                                                                        Mar 11 2015, 10:29 am




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Deborah Markisohn                                        Gregory F. Zoeller
      Marion County Public Defender                            Attorney General of Indiana
      Indianapolis, Indiana
                                                               Eric P. Babbs
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      David Cupello,                                           March 11, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1406-CR-394
              v.                                               Appeal from the Marion Superior
                                                               Court

      State of Indiana,                                        The Honorable Amy Jones, Judge
      Appellee-Plaintiff                                       The Honorable David M. Hooper,
                                                               Master Commissioner

                                                               Cause No. 49F08-1401-CM-3589




      Najam, Judge.

[1]   In Barnes v. State, 953 N.E.2d 473, 474-75 (Ind. 2011), our supreme court held

      on rehearing that “the Castle Doctrine is not a defense to the crime of battery or




      Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015                   Page 1 of 25
      other violent acts on a police officer.” 1 In so holding, the Barnes court noted

      that “[t]he General Assembly can and does create statutory defenses to the

      offenses it criminalizes, and the crime of battery against a police officer stands

      on no different ground. What the statutory defenses should be, if any, is in its

      hands.” Id. at 475.


[2]   In its legislative response to Barnes, the General Assembly found and declared

      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.” Ind. Code § 35-41-

      3-2(a) (emphasis supplied).2


[3]   In this case of first impression, David Cupello appeals his conviction, following

      a bench trial, for battery on a law enforcement officer, as a Class A

      misdemeanor. We address two issues presented for our review:


              1. Whether the State presented sufficient evidence that an off-
              duty constable was engaged in the performance of his official
              duties to support Cupello’s conviction.

              2. Whether the State presented sufficient evidence to overcome



      1
        The Castle Doctrine arises out of “the common law rule that ‘a man’s home is his castle,’ which gives him
      the right to reasonably resist unlawful entry.” Barnes, 953 N.E.2d at 474.
      2
        The revisions to Indiana Code Section 35-41-3-2 were drafted by the Barnes v. State Subcommittee of the
      Legislative Council. See Legislative Council Barnes v. State Subcommittee, Ind. Gen. Assembly,
      http://www.in.gov/legislative/interim/committee/lcbs.html (last visited Jan. 28, 2015). The president pro
      tempore of the Senate, Senator David Long, described the amendment, in part, as “reasserting the 150-year-
      old law ensuring the right to defend yourself in your home.” David C. Long, Editorial, Legislature Provides
      Significant Achievements, Indianapolis Star, Mar. 18, 2012, at B9.

      Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015                         Page 2 of 25
              Cupello’s affirmative defense, namely, that he had a statutory
              right to use reasonable force to exclude a law enforcement officer
              who had unlawfully entered his dwelling.


[4]   We first hold that the State presented sufficient evidence that the off-duty

      constable, Robert Webb, was engaged in the performance of his official duties.

      However, we also hold that, under the statute enacted by our legislature in

      response to Barnes, the Castle Doctrine is an affirmative defense to the crime of

      battery on a law enforcement officer when that officer has unlawfully entered

      the person’s dwelling. And we hold that, on the facts of this case, Cupello

      exercised reasonable force under Indiana Code Section 35-41-3-2(i)(2) to

      prevent or terminate an unlawful entry by a public servant into his home. Thus,

      we reverse Cupello’s conviction.


                                  Facts and Procedural History
[5]   On January 23, 2014, Cupello had a telephone conversation with a staff

      member of Emerson Village Apartments (“Emerson Village”) in Indianapolis,

      where he resided, which ended when Cupello hung up on the staff member. In

      order to “find out what the issue was,” Emerson Village dispatched John

      Lloyd, the office manager, and Christopher Amond, a maintenance technician,

      to Cupello’s apartment. Tr. at 6. But, before they arrived, Lloyd and Amond

      encountered Cupello in the second-floor hallway that led to his apartment.

      When Cupello saw Lloyd and Amond, he cursed at them and threatened to call

      the police. In response, Lloyd and Amond left, and Amond called Constable

      Webb, an off-duty Pike Township Constable whom Emerson Village employed


      Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015   Page 3 of 25
      part time as a “courtesy officer.” Id. at 10. As a courtesy officer, Constable

      Webb took calls on the property, resolved any issues reported by the office,

      performed random patrols, and locked the laundry room and pool.


