      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D), this                         Jan 28 2015, 6:21 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
      Glen E. Koch II                                           Gregory F. Zoeller
      Boren, Oliver & Coffey, LLP                               Attorney General of Indiana
      Martinsville, Indiana
                                                                Eric P. Babbs
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Aaron J. Taylor,                                         January 28, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               55A01-1312-CR-524
              v.
                                                               Appeal from the Morgan Superior
      State of Indiana,                                        Court
                                                               The Honorable Christopher
      Appellee-Plaintiff.
                                                               Burnham, Judge
                                                               Cause No. 55D02-1109-FB-1157




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a jury trial, Aaron Taylor was convicted of two counts of criminal

      confinement, both Class B felonies; two counts of intimidation, both Class C
      Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015     Page 1 of 14
      felonies; criminal recklessness, a Class D felony; and pointing a firearm, a Class

      D felony. Taylor raises the following issues for our review: 1) whether the trial

      court abused its discretion in excluding certain evidence offered to establish a

      citizen’s arrest defense; and 2) whether there was sufficient evidence to support

      one of his convictions of intimidation. Concluding the trial court did not abuse

      its discretion in excluding evidence and that there was sufficient evidence of

      intimidation, we affirm.



                             Facts and Procedural History                                 1




[2]   Taylor hired an attorney and filed bankruptcy in August 2011. Morgan County

      Rural Water (“Water Company”) was named as a creditor. Shortly thereafter,

      Taylor received a letter from Glen Miller, the Water Company’s manager,

      demanding that Taylor make an adequate assurance payment as a condition to

      keeping his water turned on. Taylor contacted his attorney, and he advised

      Taylor that a membership fee, which Taylor had already paid the Water

      Company and which had been applied towards his delinquency, was a

      sufficient adequate assurance payment. Although the Water Company

      disagreed, neither party brought the dispute to the attention of the bankruptcy

      court.




      1
        We held oral argument in this case on October 20, 2014, in Indianapolis, Indiana, and would like to thank
      the attorneys for their excellent arguments.

      Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015          Page 2 of 14
[3]   The Water Company had an easement and right-of-way that provided the

      Water Company the right to “place, construct, install and lay, and thereafter

      use, operate, inspect, repair, maintain, replace and remove water pipes and

      lines, meters and meter enclosures, valves and related structures in, under,

      through, upon, over and across” the land on which Taylor’s home sits. Exhibit

      1. Pursuant to a water user’s agreement, the Water Company also retained

      ownership of the water meter and had “the exclusive right to use the cut-off

      valve and to turn it on and off.” Exhibit 2. It also stated that “a failure to pay

      water charges shall result in the . . . termination of water services . . . .” Id.

      Users agreed “to maintain free and unobstructed access between the meter pit

      and the road or street.” Id. Taylor signed the water user’s agreement.


[4]   Taylor did not make the entire adequate assurance payment demanded by the

      Water Company. Accordingly, Miller and three other Water Company

      employees went to Taylor’s home to disconnect his water meter on September

      8, 2011. The men did not notify Taylor that they were there, but Taylor had

      parked a large trailer over the water meter pit, so the trailer had to be moved in

      order for the men to access it. Without seeking permission, the men moved the

      trailer and removed the water meter. Taylor’s girlfriend, Rachel Garriott,

      noticed the water shut off and yelled for Taylor. Taylor told Garriott to call the

      police. He then grabbed his shotgun, went into the front yard, and yelled

      “stop.” Transcript at 416. The men did not stop, so Taylor fired his shotgun.

      While the direction of the shot was disputed at trial, the fact that Taylor fired

      his shotgun was not. Garriot said Taylor fired the gun “straight down,” id. at


      Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015   Page 3 of 14
      416, but Miller said the shot struck the ground “in front of us,” id. at 181. The

      men stopped and Taylor stood between them and their vehicles, pointing his

      loaded shotgun towards them. At that time, Miller called the sheriff and one of

      the men began filming the incident with his cell phone. While standing

      between the men and their vehicles, Taylor told Garriott that she better pay the

      bill “before I end up f****** killing one of these guys, especially someone in the

      green shirt,” referring to Miller. Ex. 4 at 7:25-:35. Taylor then told them that

      everyone but Miller could leave. However, because the men still felt

      threatened, they waited for the police to arrive.


