                                                                             FILED
                                                                         Mar 28 2018, 5:26 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Stacy R. Uliana                                           Curtis T. Hill, Jr.
      Bargersville, Indiana                                     Attorney General of Indiana

                                                                Larry D. Allen
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Christapher Batchelor,                                    March 28, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                11A01-1707-CR-1574
              v.                                                Appeal from the Clay Circuit
                                                                Court
      State of Indiana,                                         The Honorable Joseph Trout,
      Appellee-Plaintiff.                                       Judge
                                                                Trial Court Cause No.
                                                                11C01-1512-F6-890



      Barnes, Judge.


                                              Case Summary
[1]   Christapher Batchelor appeals his convictions for Level 5 felony battery on a

      law enforcement officer, Level 6 felony resisting law enforcement, and Class A



      Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018                  Page 1 of 15
      misdemeanor resisting law enforcement. We affirm in part, reverse in part, and

      remand.


                                                           Issue
[2]   The sole issue is whether the trial court committed fundamental error by giving

      the jury an instruction regarding the definition of “flee” for purposes of resisting

      law enforcement.


                                                           Facts
[3]   At about 8:30 p.m. on December 14, 2015, Clay County Deputy Sheriff James

      Switzer was driving his marked cruiser and saw that Batchelor was driving his

      truck without wearing a seatbelt. As Deputy Switzer pulled behind Batchelor at

      a four-way stop in Brazil, he saw Batchelor reach over and put on his seat belt,

      then signal and turn left. Deputy Switzer activated his lights to initiate a traffic

      stop, but Batchelor continued driving for one minute and thirty-eight seconds;

      Deputy Switzer did not immediately activate his siren but did so later at some

      point.1 There was a well-lighted gas station at the intersection where Deputy

      Switzer first activated his lights. Deputy Switzer then followed Batchelor

      through residential areas, passing a number of street lights and side streets.

      Batchelor encountered two stop signs while being followed by Deputy Switzer,

      at which he made complete stops. Batchelor was traveling approximately

      thirty-five miles per hour in a twenty-five miles per hour zone; Deputy Switzer



      1
          There is a dash cam video of the incident from Deputy Switzer’s cruiser, but it lacks audio.


      Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018                          Page 2 of 15
      described Batchelor’s speed as not excessive and “more or less appropriate . . .

      .” Tr. Vol. III p. 7. Finally, after Deputy Switzer had activated his LED

      spotlight and shined it on Batchelor’s mirrors, Batchelor pulled over into a

      gravel parking area on the side of the road.


[4]   Batchelor started to get out of his truck as Deputy Switzer got out of his cruiser.

      Deputy Switzer ordered Batchelor to get on the ground and he complied.

      Deputy Switzer intended to arrest Batchelor for resisting law enforcement.

      However, Batchelor resisted Deputy Switzer’s attempt to handcuff him. Two

      other officers then arrived on the scene as backup. Batchelor continued

      struggling with Deputy Switzer and the other two officers. During the struggle,

      Batchelor kicked Deputy Switzer in the chest, throwing him into Batchelor’s

      truck. Batchelor could not be subdued and arrested until two more backup

      officers arrived on the scene. Because of this altercation, Deputy Switzer

      injured his ankle and had to miss three months of work recovering. One of the

      back-up officers jammed his finger during the altercation, and another sustained

      a black eye.


[5]   The State charged Batchelor with Level 6 felony resisting law enforcement for

      fleeing from Deputy Switzer, one count of Level 6 felony battery on a police

      officer for kicking and injuring Deputy Switzer, and two counts of Class A

      misdemeanor resisting law enforcement with respect to Batchelor’s resisting

      arrest by two of the back-up officers. The State later combined the two Class A

      misdemeanor charges into one charge. Batchelor did not testify or present

      evidence during his jury trial. During closing statements, Batchelor’s attorney

      Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 3 of 15
      argued that he did not flee Deputy Switzer in light of there not being a high-

      speed chase, the fact that it was nighttime and raining, and that the gravel

      parking area where he stopped was “a good and safe place to pull over . . . .”

