execution of their duties, and therefore, his resisting law

       enforcement conviction is not supported by sufficient evidence. When we

       review the sufficiency of the evidence needed to support a criminal conviction,

       we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907

       N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the

       judgment and any reasonable inferences that can be drawn from such

       evidence.” Id. We will affirm if substantial evidence of probative value exists

       such that a reasonable trier of fact could have concluded the defendant was

       guilty beyond a reasonable doubt. Id.
       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1558 | July 25, 2016   Page 4 of 10
[11]   To sustain a conviction for resisting law enforcement, the State had to prove

       that Hendricks knowingly or intentionally forcibly resisted, obstructed, or

       interfered “with a law enforcement officer or a person assisting the officer while

       the officer is lawfully engaged in the execution of the officer’s duties[.]” Ind. Code § 35-

       44.1-3-1(a) (emphasis added). Hendricks argued that the officers unlawfully

       entered his residence without a warrant in violation of the Fourth Amendment,

       and therefore, he had a right to resist their unlawful entry.


[12]   We also observe that in response to our supreme court’s opinion in Barnes v.

       State, 953 N.E.2d 473 (Ind. 2011), our General Assembly enacted Indiana Code

       section 35-41-3-2, otherwise known as the “Castle Doctrine.” See Cupello v.

       State, 27 N.E.3d 1122, 1129 (Ind. Ct. App. 2015).


               In enacting this section, the general assembly finds and declares
               that it is the policy of this state to recognize the unique character
               of a citizen’s home and to ensure that a citizen feels secure in his
               or her own home against unlawful intrusion by another
               individual or a public servant. By reaffirming the long standing
               right of a citizen to protect his or her home against unlawful
               intrusion, however, the general assembly does not intend to
               diminish in any way the other robust self defense rights that
               citizens of this state have always enjoyed. Accordingly, the
               general assembly also finds and declares that it is the policy of
               this state that people have a right to defend themselves and third
               parties from physical harm and crime. The purpose of this
               section is to provide the citizens of this state with a lawful means
               of carrying out this policy.


                                                        ***



       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1558 | July 25, 2016   Page 5 of 10
               (i) A person is justified in using reasonable force against a public
               servant if the person reasonably believes the force is necessary to:

               (1) protect the person or a third person from what the person
               reasonably believes to be the imminent use of unlawful force;

               (2) prevent or terminate the public servant’s unlawful entry of or
               attack on the person's dwelling, curtilage, or occupied motor
               vehicle; or

               (3) prevent or terminate the public servant’s unlawful trespass on
               or criminal interference with property lawfully in the person's
               possession, lawfully in possession of a member of the person's
               immediate family, or belonging to a person whose property the
               person has authority to protect.

               (j) Notwithstanding subsection (i), a person is not justified in
               using force against a public servant if:

                                                       ***

               (4) 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.


[13]   Importantly, the Fourth Amendment protects “the right of the people to be

       secure in their persons, houses, papers and effects, against unreasonable

       searches and seizures[.]” U.S. Const. Amend. IV. The protection against

       unreasonable governmental searches and seizures are a principal mode of

       discouraging lawless police conduct. Friend v. State, 858 N.E.2d 646, 650 (Ind.

       Ct. App. 2006) (citing Jones v. State, 655 N.E.2d 49, 54 (Ind. 1995); Terry v.
       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1558 | July 25, 2016   Page 6 of 10
       Ohio, 392 U.S. 1, 12 (1968)). When the police conduct a warrantless search, the

       State bears the burden of establishing that an exception to the warrant

       requirement is applicable. Id.


[14]   One recognized exception to the warrant requirement is a valid consent to entry

       and search. Id. (citing Krise v. State, 746 N.E.2d 957, 961 (Ind. 2001)).

       Specifically, “[t]he Fourth Amendment recognizes a valid warrantless entry and

       search of premises when police obtain the voluntary consent of an occupant

       who shares, or is reasonably believed to share, authority over the area in

       common with a co-occupant who later objects to the use of evidence so

       obtained.” Georgia v. Randolph, 547 U.S. 103, 106 (2006).


[15]   Howver, the United States Supreme Court created an exception to this rule in

       Randolph and held that “a physically present co-occupant’s stated refusal to

       permit entry prevails, rending the warrantless search unreasonable and invalid

       as to him.” Id.; see also id. at 115 (“Since the co-tenant wishing to open the door

       to a third party has no recognized authority in law or social practice to prevail

       over a present and objecting co-tenant, his disputed invitation, without more,

       gives a police officer no better claim to reasonableness in entering than the

       officer would have in the absence of any consent at all”).