[5]   Eventually a police officer arrived and Taylor unloaded and put down his

      shotgun after being ordered twice to do so. Although he did not arrest Taylor

      at the time, the officer wrote a report and reviewed the cell phone video. The

      State charged Taylor with two counts of criminal confinement with a deadly

      weapon, both Class B felonies; criminal recklessness with a deadly weapon, a

      Class D felony; two counts of intimidation-one for threatening Miller with a

      deadly weapon with the intent that Miller engage in conduct against his will

      (Count 4) and one for threatening Miller with a deadly weapon with the intent

      that Miller be placed in fear of retaliation for a prior lawful act (Count 5), both

      Class C felonies; and pointing a firearm, a Class D felony.


[6]   A jury trial was held in October 2013. Before jury selection began, the trial

      court ruled in response to the State’s motion in limine that Taylor would be

      prohibited from raising a citizen’s arrest defense unless and until the evidence

      showed that the men committed a felony. During trial, Taylor sought to

      Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015   Page 4 of 14
      introduce into evidence a section of the Bankruptcy Code and a section of the

      Indiana Administrative Code, which he claimed would support his arguments

      relating to the citizen’s arrest defense. The trial court sustained the State’s

      objections to admission of this evidence, finding it was not relevant. The jury

      was instructed regarding Taylor’s right to use reasonable force in defense of his

      dwelling and curtilage, but it found him guilty on all counts. He now appeals.



                                 Discussion and Decision
                                   I. Exclusion of Evidence
[7]   Taylor believes the trial court abused its discretion when it barred him from

      presenting a citizen’s arrest defense. Specifically, Taylor argues that the court

      erred by excluding evidence of 11 U.S.C. section 366 (“Bankruptcy Statute”)

      and 170 Indiana Administrative Code 6-1-1 et seq. (“Utility Regulation”),

      which he argues would have shown that the men committed a felony by

      removing the water meter and moving his trailer. Thus, he argues the excluded

      evidence was relevant to the citizen’s arrest defense.


[8]   We review the trial court’s decision to exclude evidence for an abuse of

      discretion. Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014). “An

      abuse of discretion occurs where the trial court’s decision is clearly against the

      logic and effect of the facts and circumstances presented.” Id.


[9]   The right to “a meaningful opportunity to present a complete defense” is

      guaranteed by the United States Constitution. Crane v. Kentucky, 476 U.S. 683,

      Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015   Page 5 of 14
       690 (1986). When relevant evidence that is central to the defendant’s case is

       excluded, this right is abridged. Allen v. State, 813 N.E.2d 349, 361 (Ind. Ct.

       App. 2004), trans. denied. “Relevant evidence means evidence having any

       tendency to make the existence of any fact that is of consequence to the

       determination of the action more probable or less probable than it would be

       without the evidence.” Ind. Evidence Rule 401 (2013).


[10]   The trial court found the Bankruptcy Statute, which governs utility service

       during bankruptcy proceedings,2 and the Utility Regulation, which provides

       procedures and notice requirements for water utility companies, 3 to be

       irrelevant to Taylor’s citizen’s arrest defense and excluded them. Taylor claims

       he was denied a meaningful opportunity to present his defense. The citizen’s

       arrest defense is authorized by Indiana statute. It states:

                A person other than a law enforcement officer is justified in using
                reasonable force against another person to effect an arrest or prevent
                the other person’s escape if:
                (1) a felony has been committed; and
                (2) there is probable cause to believe the other person committed that



       2
         A “utility may . . . discontinue service if neither the trustee nor the debtor, within 20 days after the date of
       the order for relief, furnishes adequate assurance of payment, in the form of a deposit or other security, for
       service after such date. On request of a party in interest and after notice and a hearing, the court may order
       reasonable modification of the amount of the deposit or other security necessary to provide adequate
       assurance of payment.” 11 U.S.C. § 366(b).
       An “assurance of payment” can be a cash deposit, a prepayment of utility consumption, or another form of
       security agreed upon by the parties. 11 U.S.C. § 366(c)(1)(A)(i), (v), (vi).
       3
         Specifically, “service to any residential customer shall not be disconnected for a violation of any rule or
       regulation of a utility or for the nonpayment of a bill, except after seven (7) days prior written notice to the
       customer” stating in part the date of proposed disconnection. 170 Ind. Admin. Code 6-1-16(e) (2014).
       “Immediately preceding the actual disconnection of service, the employee of the utility” shall identify himself
       and announce the purpose of his presence. 170 I.A.C. 6-1-16(f).

       Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015                 Page 6 of 14
                felony.
                However, such a person is not justified in using deadly force unless
                that force is justified under [Ind. Code § 35-41-3-2].[4]


       Ind. Code § 35-41-3-3(a) (emphasis added).


[11]   Taylor contends the excluded evidence was relevant for showing the Water

       Company employees committed a felony, entitling him to present the citizen’s

       arrest defense. Specifically, he claims that because the removal of the water

       meter was in contravention of the Bankruptcy Statute and the Utility

       Regulation, the men committed theft and criminal mischief. However, our

       review of the record shows that neither the Bankruptcy Statute nor the Utility

       Regulation established the commission of either felony.


[12]   Taylor contends the men committed theft by unlawfully taking Taylor’s access

       to water. Theft occurs when “[a] person . . . knowingly or intentionally exerts

       unauthorized control over property of another person, with intent to deprive the

       other person of any part of its value or use . . . .” Ind. Code § 35-43-4-2(a)

       (emphasis added). Here, the Water Company had an easement and right-of-

       way that provided it access to the water meter. Additionally, Taylor signed a

       water user’s agreement which provided that the Water Company retained

       ownership of the water meter and had “the exclusive right to use the cut-off




       4
         In relevant part, Indiana Code section 35-41-3-2 states, “[a] person: is justified in using reasonable force,
       including deadly force, against any other person . . . [and] does not have a duty to retreat . . . if the person
       reasonably believes that the force is necessary to prevent or terminate the other person’s unlawful entry of or
       attack on the person’s dwelling, curtilage, or occupied motor vehicle.” Ind. Code § 35-41-3-2(d).

       Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015              Page 7 of 14
       valve and to turn it on and off.” Exhibit 2. The agreement also stated that “a

       failure to pay water charges shall result in the . . . termination of water services

       . . . .” Id. Taylor did not make the entire payment demanded by the Water

       Company—a condition which authorized the Water Company to terminate

       Taylor’s water services under the water user’s agreement. Accordingly,

       whether the termination of his water service was appropriate is a matter of

       contract law, not criminal law. See Jamrosz v. Resource Benefits, Inc., 839 N.E.2d

       746, 759 (Ind. Ct. App. 2005) (stating that the criminal conversion statute does

       not criminalize bona fide contract disputes), trans. denied. Neither the

       Bankruptcy Statute nor the Utility Regulation prove a theft occurred under

       these circumstances.


[13]   Taylor also argues the men committed criminal mischief by moving the trailer

       that was parked over the water meter pit. Criminal mischief occurs when “[a]

       person . . . recklessly, knowingly, or intentionally damages or defaces property

       of another person without the other person’s consent . . . .” Ind. Code § 35-43-

       1-2(a). It is a felony if “the damage causes a substantial interruption or

       impairment of utility service rendered to the public.” Ind. Code § 35-43-1-

       2(a)(2)(B). Taylor fails to acknowledge that he agreed “to maintain free and

       unobstructed access between the meter pit and the road or street.” Exhibit 2.

       The men moved the trailer because Taylor did not maintain free and

       unobstructed access to the meter pit. Taylor also has shown no evidence that

       his trailer was damaged in the process or that the alleged damage caused an

       interruption in water service rendered to the public. To the extent that the


       Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015   Page 8 of 14
       excluded evidence would have proven a violation under bankruptcy law or

       Indiana administrative law, the violation would have been of a civil, rather than

       criminal, nature. The excluded evidence was irrelevant to proving criminal

       mischief for the purposes of Taylor’s citizen’s arrest defense.


[14]   Even if we assumed the men committed a felony, the citizen’s arrest defense

       would still not save Taylor’s actions due to his use of unlawful deadly force. 5

       When available, the citizen’s arrest defense justifies a person’s use of reasonable

       force against another person. Ind. Code § 35-41-3-3(a). This statute only

       permits the use of deadly force as provided in Indiana Code section 35-41-3-2.

       Deadly force is “force that creates a substantial risk of serious bodily injury.”