      Id. at 109.2


[6]   The State requested and the trial court gave the following instruction:


               A person who fails to stop his vehicle promptly “flees” law
               enforcement when the person attempts to escape from law
               enforcement or attempts to unnecessarily prolong the time before
               the person must stop. It is an issue in this case whether the
               Defendant attempted to escape or unnecessarily prolonged the
               time before stopping. The burden is on the State to prove beyond
               a reasonable doubt that:


               (1)      The defendant acted with the intent to escape, or


               (2)   A reasonable driver in the Defendant’s position would not
               have felt unsafe under the facts of this case to come to an
               immediate halt, or


               (3)  That if a reasonable driver in the Defendant’s position
               would have felt unsafe to come to an immediate halt, the driver
               would have come to a halt sooner.




      2
        Counsel did not specify the “safety” issue here; rather than a concern for Batchelor’s personal safety, it
      could have been a reference to his not having to pull over on the side of the street and possibly obstruct
      traffic.

      Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018                            Page 4 of 15
      App. Vol. III p. 71. Batchelor did not object to this instruction. The jury found

      Batchelor guilty as charged on all counts, and the trial court entered judgments

      of conviction and sentenced him accordingly. Batchelor now appeals.


                                                     Analysis
[7]   Batchelor contends the trial court erroneously instructed the jury regarding the

      “fleeing” element of resisting law enforcement.3 We review a trial court’s

      decision to give or refuse a jury instruction for an abuse of discretion.

      Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). We must consider: “‘(1)

      whether the instruction correctly states the law; (2) whether there is evidence in

      the record to support the giving of the instruction; and (3) whether the

      substance of the tendered instruction is covered by other instructions which are

      given.’” Id. (quoting Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002)).

      Before a conviction may be reversed based on instructional error, the defendant

      must affirmatively show that the error prejudiced his or her substantial rights.

      Vaughn v. State, 13 N.E.3d 873, 886 (Ind. Ct. App. 2014), trans. denied.


[8]   Because Batchelor did not object to the instruction at issue, his claim is waived,

      and he must demonstrate the existence of fundamental error before we may

      reverse. See Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). Fundamental

      error is that which constitutes a substantial blatant violation of basic principles




      3
        Although Batchelor challenges all three of his convictions on appeal, he does not explain how this alleged
      instructional error would impact his convictions for Level 5 felony battery on a police officer or Class A
      misdemeanor resisting law enforcement.

      Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018                         Page 5 of 15
       resulting in a denial of a defendant’s fundamental due process rights. Id. The

       fundamental error exception to the general rule requiring a contemporaneous

       objection is narrow, applicable only in egregious circumstances that made a fair

       trial impossible. Id.


[9]    Indiana Code Section 35-44.1-3-1 provides that it is a Level 6 felony resisting

       law enforcement for a person to use a vehicle to “knowingly or intentionally . . .

       flee[] from a law enforcement officer after the officer has, by visible or audible

       means, including operation of the law enforcement officer’s siren or emergency

       lights, identified himself or herself and ordered the person to stop . . . .” The

       key issue in this case with respect to the Level 6 felony resisting charge was

       whether Batchelor “knowingly or intentionally” fled from Deputy Switzer

       when he waited one minute and thirty-eight seconds to pull over after Deputy

       Switzer first activated his emergency lights. At trial, Batchelor emphasized the

       lack of any evidence that he drove unsafely or at an excessive rate of speed

       before pulling over, while the State emphasized the absence of any apparent

       safety reason for Batchelor not to have pulled over sooner. Batchelor did not

       testify at trial.


[10]   There is no statutory definition of the word “flee” in the Indiana Code. In

       Cowans v. State, 53 N.E.3d 540 (Ind. Ct. App. 2016), this court attempted to

       provide some guidance on that issue, in light of the fact that drivers may

       sometimes delay pulling over for law enforcement out of concern for their

       personal safety. In Cowans, the defendant did not pull over for six minutes, or

       three miles, after an officer first activated his lights. The defendant did not

       Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 6 of 15
       speed but also passed by several well-lit areas before stopping. The defendant, a

       black man, testified at trial that he did not stop immediately because of news

       reports he had seen of police officers having violent encounters with unarmed

       black men during traffic stops and because of news reports advising citizens to

       drive to a safe place before pulling over.