[16]   In this case, Jackson opened the door to the officers to allow them inside the

       residence. However, Hendricks, who also occupied and had authority over the

       home, unquestionably refused to allow Officers Olmos and Thalheimer into his




       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1558 | July 25, 2016   Page 7 of 10
       residence. This is precisely the circumstance that the Supreme Court addressed

       in Randolph.


[17]   The State argues that Randolph does not apply to the circumstances before us

       because Jackson alleged that Hendricks choked her. In support of its argument,

       the State relies on the following discussion in Randolph concerning a law

       enforcement officer’s ability to address allegations of domestic violence.


               No question has been raised, or reasonably could be, about the
               authority of the police to enter a dwelling to protect a resident
               from domestic violence; so long as they have good reason to
               believe such a threat exists, it would be silly to suggest that the
               police would commit a tort by entering, say, to give a
               complaining tenant the opportunity to collect belongings and get
               out safely, or to determine whether violence (or threat of
               violence) has just occurred or is about to (or soon will) occur,
               however much a spouse or other co-tenant objected. . . . Thus,
               the question whether the police might lawfully enter over
               objection in order to provide any protection that might be
               reasonable is easily answered yes.


       547 U.S. at 118.


[18]   Importantly, Jackson was not in the home when Hendricks refused to allow the

       officers to enter. When she returned to the house, she remained outside until

       she unlocked the door for the officers, and she did not appear to be injured.1 Tr.

       pp. 34, 49; see also Appellant’s App. p. 16 (stating that the arresting officer did



       1
        Jackson was uncooperative with the arresting officer and refused to answer his question concerning whether
       her neck hurt. Also, Hendricks was not charged with domestic battery.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1558 | July 25, 2016           Page 8 of 10
       not observe any visible injures to Jackson’s neck). The officers were available

       and able to provide protection and assistance to Jackson if needed. Importantly,

       the officers did not enter a home to assist Jackson or to investigate an ongoing

       threat but entered the home intending to arrest Hendricks without an arrest

       warrant. Tr. pp. 39.


[19]   We conclude, under these unique circumstances, that the exception established

       in Randolph applies, and the officers could enter the residence only if both

       Jackson and Hendricks consented to the officers’ entry. We must therefore

       consider whether the officers’ entry was valid under the exigent circumstances

       exception to the warrant requirement. See Harper v. State, 3 N.E.3d 1080, 1083

       (Ind. Ct. App. 2014) (stating “[t]he warrantless arrest of a person in his or her

       home requires both probable cause and exigent circumstances . . . that make it

       impracticable to obtain a warrant first”) (citations omitted).

[20]   Jackson was not inside the home when the officers arrived, and the officers did

       not need to enter the home to protect her. The officers had no other information

       that some other person inside the home, either an adult or child, was in need of

       police assistance. The officers simply had no reason to enter the home without a

       warrant. Moreover, Officer Olmos or Thalheimer could have, at a minimum,

       requested an arrest warrant either by telephone or radio and waited outside

       Hendricks’ residence until the warrant was issued. See Harper, 3 N.E.3d at 1084

       n.5 (citing Ind. Code § 35-33-5-8).




       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1558 | July 25, 2016   Page 9 of 10
[21]   For all of these reasons, we conclude that Officers Olmos and Thalheimer acted

       unlawfully when they entered Hendricks’ home to arrest him. See Harper, 3

       N.E.3d at 1085 (reversing Harper’s resisting law enforcement conviction

       because the officers were not engaged in the law execution of their duties after

       unlawfully entering her residence); Adkisson v. State, 728 N.E.2d 175, 178 (Ind.

       Ct. App. 2000) (concluding that “[b]ecause the arrest was not initiated in a

       public place and because no exigent circumstances existed, Deputy Spencer

       acted unlawfully when he forcibly entered Adkisson’s residence to arrest her”

       for battery); see also Cupello, 27 N.E.3d at 1131-32. Because the State failed to

       prove that the officers were lawfully engaged in the lawful execution of their

       duties at the time they arrested Hendricks, the evidence is insufficient to support

       Hendricks’ resisting law enforcement convictions.2


[22]   Reversed and remanded for proceedings consistent with this opinion.


       Vaidik, C.J., and Barnes, J., concur.




       2
         Because we reverse Hendricks’ convictions, we do not address his claim that merging the convictions for
       the purposes of sentencing failed to rectify a double jeopardy violation.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1510-CR-1558 | July 25, 2016           Page 10 of 10
