MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                                Nov 25 2015, 6:24 am
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                                   ATTORNEYS FOR APPELLEE
Donald C. Swanson, Jr.                                   Gregory F. Zoeller
Deputy Public Defender                                   Attorney General of Indiana
Fort Wayne, Indiana
                                                         Jesse R. Drum
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Cody A. German,                                          November 25, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         02A03-1506-CR-739
                                                         Appeal from the Allen Superior
        v.                                               Court.
                                                         The Honorable Wendy W. Davis,
State of Indiana,                                        Judge.
                                                         Cause No. 02D04-1408-F6-127
Appellee-Plaintiff.




Friedlander, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-739 | November 25, 2015       Page 1 of 9
                                                                                                    1
[1]   Cody A. German was convicted after a bench trial of residential entry as a

      Level 6 felony and was sentenced for the offense. He appeals contending that

      there is insufficient evidence to rebut his defense of duress and that his sentence

      is both illegal and inappropriate. We affirm in part, reverse in part and remand.


[2]   German was born in 1985 and by the age of fourteen had started using

      methamphetamine on a daily basis. He first used ecstasy when he was fifteen

      years old. By the age of sixteen, German was using marijuana daily, used

      cocaine on the weekends, and had tried acid. In 2004, German was convicted

      of minor in consumption and his suspended sentence was revoked in 2005. He

      was convicted of operating while intoxicated, resisting law enforcement, and

      intimidation in 2005. By 2006, his probation for the sentence imposed for his

      intimidation conviction was revoked. When German was either twenty-three

      or twenty-four years old, he tried mushrooms, and first tried synthetic

      marijuana at the age of twenty-five. In 2011, he was convicted of arson. While

      incarcerated for that offense, German used synthetic marijuana daily until his

      release.


[3]   German was released to probation on January 18, 2014. Upon his release from

      incarceration, he moved into the Fair Oak Motel. Approximately two weeks

      prior to the incident in question, German telephoned police officers to come to

      his room when he found a mouse there. German suspected that someone had



      1
       Ind. Code § 35-43-2-1.5 (West, Westlaw, current with all 2015 First Regular Session of the 119th General
      Assembly legislation.).

      Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-739 | November 25, 2015           Page 2 of 9
      put the mouse in the room as a symbolic reference to his service as a jailhouse

      informant, sometimes known as a rat.


[4]   On August 13, 2014, between 9:00 p.m. and 11:00 p.m., German left the motel

      to go for a walk. He thought he heard a car drive by and occupants of the car

      exit, saying “there he is.” Tr. p. 49. German ran to Sandra Reed’s house and

      banged on the door. Reed testified that German told her that “somebody was

      trying to kill him” and that “he was real agitated.” Id. at 9. Reed slammed the

      door shut, called 911, and yelled to get her husband’s attention. She looked

      outside to see where German went next, and in the course of doing so, did not

      observe anyone chasing German.


[5]   Reed’s neighbor, Dawn Osterman, was watching television with her husband,

      Glenn, and her daughter when she heard the back door, which was unlocked,

      open. German locked the door behind him and “yelled, call the police.

      Someone’s trying to kill me.” Id. at 17. German also told Dawn that he was a

      CI, or confidential informant. German testified that he told them he was a

      confidential informant even though he had not been one, because he “knew

      that entering the house would be a crime” and that he was trying to comfort the

      Ostermans. Id. at 60. Glenn grabbed his handgun and ordered German to the

      floor of the kitchen until the police arrived. Both Glenn and Dawn testified that

      they did not know German and they had not invited him into their home that

      evening.




      Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-739 | November 25, 2015   Page 3 of 9
[6]   Fort Wayne Police Department Officer Timothy Bobay arrived at the

      Ostermans’ home within minutes and found German lying on the kitchen floor.

      Officer Bobay arrested German and searched him. During the search, German

      spat persistently. Officer Bobay asked German why he was doing so. German

      replied that “he had taken what he thought was ice, but it was glue”. Id. at 35.

      This statement did not make any sense to the officer, who was familiar with

      street language for illegal drugs. German also stated that he was a confidential

      informant and that people he was unable to name were trying to kill him. He

      told the officer that he had sold his soul to the devil and that he was going to

      hell. Officer Bobay, who had eight years of experience as an undercover officer

      in the narcotics division, stated that based upon his experience, German’s

      behavior was consistent with one who was under the influence of illegal drugs.


[7]   In response to the charge brought against him, German based his defense on

      insanity and duress. At trial, the parties stipulated to the admission of the

      reports of two licensed clinical psychologists who had evaluated German’s

      sanity and his competency to stand trial. Dr. Stephen Ross’s report concluded

      that there were two explanations for German’s sanity at the time of the offense.

      First, his mental status could have been compromised due to the voluntary

      ingestion of a mind altering substance such as meth. The other explanation was

      that his mental status was compromised due to a paranoid disorder that was

      enhanced by not having a prescription for psychiatric medications. Dr. David

      Lombard concluded that German exhibited behavior consistent with

      schizophrenia with paranoia, bipolar disorder, and methamphetamine abuse


      Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-739 | November 25, 2015   Page 4 of 9
       disorder. He further concluded that German’s paranoia at the time of the

       offense influenced both his decision making and his actions because he believed

       he was trying to protect his life from harm.


[8]    The trial court observed that voluntary intoxication is not a defense to the crime

       and rejected German’s insanity defense because German knew that it was

       wrong to enter the house. The trial court also rejected German’s duress

       defense, concluding that the evidence must be evaluated in light of what a

       reasonable person would think as opposed to a person who had ingested

       methamphetamine.