       Ind. Code § 35-31.5-2-85. Taylor argued the defense of property under Indiana

       Code section 35-41-3-2 at trial, but the jury was not persuaded.


[15]   The record shows that Taylor knew he was delinquent on his water bill. He

       discussed this with his attorney and even tried to prevent the Water Company

       from turning his water off by parking a trailer over the meter pit. When

       Taylor’s water was shut off, he knew why, and he knew who was on his

       property. He could not have reasonably believed deadly force was necessary.

       Despite that knowledge, Taylor grabbed his shotgun and fired off a shot in his




       5
         The dissent believes Taylor should have been allowed to introduce the Bankruptcy Statute and Utility
       Regulation because he had a right to try to show he was permitted to defend his property by effecting a
       citizen’s arrest at gunpoint. Yet, the dissent also acknowledges that he likely would have been unsuccessful
       given that his self-defense claim was rejected by the jury. We do not discount a person’s right to defend his
       property, but as stated herein, there are limits to that right. A person is not entitled in every circumstance to
       use deadly force in defending himself or another person, let alone his property.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015                Page 9 of 14
       front yard. Taylor then held the four men at gunpoint with the loaded shotgun

       even though they were leaving his yard. His actions constitute the unlawful use

       of deadly force. See Nantz v. State, 740 N.E.2d 1276, 1280-81 (Ind. Ct. App.

       2001) (pointing a loaded firearm at man’s head created a substantial risk of

       serious bodily injury and was an unreasonable use of force in defense of

       property), trans. denied; see also Upp v. State, 473 N.E.2d 1030, 1032 (Ind. Ct.

       App. 1985) (firing gun close to man created a substantial risk of bodily injury

       because bullet could have ricocheted). Because “deadly force may never be

       used by a non-law enforcement officer to effect the arrest or prevent the escape

       of a felon[,]” Rose v. State, 431 N.E.2d 521, 523 (Ind. Ct. App. 1982), the trial

       court did not abuse its discretion in excluding evidence pertaining to Taylor’s

       citizen’s arrest defense.6


                                     II. Sufficiency of Evidence
[16]   Taylor also challenges his conviction of Count 4, intimidation. 7 He argues that

       there was insufficient evidence for the jury to find that he threatened Miller




       6
         Taylor also claims on appeal that the excluded evidence was relevant to his defense to Count 5,
       intimidation, which requires a person to be placed in fear of retaliation for a prior lawful act. See Ind. Code §
       35-45-2-1(a)(2). Although Taylor explained to the trial court that the evidence was relevant for showing that
       the actions of the men were unlawful, our review of the transcript shows that these arguments were made—
       and the objections were ruled on—in the context of his claims of self-defense and citizen’s arrest defense.
       Taylor did not specifically argue that the excluded evidence was relevant to his charge of intimidation at trial,
       and therefore, it is forfeited on appeal. See Taylor v. State, 710 N.E.2d 921, 923 (Ind. 1999) (A defendant “is
       limited to the specific grounds argued to the trial court and cannot assert new bases for admissibility for the
       first time on appeal.”).
       7
        We note that Taylor states there was insufficient evidence for his intimidation conviction under Count 5.
       See Appellant’s Brief at 13. However, the substance of his argument addresses his intimidation conviction
       under Count 4. Thus, we address the sufficiency of the evidence supporting a conviction of Count 4.

       Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015             Page 10 of 14
       with the intent that Miller engage in conduct against his will. See Ind. Code §

       35-45-2-1(a)(1) (2011).


[17]   “In reviewing claims of insufficient evidence, we consider only the evidence

       supporting the verdict and any reasonable inferences to be drawn therefrom.”

       VanMatre v. State, 714 N.E.2d 655, 657 (Ind. Ct. App. 1999). We will neither

       reweigh the evidence nor judge the credibility of the witnesses. Id. at 657-58.

       The conviction will be affirmed if there is probative evidence from which a

       reasonable jury could have found the defendant guilty beyond a reasonable

       doubt. Hyppolite v. State, 774 N.E.2d 584, 598 (Ind. Ct. App. 2002), trans.

       denied.