[6]   Amond reported to Constable Webb that Cupello “had been verbally

      intimidating,” id. at 11, and, thus, Constable Webb went to Cupello’s

      apartment to investigate “reports of intimidation,” id. at 13. Constable Webb

      knocked and Cupello opened the door. The record does not disclose whether

      Constable Webb identified himself as a Pike Township Constable or wore his

      Pike Township uniform, but Constable Webb and Cupello had encountered

      each other on a prior occasion.


[7]   When Cupello opened the door, without Cupello’s knowledge or consent,

      Constable Webb placed his foot just inside the threshold of the door, which

      opened inwards toward the interior of the apartment. Although Constable

      Webb did not have a warrant to enter Cupello’s apartment, his standard

      practice is to situate his foot in this way “to make sure [he] can talk to [people]

      and to keep them from slamming the door in [his] face.” Id. at 15. While

      standing at the door, Constable Webb questioned Cupello about the incidents

      with Emerson Village’s staff members, and Cupello complained to Constable

      Webb that Amond had repeatedly harassed him by revving his vehicle’s engine

      whenever he drove past Cupello’s apartment. Cupello stated that he wanted to

      press charges, but Constable Webb explained that Cupello could not do so “for

      just revving your motor.” Id. at 12.



      Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015    Page 4 of 25
[8]   When Constable Webb told Cupello that he could not press charges against

      Amond, Cupello became upset, ended the conversation, and, simultaneously,

      slammed the door to his apartment. Because Constable Webb had placed

      himself inside the threshold, the door struck Constable Webb in his foot,

      shoulder, and head.3 After the first slam of the door, Constable Webb began to

      push back against the door in an effort to free his foot, which was stuck, and

      Cupello continued to attempt to shut his door. In doing so, he slammed it two

      more times in rapid succession and harder than his first effort. The door struck

      Constable Webb both times, but Cupello managed to close it on the third

      attempt. After the second contact with the door, Constable Webb told Cupello

      that he was under arrest for battery on an officer, and, once the door had

      closed, Constable Webb demanded that Cupello open the door so that

      Constable Webb could arrest him.


[9]   When Cupello refused to open the door, Constable Webb called for a backup

      officer and called the Emerson Village office for a key to Cupello’s apartment.

      Then, without a warrant, Constable Webb and the backup officer unlocked

      Cupello’s door with the key, entered his apartment, and arrested him.

      Constable Webb arrested Cupello solely for hitting him with the door.

      Constable Webb did not witness the commission of any other alleged crime.




      3
        On cross-examination, Constable Webb acknowledged that Cupello’s door, which opened inwards, would
      not have struck him had he not crossed the threshold of the apartment.

      Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015                  Page 5 of 25
       That same day, the State charged Cupello with battery on a law enforcement

       officer, as a Class A misdemeanor.


[10]   The trial court held Cupello’s bench trial on May 12, 2014. At trial, Cupello

       argued in defense4 of the charges (1) that Constable Webb was not acting in his

       capacity as a law enforcement officer but, instead, was “acting in his capacity as

       an apartment complex employee, as the courtesy officer responding to an

       apartment issue”; and (2) that the placement of Constable Webb’s foot inside

       the threshold of the door constituted an unlawful entry of his dwelling, and,

       therefore, Cupello had a statutory right to use reasonable force against

       Constable Webb to terminate the entry into his home. Id. at 19. The trial court

       disagreed with Cupello and entered findings that (1) “[Constable Webb] was

       called because of complaints on [Cupello’s] behavior,” id. at 49; and (2) because

       Cupello and Constable Webb had a “consensual encounter” at the threshold of

       the apartment, Cupello “acquiesced in [Constable Webb’s] presence [in] the

       door frame.” Id. at 23, 29, 50. Thus, the court found that Constable Webb had

       acted in his capacity as a law enforcement officer and that Cupello had

       consented to Constable Webb’s entry, which made the entry lawful. The court,

       therefore, convicted Cupello as charged and sentenced him to 365 days in

       Marion County Jail, with 361 days suspended. This appeal ensued.