[11]   The defendant was convicted of resisting law enforcement by fleeing in a

       vehicle. On appeal, the defendant sought reversal because the trial court denied

       his request to instruct the jury on the defense of “mistake of fact”; he claimed

       his belief that he could continue driving until he found what he believed to be a

       safe place stop was a “mistake of fact.” This court held that the trial court

       properly refused that instruction, agreeing with the State that this purported

       defense would at best be a “mistake of law,” not a “mistake of fact.” Cowans,

       53 N.E.3d at 543. Thus, Cowans’s conviction was affirmed.


[12]   In dicta, this court went on to “address some of the underlying issues of this

       case, which are likely to reoccur for other citizens of Indiana. Cowans is far

       from alone in his belief that motorists are allowed to drive to a safe location

       after being ordered to stop by flashing police lights.” Id. The Cowans panel

       found no express support for this belief in the Indiana Code. It also noted that

       in Woodward v. State, 770 N.E.2d 897 (Ind. Ct. App. 2002), trans. denied, this

       court held there was sufficient evidence to sustain a conviction for resisting law

       enforcement by fleeing where the defendant claimed he was looking for a well-

       lit place to pull over but there was evidence he passed several well-lit areas

       before pulling over. The Woodward opinion stated, “we cannot say that a

       Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 7 of 15
       person who has admitted to knowing that a police officer wishes to effectuate a

       traffic stop can, without adequate justification, choose the location of the stop.”

       Woodward, 770 N.E.2d at 902.


[13]   Focusing on the phrase “without adequate justification” in the Woodward

       opinion, the Cowans panel stated “that a person with an ‘adequate justification’

       might have some discretion to choose the location of a stop. Clearly, it cannot

       be the case that a driver must slam his brakes and come to an immediate stop or

       else face felony prosecution.” Cowans, 53 N.E.3d at 544. The panel noted that

       in a case involving resisting law enforcement by running away on foot, flight

       “‘in this context should be understood to mean a knowing attempt to escape

       law enforcement when the defendant is aware that a law enforcement officer

       has ordered him to stop or remain in place once there.’” Id. at 545 (quoting

       Wellman v. State, 703 N.E.2d 1061, 1063 (Ind. Ct. App. 1998)). It also reiterated

       our supreme court’s general definition of flight as evidence of consciousness of

       guilt, which is “‘a conscious, overt act, known and accepted to be a response to

       a consciousness of guilt in a person and a means of preventing apprehension

       and punishment.’” Id. (quoting Hoskins v. State, 441 N.E.2d 419, 427 (Ind.

       1982)).


[14]   The opinion also recounted a Black’s definition of “flee from justice” as

       meaning, “‘Removing one’s self from or secreting one’s self within jurisdiction

       wherein offense was committed to avoid arrest; or concealing one’s self therein,

       with intent, in either case, to avoid arrest, detention, or punishment for some

       criminal offense.’” Id. (quoting BLACK’S LAW DICTIONARY 639 (6th ed. 1990)).

       Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 8 of 15
       We observe that a more recent edition of Black’s defines “flee” as, “To run

       away; to hasten off . . . . To run away or escape from danger, pursuit, or

       unpleasantness; to try to evade a problem . . . . To vanish; to cease to be visible

       . . . . To abandon or forsake . . . .” BLACK’S LAW DICTIONARY 756 (10th ed.

       2014).


[15]   Based on these varying definitions of “flee” or “flight,” the Cowans opinion

       stated, “a person who drives to a location of greater safety for her or the officer,

       intending only to be in a location of greater safety, is not ‘fleeing’ from the

       police.” Cowans, 53 N.E.3d at 545. Ultimately, the opinion stated,


                We believe that a defendant charged with resisting law
                enforcement by fleeing by vehicle would be entitled, if he so
                requested, to have a jury instruction regarding the definition of
                the word “flee.” This word is an element of the crime that the
                State is required to prove beyond a reasonable doubt. The
                definition would explain that a person who is attempting to
                escape police, or attempting to unnecessarily prolong the time
                before he is stopped, would be fleeing. The definition should also
                explain, however, that if a reasonable driver in the defendant’s
                position would have felt unsafe to come to an immediate halt,
                and if the defendant took reasonable steps to increase the safety
                of the stop without unnecessarily prolonging the process, then the
                defendant was not fleeing. In short, the jury instruction would
                put the question of whether the driver had an “adequate
                justification” squarely before the factfinder.


       Id. at 545-46.