[18]   Under Count 4, the State had to prove that Taylor threatened Miller with the

       intent that Miller engage in conduct against his will. See Ind. Code § 35-45-2-

       1(a)(1); Appellant’s Appendix at 23. “Threat means an expression, by words or

       action, of an intention to: (1) unlawfully injure the person threatened or another

       person . . . [or] (2) unlawfully subject a person to physical confinement or

       restraint . . . .” Ind. Code § 35-45-2-1(d) (quotation marks omitted).


[19]   Our review of the record shows that the men were leaving when Taylor walked

       into the front yard, told the men to stop, and fired his shotgun. The men

       stopped once Taylor fired his shotgun, and Taylor then stood between them

       and their vehicles, holding them at gunpoint with a loaded shotgun. Taylor’s

       actions alone constituted a threat, and the men were prevented from leaving.

       Thus, they were held against their will. Taylor then told Garriott that she better


       Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015   Page 11 of 14
       pay the bill “before I end up f****** killing one of these guys, especially

       someone in the green shirt.” Ex. 4 at 7:25-:35. He said this while holding

       Miller—who was wearing a green shirt—at gunpoint. Taylor’s words and

       actions expressed an intention to injure Miller in order to hold him there

       against his will. There was sufficient evidence for the jury to find Taylor guilty

       of intimidation beyond a reasonable doubt.



                                               Conclusion
[20]   The trial court did not abuse its discretion in excluding evidence of bankruptcy

       law or Indiana administrative law, and there was sufficient evidence for the jury

       to find Taylor guilty of intimidation. Taylor’s convictions are affirmed.


[21]   Affirmed.


       Kirsch, J., concurs.
       Baker, J., dissents with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015   Page 12 of 14
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Aaron J. Taylor,                                        January 28, 2015

       Appellant-Defendant,                                    Court of Appeals Cause No.
                                                               55A01-1312-CR-524
               v.
                                                               Appeal from the Morgan Superior
       State of Indiana,                                       Court
                                                               The Honorable Christopher
       Appellee-Plaintiff.
                                                               Burnham, Judge
                                                               Cause No. 55D02-1109-FB-1157




       Baker, Judge, dissenting.

[22]   I respectfully dissent. The constitutional right to have one’s day in court and, in

       a criminal context, to present a complete defense, is sacrosanct. I believe that in

       this case, Taylor was denied that right. He has consistently tried to argue that

       he sincerely believed that he was defending his property. And in this State,

       under certain circumstances, he is permitted to do so—even at gunpoint. In my

       opinion, Taylor has the right to try to show that those circumstances were

       present in this case.


[23]   I believe that it is especially absurd that the evidence excluded by the trial court

       in this case consisted of a federal statute and a section of the Indiana

       Administrative Code. To say that a criminal defendant is not permitted to

       introduce the law into evidence as part of his defense goes, in my opinion,



       Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015   Page 13 of 14
       several steps too far. Both of these pieces of legislation are relevant to Taylor’s

       defense and to the case as a whole.


[24]   We are quick to say—and rightly so—that citizens are charged with the

       knowledge of the law, whether or not they have actual knowledge to that effect.

       See, e.g., Kirk v. State, 256 Ind. 480, 484, 269 N.E.2d 751, 754 (Ind. 1971)

       (affirming conviction in part because defendant “was charged with the

       knowledge of the content of the statute”); Zakrasek v. State, 197 Ind. 249, 249, 50

       N.E. 615, 615 (Ind. 1926) (holding that “[a]ll persons are charged with

       knowledge of the criminal laws which define crimes”). In this case, Taylor both

       knows and seeks to apply the content of potentially relevant statutes. To hold

       that he has no right to do so seems to be particularly unfair given that we would

       pretend he had knowledge of the laws under which he was convicted even if he

       did not.


[25]   Whether Taylor’s claims would ultimately succeed is beside the point (and

       indeed, given that the jury was not persuaded by Taylor’s self-defense claim, it

       seems unlikely that the citizen’s arrest defense would have been any more

       successful). Instead, I believe that the focus should be on Taylor’s fundamental

       right to present a full and complete defense. He was denied that right in this

       case. Therefore, I would reverse his convictions and remand the case for a new

       trial, at which Taylor would be afforded the right to present a full defense, to

       include both self-defense and a citizen’s arrest defense.




       Court of Appeals of Indiana | Memorandum Decision 55A01-1312-CR-524 | January 28, 2015   Page 14 of 14