       4
           Cupello also moved for a directed verdict, which the trial court denied.


       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015        Page 6 of 25
                                       Discussion and Decision
[11]   Cupello alleges two errors. First, he contends that the State presented

       insufficient evidence to support his conviction because it did not prove that

       Constable Webb was “engaged in [his] official duty” but, rather, was engaged

       only in his obligations as a courtesy officer for Emerson Village. I.C. § 35-42-2-

       1(a)(1)(B). Second, Cupello asserts that, even if Constable Webb was engaged

       in his official duties as a law enforcement officer, Indiana Code Section 35-41-3-

       2(i)(2) gave him the right to use reasonable force to prevent or terminate

       Constable Webb’s unlawful entry into his dwelling. We address each argument

       in turn.


                                          Issue One: Official Duties

[12]   Cupello first contends that the State failed to prove that, when he encountered

       Constable Webb at his door, Constable Webb was engaged in the performance

       of his official duties, which is a prerequisite to the crime of battery on a law

       enforcement officer. See I.C. § 35-42-2-1(a)(1)(B). Thus, Cupello argues that

       the State presented insufficient evidence to support his conviction.


[13]   Our standard of review for sufficiency of the evidence claims is well-settled.

       Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).


               In reviewing the sufficiency of the evidence, we examine only the
               probative evidence and reasonable inferences that support the
               verdict. We do not assess witness credibility, nor do we reweigh
               the evidence to determine if it was sufficient to support a
               conviction. Under our appellate system, those roles are reserved
               for the finder of fact. Instead, we consider only the evidence

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015    Page 7 of 25
               most favorable to the trial court ruling and affirm the conviction
               unless no reasonable fact-finder could find the elements of the
               crime proven beyond a reasonable doubt.


       Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct. App. 2013) (citations omitted)

       (internal quotation marks omitted).


[14]   Further, Indiana Code Section 35-42-2-1 states:

               (a) A person who knowingly or intentionally touches another
               person in a rude, insolent, or angry manner commits battery, a
               Class B misdemeanor. However, the offense is:

                        (1) a Class A misdemeanor if:

                                                       ***

                                (B) it is committed against a law enforcement
                                officer . . . while the officer is engaged in the
                                execution of the officer’s official duty[.]


[15]   Although a constable is a law enforcement officer, see I.C. § 35-31.5-2-185(a)(1),

       this case is complicated by the fact that, when the incident with Cupello

       occurred, Constable Webb was off-duty, was working in his capacity as a

       courtesy officer for Emerson Village, was responding to a call from Emerson

       Village’s management, and apparently never identified himself, either verbally

       or by appearance, as a law enforcement officer.


[16]   Nevertheless, an off-duty police officer can perform his official duties, even

       when responding to a private call. See Nieto v. State, 499 N.E.2d 280, 281-82

       (Ind. Ct. App. 1986). Indeed, in Tapp v. State, 406 N.E.2d 296, 302 (Ind. Ct.

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015      Page 8 of 25
       App. 1980), we explained that “it is the nature of the acts performed and not

       whether the officer is on or off duty, in or out of uniform, which determines

       whether the officer is engaged in the performance of his official duties.” Thus,

       “when a police officer, whether in uniform or not, takes it upon himself to

       enforce the law in order to maintain peace and order for the benefit of the

       public, the officer is performing official duties as a police officer.” Neito, 499

       N.E.2d at 282. As such, despite the complications noted above, the State

       asserts that Constable Webb acted as an officer, not as a private security agent,

       because he responded to a complaint of intimidation in order “to keep the peace

       and investigate a possibly criminal incident between Cupello and the apartment

       staff.” Appellee’s Br. at 8.


[17]   Although the State is correct that Constable Webb’s actions evince the

       execution of the officer’s official duties, something more is required: a citizen

       who encounters an off-duty law enforcement officer must have an objective

       basis to determine that the officer is acting in his official capacity and not in a

       private capacity. The holdings in Tapp and its progeny demonstrate this

       principle.


[18]   In Tapp, for instance, we upheld Tapp’s conviction for battery on a law

       enforcement officer after Tapp had bitten Weisheit, “a plainclothes security

       guard.” 406 N.E.2d at 297. Weisheit had approached Tapp after he had

       observed her shoplift. In holding that Weisheit was engaged in his official

       duties, we noted that he had “displayed his police badge and announced his



       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015     Page 9 of 25
       status to [her5] and informed her that she was under arrest pursuant to the laws

       of this state.” Id. at 302.