[16]   The challenged jury instruction in this case largely paralleled this language from

       Cowans. However, the first thing to note is that Cowans expressly predicated the

       Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 9 of 15
       giving of such an instruction upon the defendant’s requesting it; here, the State

       requested it. On that basis alone, it was erroneous for the trial court to give the

       instruction where Batchelor did not request it.


[17]   The question, then, is whether the instruction was fundamentally erroneous.

       We conclude that it was in at least one clear respect. In Hall v. State, 937

       N.E.2d 911 (Ind. Ct. App. 2010), we addressed whether it was fundamentally

       erroneous to instruct the jury in a habitual traffic violator (“HTV”) case that the

       State had to prove the defendant “knew or should have known that his driving

       privileges were suspended.” We noted that this statement of the mens rea was

       inaccurate because the HTV statute required proof that the defendant knew of

       the suspension, not merely that he or she should have known. Hall, 937 N.E.2d

       at 912-13 (citing I.C. § 9-30-10-16(a)(1)). We also held that, although the

       defendant did not object to the erroneous instruction, it was fundamental error

       because it allowed the jury to convict based on a lesser mens rea than required

       by the statute. Id. at 913. We recognized that “error in an instruction on mens

       rea does not rise to the level of fundamental error where either the instructions

       as a whole sufficiently inform the jury of the required mens rea or the

       defendant’s mens rea was not a central issue at trial.” Id. However, the trial

       court’s instructions repeating the charging information, which included the

       correct mens rea, and defining the terms “knowingly” and “intentionally” were

       insufficient to cure the erroneous instruction. Id. Moreover, the defendant’s

       mens rea—whether he knew his license was suspended—was the central issue

       at trial. Id.


       Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 10 of 15
[18]   Here, the resisting law enforcement statute clearly requires proof that the

       defendant “knowingly or intentionally” fled. See I.C. § 35-44.1-3-1. The

       challenged instruction, however, allowed the jury to convict Batchelor if the

       State proved that:


               (1)      The defendant acted with the intent to escape, or


               (2)   A reasonable driver in the Defendant’s position would not
               have felt unsafe under the facts of this case to come to an
               immediate halt, or


               (3)  That if a reasonable driver in the Defendant’s position
               would have felt unsafe to come to an immediate halt, the driver
               would have come to a halt sooner.


       App. Vol. III p. 71. Although the first part of the language above correctly

       states the mens rea for resisting law enforcement, parts two and three

       alternatively allowed a conviction based on what a “reasonable driver” would

       have done in Batchelor’s situation. In other words, parts two and three allowed

       a conviction if the State proved, essentially, that Batchelor was negligent.

       Negligence occurs when an actor’s conduct falls below that of a reasonable

       person under like or similar circumstances. Key v. Hamilton, 963 N.E.2d 573,

       579 (Ind. Ct. App. 2012), trans. denied. Negligence is not the correct mens rea

       for resisting law enforcement. This was the same mens rea problem as in Hall.


[19]   We also do not believe the trial court’s general instructions regarding the correct

       intentional or knowing mens rea for resisting law enforcement were sufficient to

       correct the plain error in the instruction that purported to give very detailed
       Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 11 of 15
       guidance on the definition of “fleeing.” The prosecutor’s argument to the jury

       also discussed and relied heavily upon this erroneous language. And, the

       central issue at trial with respect to the resisting law enforcement by fleeing

       charge was whether Batchelor knowingly or intentionally did so. Although

       there is no question Batchelor knew of Deputy Switzer’s wanting to pull him

       over, there also is no evidence that there was a “high-speed chase” here. It was

       for the jury to decide whether such a chase that lasted approximately a minute-

       and-a-half was a knowing or intentional fleeing by Batchelor, not whether it

       was something a “reasonable” person would have done. We conclude that this

       misstatement of the mens rea for a resisting law enforcement conviction was

       sufficient by itself to make the instruction fundamentally erroneous, mandating

       reversal of Batchelor’s conviction for Level 6 felony resisting law enforcement

       by fleeing in a vehicle.


[20]   There are other problems with the instruction; we need not conclusively

       determine whether these are fundamental errors, but we point out these errors

       nonetheless. First, the instruction comes dangerously close to creating an

       unconstitutional mandatory presumption. A jury instruction that tells the jury

       that it must infer a presumed fact if the State proves certain predicate facts is a

       mandatory presumption instruction that relieves the State of its burden of proof

       in proving all the elements of a crime, in violation of the Due Process Clause of

       the United States Constitution. See Brown v. State, 691 N.E.2d 438, 444 (Ind.