                                                         1.


[9]    German claims that the State presented insufficient evidence to rebut his

       defense of duress making it necessary to reverse his conviction of residential

       entry. When reviewing a claim that the State has failed to present sufficient

       evidence to rebut a defense, the same standard applies as with other challenges

       to the sufficiency of the evidence. Gallagher v. State, 925 N.E.2d 350, 353 (Ind.

       2010). We will affirm the conviction if the probative evidence and reasonable

       inferences drawn from that evidence could have allowed a reasonable trier of

       fact to find the defendant guilty beyond a reasonable doubt. Id.


[10]   Here, German challenges the sufficiency of the State’s evidence to rebut his

       claim of duress. Indiana Code section 35-41-3-8(a) (West, Westlaw current

       with all 2015 First Regular Session of the 119th General Assembly legislation.),

       provides in relevant part that it “is a defense that the person who engaged in the

       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-739 | November 25, 2015   Page 5 of 9
       prohibited conduct was compelled to do so by threat of imminent serious bodily

       injury to himself or another person.” “The compulsion that will excuse a

       criminal act must be clear and conclusive.” Murrell v. State, 960 N.E.2d 854,

       857 (Ind. Ct. App. 2012). Furthermore, that compulsion must arise without the

       negligence or fault of the defendant claiming such defense. Id. The alternative

       with which the defendant is faced must be instant and imminent. Id.

       Additionally, per the language of the statute, “Compulsion under this section

       exists only if the force, threat, or circumstances are such as would render a

       person of reasonable firmness incapable of resisting the pressure.” Ind. Code §

       35-41-3-8 (1977).


[11]   In order to establish that German committed residential entry as a Level 6

       felony, the State was required to prove beyond a reasonable doubt that German

       knowingly or intentionally broke and entered the dwelling of Dawn and Glenn

       Osterman. Ind. Code § 35-43-2-1.5 (2013). Breaking may be established by

       evidence from which a trier of fact could infer that the slightest force was used

       to gain entry, including evidence of opening an unlocked door. McKinney v.

       State, 653 N.E.2d 115, 117 (Ind. Ct. App. 1995). Here, German, Dawn, and

       Glenn each testified that German opened two unlocked doors, entered the

       Ostermans’ house, and locked the door behind him. German further testified

       that he knew he would be committing a crime by entering the house, and

       offered a false story to the Ostermans in an effort to comfort them. The

       Ostermans did not know German and did not invite him into their home. The

       evidence was sufficient to establish that German committed residential entry.


       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-739 | November 25, 2015   Page 6 of 9
[12]   In defense of his actions, German stated that he believed that others were trying

       to kill him because he had acted as a jailhouse informant. The trial court

       correctly observed that a reasonable person standard should be used when

       evaluating the claim of compulsion under duress. Ind. Code § 35-41-3-8(a)

       (1977). Applying that standard here, the evidence presented at trial established

       that Reed, Dawn, and Glenn did not see anyone chasing German. When

       Officer Bobay arrived, the group of people gathered were people from the

       neighborhood and were not gang members. Although German stated that he

       had been chased by the occupants of the car he heard, he could not name or

       identify those individuals. Furthermore, Officer Bobay testified that German’s

       behavior was consistent with that of a person who had ingested illegal drugs.

       The reports of clinical psychologists who had examined German prior to trial

       concluded that German’s behavior was likely the result of the ingestion of mind

       altering drugs such as methamphetamine causing psychotic behavior.


[13]   The State sufficiently rebutted German’s defense of duress. Assuming for the

       sake of argument that German was being chased by someone, the threat

       involved had long dissipated by the time he entered the Ostermans’ house. No

       one saw suspicious activity in the neighborhood or anyone chasing German.

       Reed and the Ostermans had called 911. German did not establish that he

       committed residential entry because of a threat that was instant and imminent.

       The trial court did not err by rejecting the defense and finding that the State had

       presented sufficient evidence to support the conviction.


                                                         2.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-739 | November 25, 2015   Page 7 of 9
[14]   German also claims that his sentence is both illegal and inappropriate. The

       State concedes that the judgment of conviction and abstract of judgment reflect

       that the trial court sentenced German to a sentence of four years for residential

       entry, a period that exceeds the statutory maximum for that offense. See Ind.

       Code Ann. § 35-50-2-7 (West, Westlaw current with all 2015 First Regular

       Session of the 119th General Assembly legislation.) (fixed term of between six

       months and two and one half years with the advisory sentence being one year).


[15]   The judgment of conviction and abstract of judgment also contradict the trial

       court’s oral sentencing statement. We observe that in the oral sentencing

       statement the trial court addressed the sentences to be imposed for both the new

       conviction and probation revocation. The trial court indicated that the sentence

       to be imposed for the residential entry conviction was a period of two years.

       The trial court further stated that the previously suspended four-year sentence

       would be ordered to be served executed as German’s probation was revoked.

       We remand this matter to the trial court to correct the abstract of judgment and

       judgment of conviction for the residential entry conviction, which also

       erroneously indicates that the sentence for the residential entry conviction was

       imposed after a guilty plea.


[16]   Because we are remanding this matter to the trial court to enter a sentence that

       does not exceed the statutory maximum, we do not address whether German’s

       sentence was inappropriate in light of the nature of the offense and the

       character of the offender.



       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-739 | November 25, 2015   Page 8 of 9
[17]   Judgment affirmed in part, reversed in part and remanded.


       Kirsch, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1506-CR-739 | November 25, 2015   Page 9 of 9