[19]   Likewise, in Nieto we also upheld a conviction for battery on a law enforcement

       officer. There, Officer Fourkiller responded to a private phone call to his home

       from his friend Gomez regarding a domestic dispute between Gomez’s mother

       and Nieto. Fourkiller responded in his personal vehicle and was dressed in

       plain clothes, and Nieto struck him after Fourkiller “advised Nieto to calm

       down and not hit the women anymore.” 499 N.E.d at 281. Although the facts

       do not state that Fourkiller identified himself as an officer, Nieto “knew

       Fourkiller was a police officer” and the reason for the officer’s presence. Id.


[20]   However, in City of Fort Wayne v. Moore, 706 N.E.2d 604 (Ind. Ct. App. 1999), a

       negligent hiring and retention case, we affirmed the trial court’s determination

       that Stanford, an off-duty officer with the City of Fort Wayne, had acted

       outside the scope of his employment with the City. There, Stanford attacked

       Moore, and, during the altercation, Stanford “identified himself as ‘an officer’”

       but “never displayed a badge, did not mention the City of Fort Wayne, did not

       handcuff Moore[,] and never informed Moore that he was under arrest.” Id. at

       605. And Stanford drove “his personal vehicle and was not wearing a police




       5
         Weisheit stated, “I am a City Police Officer and you’re under arrest for shoplifting.” Tapp, 406 N.E.2d at
       297.

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015                         Page 10 of 25
       uniform or any other apparel that might alert a citizen that Stanford was a

       police officer.” Id.


[21]   In other words, it is the State’s burden to prove by objective evidence that a

       citizen who has encountered a law enforcement officer either knew or should

       have known that he was dealing with an officer, a factual predicate that is

       consistent with our law in other contexts. For example, subsection (a)(3) of our

       resisting law enforcement statute requires the State to prove that a person fled

       “after the officer has, by visible or audible means . . . identified himself or

       herself and ordered the person to stop.” I.C. § 35-44.1-3-1(a)(3). And,

       similarly, Indiana Code Section 9-30-2-2 requires an officer who makes an

       arrest or issues an information and summons in connection with the operation

       of a motor vehicle provide indicia to the operator of the vehicle that he is, in

       fact, a law enforcement officer. That provision provides:


               [a] law enforcement officer may not arrest or issue a traffic
               information and summons to a person for a violation of an
               Indiana law regulating the use and operation of a motor vehicle
               on an Indiana highway or an ordinance of a city or town
               regulating the use and operation of a motor vehicle on an Indiana
               highway unless at the time of the arrest the officer is:

                        (1) wearing a distinctive uniform and a badge of authority;
                        or

                        (2) operating a motor vehicle that is clearly marked as a
                        police vehicle;




       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015      Page 11 of 25
                  that will clearly show the officer or the officer’s vehicle to casual
                  observations to be an officer or a police vehicle.[6]


       Id.


[22]   Thus, where the State seeks to prove that an off-duty law enforcement officer is

       engaged in the execution of his official duties, it must satisfy a two part test: the

       State must prove by objective evidence that (1) the nature of the acts performed

       demonstrate that the officer sought to enforce the law to maintain peace and

       order for the benefit of the public; and (2) the citizen knew or should have

       known both that the person was an officer and that the officer was acting in his

       official, and not his private, capacity. See, e.g., Tapp 406 N.E.2d at 297, 302;

       Nieto, 499 N.E.2d at 282.


[23]   We now apply this test and hold that, under our highly deferential standard of

       review, the State met its burden here. The evidence most favorable to the trial

       court’s judgment demonstrates that Constable Webb went to Cupello’s

       apartment to respond to a complaint of intimidation, which may have been a

       criminal act pursuant to Indiana Code Section 35-45-2-1. Thus, the State

       proved that Constable Webb took it upon himself to enforce the law in order to

       maintain peace and order.


[24]   Moreover, although the record does not disclose whether Constable Webb wore

       his uniform or otherwise objectively identified himself as a law enforcement



       6
           We also note that Indiana has criminalized false assertions of public authority. See I.C. § 35-44.1-2-6.


       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015                             Page 12 of 25
       officer, the evidence establishes that Cupello and Webb had dealt with one

       another on a prior occasion. And, when Constable Webb confronted Cupello

       on this occasion, Cupello told Constable Webb that he wished to press charges

       against Amond for harassment. A reasonable inference from this evidence is

       that Cupello knew that Constable Webb was both a law enforcement officer

       and acting in his official capacity. The State, therefore, met its burden on the

       second prong as well.