       1998) (citing Francis v. Franklin, 471 U.S. 307, 314-15, 105 S. Ct. 1965, 1971-72

       (1985)).


       Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 12 of 15
[21]   Although the instruction here did not expressly tell the jury that it “must” or

       “should” presume that Batchelor was fleeing if the State proved certain

       predicate facts, the use of such words is not always necessary to make an

       instruction an impermissible mandatory presumption instruction. See Higgins v.

       State, 783 N.E.2d 1180, 1185-86 (Ind. Ct. App. 2003), trans. denied. Here, the

       instruction states conclusively that a person “flees . . . when the person attempts

       to escape from law enforcement or attempts to unnecessarily prolong the time

       before the person must stop”; it does not tell the jury that it “may” find fleeing

       in such a case, which would only indicate an acceptable permissive inference.

       See Brown, 691 N.E.2d at 445. The instruction then goes on to provide three

       options for the State to prove fleeing. In doing so, it essentially mandated the

       jury to find that Batchelor fled if it found the predicate fact that he did not have

       an adequate safety reason for stopping sooner. In addition to potentially being

       a mandatory presumption instruction in violation of the United States

       Constitution, it could run afoul of the Indiana Constitution’s requirement that

       the jury be the judge of both the law and the facts in a criminal case. See

       Higgins, 783 N.E.2d at 1186 (citing Ind. Constitution Art. 1, § 19).


[22]   Another difficulty with the instruction given is that it emphasizes certain

       evidence—or rather in this case, unduly emphasizes a lack of evidence—and

       invites the jury to violate its obligation to consider all the evidence. Instructions

       that single out certain portions of the evidence in such a way are improper,

       confusing, and misleading. Marks v. State, 864 N.E.2d 408, 411–12 (Ind. Ct.

       App. 2007) (citing Ludy v. State, 784 N.E.2d 459, 462 (Ind. 2003)). Essentially,


       Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 13 of 15
       the instruction invites the jury to focus solely upon whether Batchelor had a

       personal safety-related reason for his actions, which is a consideration that does

       not appear within the statutory definition of resisting law enforcement. In

       Marks, we disapproved of an instruction that listed seven different factors that

       “can establish impairment” for purposes of operating a vehicle while

       intoxicated. Among other things, we noted that, “[i]n stating that certain

       specific evidence can establish impairment, the instruction leaves jurors to

       wonder whether other evidence . . . cannot be used to establish impairment.”

       Id. at 412. Here, likewise, by emphasizing to the jury that a fleeing would not

       be established if Batchelor had a safety reason for not stopping sooner, it could

       have confused the jury and precluded it from considering whether other

       evidence could have justified his not stopping sooner or established that he was

       not fleeing Deputy Switzer.


[23]   We realize that our reversal of Batchelor’s conviction based on fundamental

       instructional error may create some tension with this court’s opinion in Cowans.

       That opinion dealt with the specific situation of a defendant who claimed not to

       have pulled over sooner out of fear for his personal safety, its discussion

       regarding instructing the jury in a similar case was dicta, and giving its

       recommended jury instruction was incumbent upon the defendant requesting it.

       It should not have been applied in a dissimilar case where the defendant was

       not making such a claim and did not request an instruction on that point. To

       the extent this opinion more generally questions the propriety of the instruction,

       we do not recognize horizontal stare decisis between decisions made by


       Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 14 of 15
       different panels of this court. See In re F.S., 53 N.E.3d 582, 596 (Ind. Ct. App.

       2016).


                                                  Conclusion
[24]   We reverse Batchelor’s conviction for Level 6 felony resisting law enforcement

       by fleeing in a vehicle. Because Batchelor has not presented argument as to

       how this instructional error would impact his convictions for Level 5 felony

       battery on a law enforcement officer and Class A misdemeanor resisting law

       enforcement, those convictions are affirmed. We remand for further

       proceedings, i.e. retrial, if the State so elects.


[25]   Affirmed in part, reversed in part, and remanded.


       Najam, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 11A01-1707-CR-1574 | March 28, 2018   Page 15 of 15