[25]   Thus, we hold that the State presented sufficient evidence to prove that

       Constable Webb was performing his official duties when he confronted

       Cupello. We turn now to the questions of whether Cupello had a statutory

       right to exclude Constable Webb from his home and whether Cupello used

       reasonable force to do so.


                                      Issue Two: The Castle Doctrine

[26]   Cupello contends that, even if Constable Webb was engaged in his official

       duties as a law enforcement officer, Indiana Code Section 35-41-3-2(i)(2) gave

       him the right to use reasonable force to prevent or terminate Constable Webb’s

       unlawful entry into his dwelling. Specifically, Cupello’s claim is that the State

       presented insufficient evidence to rebut his affirmative defense to the State’s

       allegation that he battered a law enforcement officer. We apply the same

       standard of review to such challenges as we do to other challenges to the

       sufficiency of the evidence. Murrell v. State, 960 N.E.2d 854, 857 (Ind. Ct. App.

       2012). “A conviction must be affirmed if the probative evidence and reasonable

       inferences drawn from the evidence could have allowed a reasonable trier of
       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015   Page 13 of 25
       fact to find the defendant guilty beyond a reasonable doubt. We consider only

       the probative evidence and reasonable inferences supporting the judgment.” Id.


[27]   Indiana Code Section 35-41-3-2 provides:

                  (a) 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.[7] 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. . . . The
                  purpose of this section is to provide the citizens of this state with
                  a lawful means of carrying out this policy.

                                                             ***

                  (i) A person is justified in using reasonable force against a public
                  servant if the person reasonably believes the force is necessary to:

                                                             ***

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

                                                             ***

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



       7
           A constable is a public servant. I.C. § 35-31.5-2-195(a)(1).


       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015          Page 14 of 25
                                                         ***

                        (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.


       As stated above, our legislature enacted the relevant provisions of Indiana Code

       Section 35-41-3-2 in response to our supreme court’s opinion on rehearing in

       Barnes. We now apply that statute here.8


[28]   The probative evidence and reasonable inferences supporting the judgment are

       undisputed and lead unerringly to the conclusion that Constable Webb

       unlawfully entered Cupello’s dwelling by placing his foot within the threshold

       of the apartment door without lawful justification. As our supreme court

       explained in Middleton v. State, 714 N.E.2d 1099, 1101 (Ind. 1999):


               For purposes of the Fourth Amendment, . . . the threshold of a
               home is the line that law enforcement officers cannot transgress
               without judicial authorization. . . . [T]he Fourth Amendment
               has drawn a firm line at the entrance to the house. Absent
               exigent circumstances, that threshold may not be reasonably
               crossed without a warrant.



       8
          Both Cupello and the State rely on self-defense cases that predate the amendments to Indiana Code Section
       35-41-3-2. Thus, they dispute whether Cupello “1) acted without fault, 2) . . . was in a place where he had a
       right to be, and 3) . . . was in reasonable fear of death or great bodily harm.” Appellant’s Br. at 14.
       However, the statute itself provides a framework to analyze this case, independent from the elements of the
       case law, which are not enumerated in the statute. Thus, we consider the statute’s requirements alone.

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015                        Page 15 of 25
       And, in Indiana, “any breach of the threshold, however slight, by any part of

       the body” constitutes criminal residential entry. Williams v. State, 873 N.E.2d

       144, 148 (Ind. Ct. App. 2007); see I.C. § 35-43-2-1.5.


[29]   Our jurisprudence regarding resisting law enforcement during an arrest

       performed within the arrestee’s home also sheds light on what it means for an

       officer to unlawfully enter another’s dwelling. See Harper v. State, 3 N.E.3d

       1080, 1085 (Ind. Ct. App. 2014); Adkisson v. State, 728 N.E.2d 175, 178 (Ind. Ct.

       App. 2000).9 In Adkisson, a police officer questioned the defendant about an

       alleged battery. The officer approached her closed door, and, when she

       answered, he

                stood just outside Adkisson’s open doorway while he questioned
                her, and Adkisson remained inside her apartment. . . . At some
                point, Adkisson attempted to shut the door on [the officer], but
                he prevented her from doing so by placing his foot in the
                doorway. [The officer] then informed Adkisson that she was
                being arrested for battery[10] and followed her into the residence.
                As [the officer] entered her apartment, Adkisson pushed him and
                began to run down the hallway. [The officer] followed Adkisson



       9
         The State contends that Harper and Adkisson, both of which deal with resisting law enforcement, should not
       apply here because the resisting law enforcement statute requires that “the officer is lawfully engaged in the
       execution of the officer’s duties,” I.C. § 35-44.1-3-1(a)(1) (emphasis added), while battery on a law
       enforcement officer does not require the “lawful” execution of the officer’s duties, see I.C. § 35-42-2-
       1(a)(1)(B). But, as the State acknowledges, Indiana Code Section 35-41-3-2(i)(2) allows the use of force to
       prevent or terminate an unlawful entry by a public servant into one’s home. One is precluded from the use of
       force if he believes that the officer is lawfully engaged in the execution of his official duty. See I.C. § 35-41-3-
       2(j)(4). We, therefore, find Harper and Adkisson instructive.
       10
          The battery for which the officer arrested Adkisson was reported by her neighbors before the officer went
       to her door and was independent from the closing of her door. See 728 N.E.2d at 176.

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015                               Page 16 of 25
                and sprayed her with mace. Adkisson continued to struggle and
                run from [the officer] until he had maced her three times. Being
                helplessly subdued, [two officers] were able to handcuff her.


       728 N.E.2d at 176-77.


[30]   We reversed Adkisson’s conviction for resisting law enforcement and stated

       that, although the officer “arguably had probable cause to believe that Adkisson

       had committed battery” and, therefore, “the right to arrest her without a

       warrant, . . . absent consent, the Fourth Amendment [nevertheless] requires

       that . . . an officer may only enter a defendant’s home to make the arrest when

       exigent circumstances exist that make it impracticable to obtain a warrant first.”

       Id. at 177. Thus, we held that the officer had acted unlawfully when he entered

       Adkisson’s home, see id. at 178, which meant that the State could not prove an

       essential element of the crime, namely, that “the officer was lawfully engaged in

       the execution of his duties as an officer,” id. at 177.11


[31]   In this court’s recent opinion in Harper, we reached the same conclusion as in

       Adkisson where officers had lied to obtain consent to enter the defendant’s home

       in order to conduct a warrantless arrest. Harper, 3 N.E.3d at 1081. We equated

       the officer’s “use of a ‘ruse’ to enter Harper’s home” with the “Adkisson’s




       11
          The court in Adkisson distinguished its holding from United States v. Santana, 427 U.S. 38, 40 (1976), which
       upheld a warrantless arrest that began in a public space when the police shouted “police” but was completed
       within the defendant’s home after he retreated indoors. 728 N.E.2d at 177-78. The situation here is also
       unlike Santana. Constable Webb testified that he had arrested Cupello solely for battering him and that he
       had not observed Cupello commit any other alleged crime.

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015                          Page 17 of 25
       deputy’s decision to place his foot in Adkisson’s doorway to prevent her from

       closing her door.” Id. at 1085.


[32]   Here, as in Adkisson and Harper, Constable Webb did not have a warrant to

       enter Cupello’s apartment, nor does any exception to the warrant requirement

       apply. And while the officers in Adkisson and Harper had probable cause to

       conduct a warrantless arrest, here, Constable Webb lacked probable cause to

       invade Cupello’s residence in the first instance.12 Constable Webb had no

       lawful justification for breaching the threshold of Cupello’s apartment, and, in

       so doing, he was not lawfully engaged in the execution of his duties as an

       officer. See Adkisson, 728 N.E.2d at 177.


[33]   Thus, as a matter of law, Cupello was entitled to use reasonable force to

       terminate Constable Webb’s unlawful entry and to prevent further entry by

       Constable Webb into his home. See I.C. § 35-41-3-2(i)(2) To prevent entry into

       his home, Cupello used reasonable force when he closed the door. Given that

       Constable Webb had inserted his foot to prevent the door from closing,

       Cupello’s natural response was to persist in attempting to close the door, and,

       while several tries were required, his conduct to thwart the unlawful entry was

       not disproportionate to the entry itself.




       12
          But even if Constable Webb had probable cause to arrest Cupello, which he clearly did not, the State has
       not shown exigent circumstances that would have made it impracticable for Constable Webb to first obtain
       an arrest warrant. Indeed, Constable Webb had time both to call for backup and to obtain a key to Cupello’s
       apartment.

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015                       Page 18 of 25
[34]   Given the undisputed evidence, the State attempts, as it did at trial, to negate

       Cupello’s affirmative defense by arguing that the evidence supports an inference

       that Cupello consented to Constable Webb’s entry into his home. Despite the

       fact that Cupello testified that he did not give Constable Webb permission to

       enter his home, the trial court accepted the State’s argument, finding that

       Cupello acquiesced in Constable Webb’s entry by having a conversation with

       Constable Webb at the threshold of his apartment. But we reject the notion that

       a conversation held at the threshold of one’s home is, in itself, an invitation for

       a law enforcement officer to enter the home. To the contrary, as our supreme

       court has succinctly stated:

               Opening the door to ascertain the purpose of an interruption to
               the private enjoyment of the home is not an invitation to enter,
               but rather is a common courtesy of civilized society. Attendant
               to this courtesy is the ability to exclude those who are knocking
               and preserve the integrity of the physical boundaries of the home.


       Cox v. State, 696 N.E.2d 853, 858 (Ind. 1998). Had Cupello wished to invite

       Constable Webb into his home, he would have made that invitation explicit,

       and Constable Webb would not have needed to place his foot in the threshold

       surreptitiously. The conversation at the door provided neither consent nor

       acquiescence to Constable Webb’s entry.


[35]   Nevertheless, the State argues that, under Indiana Code Section 35-41-3-2(j)(4),

       Cupello lacked justification to use force because he had a reasonable belief that

       Constable Webb was acting lawfully or engaged in the lawful execution of his

       duties. But we have already established that Constable Webb acted unlawfully

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015   Page 19 of 25
       when he breached the threshold of Cupello’s dwelling. See, e.g., Adkisson, 728

       N.E.2d at 177 (holding that the unlawful entry into a private dwelling is not a

       lawful execution of an officer’s duties). Therefore, we reject the State’s

       argument.


[36]   Finally, the State argues that, because Cupello did not know Constable Webb

       had placed his foot inside Cupello’s apartment, Cupello could not have had a

       reasonable belief that force was necessary to prevent or terminate Constable

       Webb’s entry. We cannot agree. Cupello merely attempted to end the

       conversation with Constable Webb by closing the door. However, when he

       tried to close the door, he discovered that Constable Webb had obstructed the

       path of the door with his foot and that the door would not close. At this point,

       Constable Webb’s foot became stuck, and he began to resist the door. Thus,

       Cupello began to struggle against Constable Webb, and Cupello slammed the

       door two more times, harder than in his first attempt. In other words, Cupello

       discovered Constable Webb’s unlawful entry when he first attempted to close

       the door and, after two more attempts, was able to terminate the unlawful entry

       into his dwelling. Constable Webb had entered Cupello’s apartment without

       consent, probable cause, reasonable suspicion, or exigent circumstances.

       Because Constable Webb resisted Cupello’s subsequent attempts to close the

       door, Cupello had a reasonable belief that force was necessary to terminate

       Constable Webb’s unlawful entry into his apartment.


[37]   We hold, therefore, that the State presented insufficient evidence to rebut

       Cupello’s affirmative defense. Again, the probative evidence is undisputed.

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015   Page 20 of 25
       The placement of Constable Webb’s foot inside the threshold of the apartment

       door was an unlawful entry by a public servant into Cupello’s dwelling, and

       Cupello exercised his statutory right under Indiana Code Section 35-41-3-

       2(i)(2)—which reaffirmed that the Castle Doctrine is an affirmative defense to

       the crime of battery on a law enforcement officer—to use reasonable force both

       to terminate that entry and to prevent further access to his home. Cupello used

       reasonable force by closing his door. Thus, as a matter of law, the facts do not

       support a conviction for battery on a law enforcement officer.


[38]   Reversed.


       Bradford, J., concurs.


       Mathias, J., concurs with separate opinion.




       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015   Page 21 of 25
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       David Cupello,
       Appellant-Defendant,

               v.                                               Court of Appeals Case No.
                                                                49A02-1406-CR-394
       State of Indiana,
       Appellee-Plaintiff




       Mathias, Judge, concurring

[39]   I fully concur in the majority’s holding that Cupello exercised reasonable force

       under Indiana Code section 35-41-3-2(i)(2) to prevent or terminate Constable

       Webb’s unlawful entry into Cupello’s home.


[40]   I find it especially disturbing that Constable Webb freely admitted that it was

       his “standard practice” to place his foot just inside the threshold of the door

       when talking to someone, to “to keep them from slamming the door in [his]

       face.” Tr. p. 15. As the majority notes, without a warrant, this is an

       unconstitutional entry into the home, see Middleton, 714 N.E.2d at 1101, and

       arguably criminal residential entry, see Williams, 873 N.E.2d at 148, I.C. § 35-

       43-2-1.5. However rude it might be to do so, a private citizen has a right to



       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015              Page 22 of 25
       close his or her door on any unwelcome visitor, including a police officer,

       unless the officer has a warrant.


[41]   I also concur with the majority’s conclusion that, under the particular facts and

       circumstances of this case, the trial court, as the trier of fact, could reasonably

       conclude that Constable Webb was engaged in the execution of his official

       duties.


[42]   However, despite my concurrence with this conclusion, I would note that

       confrontations such as the one that occurred in this case—where a citizen

       encounters an off-duty law enforcement officer working in the private sector but

       acting in his official capacity—are fraught with ambiguity and room for

       misunderstanding. See generally Patricia Kubovsak Golla, Annotation,

       Performance of Public Duty by Off–Duty Police Officer Acting as Private Security

       Guard, 65 A.L.R.5th 623 (1999).


[43]   For the benefit of both law enforcement officers and citizens, the General

       Assembly should consider clarifying what easily visible and audible indicia are

       required to place a citizen on notice that he is dealing with an off-duty law

       enforcement officer who is, nevertheless, acting in his official, and not his

       private, capacity, as the legislature has already done in Indiana Code section

       35-44.1-3-1(a)(3) (resisting law enforcement officers) and section 9-30-2-2 (when

       a law enforcement officer may make a traffic stop and issue citations). Such

       indicia might include wearing a standardized vest or uniform and/or displaying

       a badge and audibly notifying the citizen of his public authority.


       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015     Page 23 of 25
[44]   Likewise, the General Assembly should consider the clearly intended and

       confusing appearance of private security personnel dressed in uniforms of the

       same color, and with identification patches that are the nearly the same, as

       those worn by sworn officers, as it has done with its strict limitation of blue and

       red emergency lighting on private vehicles. See Ind. Code § 9-21-7-10 (providing

       that a person in a non-emergency vehicle may not operate a vehicle with a lamp

       that displays a red, red and white, or red and blue signal). One need only drive

       in downtown Indianapolis during the afternoon rush hour to witness such

       private security personnel routinely stopping traffic with the legal right of way

       on busy public streets and highways for the benefit of private parking facility

       owners. These persons do this without any apparent statutory authority, 13 and

       perhaps even commit an infraction when they do so.14


[45]   Without such careful consideration and differentiation by the General

       Assembly, Hoosiers have a right to wonder precisely who has been invested

       with the public authority to regulate civil society, and to resent the instances




       13
          As I noted in Key v. Hamilton, 963 N.E.2d 573, 588 (Ind. Ct. App. 2012), trans. denied, drivers are required
       to obey only the signals of certain, authorized persons, i.e., a police officer directing traffic and a flagman in a
       construction zone. See Ind. Code § 9-21-8-56 (“It is unlawful for a person to knowingly fail to comply with a
       lawful order or direction of a law enforcement officer invested by law with authority to direct, control, or
       regulate traffic”); Ind. Code § 9-21-8-56 (making it a criminal offense to “recklessly fail[ ] to obey a traffic
       control device or flagman ... in the immediate vicinity of a highway work zone when workers are present[.]”).
       I am unaware of any similar statutory authority concerning private security guards.
       14
          See Ind. Code § 9-21-17-5 (“A pedestrian may not suddenly leave a curb or other place of safety and walk
       or run into the path of a vehicle that is so close as to constitute an immediate hazard.”); Ind. Code § 9-21-17-
       24 (“A person who violates this chapter commits a Class C infraction.”).

       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015                              Page 24 of 25
       where government has apparently delegated public authority to private security

       for purely private purposes and gains.


[46]   Subject to these additional public policy concerns, I fully concur in the

       majority’s decision.




       Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015   Page 25 of 25
