MEMORANDUM DECISION
                                                                        FILED
Pursuant to Ind. Appellate Rule 65(D),                             Jul 13 2016, 9:09 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                               CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
court except for the purpose of establishing                             and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lamont Escoe,                                            July 13, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1510-CR-1628
        v.                                               Appeal from the Marion County
                                                         Superior Court
State of Indiana,                                        The Honorable Stanley Kroh,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49F15-1404-FD-017604



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1628 | July 13, 2016        Page 1 of 10
                                              Case Summary
[1]   Lamont Escoe (“Escoe”) appeals his convictions of Battery1 and Resisting Law

      Enforcement2 as Class A misdemeanors. On appeal, Escoe claims that the State

      failed to present sufficient evidence to prove:


                 (1) Whether police officers entered Escoe’s dwelling unlawfully;


                 (2) Whether police officers used unlawful force in their restraint of Escoe;


                 (3) Whether Escoe resisted law enforcement with force.


      We affirm.



                                Facts and Procedural History
[2]   On April 4, 2014, Anna Pfau (“Pfau”), a Department of Child Services

      (“DCS”) caseworker, visited Escoe and his family to look into a report of

      potential neglect of the three Escoe children. (Tr. at 36-37) When she knocked

      on the door, Elizabeth Escoe (“Elizabeth”), Escoe’s wife, narrowly opened the

      door. (Tr. at 37) While Pfau identified herself, she was able to see and smell

      the apartment, noting the trash that covered the floor and a strong, unpleasant

      odor. (Tr. at 38) Elizabeth asked Pfau to wait outside for five minutes, and in




      1
       Ind. Code § 35-42-2-1(a)(1)(B). We refer at all times to the versions of the statutes in effect at the time of
      Escoe’s offenses.
      2
          Ind. Code § 35-44.1-3-1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1628 | July 13, 2016                  Page 2 of 10
      that time, Pfau called the police to assist with a child welfare check due to the

      state of the apartment. (Tr. at 39)


[3]   Elizabeth returned shortly thereafter and told Pfau that Elizabeth would prefer

      doing the check another day, claiming she needed to take the children to a

      doctor’s appointment. (Tr. at 40) Pfau informed Elizabeth that Pfau needed to

      do a child welfare check because of conditions in the apartment, and that the

      police were coming to assist her. (Tr. at 39) Escoe came to the door and told

      Pfau to “do what [she] had to do.” (Tr. at 39) Pfau went down the stairs of the

      apartment to wait for the police to arrive. (Tr. at 41)


[4]   Approximately five minutes later, Pfau observed the Escoes carrying their

      children to their car. (Tr. at 41) Pfau ran after them to try and talk them out of

      leaving. (Tr. at 43) At that time, Officer Jose Navarro (“Officer Navarro”) had

      arrived on scene and began to engage the Escoes. (Tr. at 42) Officer Navarro

      observed the Escoes were very agitated, and advised them to speak with Pfau

      about the DCS report. (Tr. at 92) After several minutes of talking, during

      which the Escoes asserted their Constitutional rights were being violated, the

      Escoes escorted Pfau, Officer Navarro, and Officer Jacob Tranchant (“Officer

      Tranchant”), who had recently arrived on scene, to their apartment. (Tr. at 94)


[5]   Both Officers Navarro and Tranchant entered the home briefly before making

      the decision to stand outside while Pfau conducted her business with the

      Escoes. (Tr. at 98) Escoe pulled out chairs and offered them to the officers,

      which the officers declined. (Tr. at 186) The officers left the door cracked to


      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1628 | July 13, 2016   Page 3 of 10
      ensure the safety of Pfau. (Tr. at 139) During the course of the DCS

      investigation, Escoe turned to the officers and stated, “You’re not gonna take

      my kids, you’re gonna have to fight.” (Tr. at 139)


[6]   After a while, Pfau stepped out to consult with her supervisor. When she

      returned, Pfau informed the officers that she and her supervisor had decided to

      remove the children. (Tr. at 140) Officers Navarro and Tranchant decided to

      call for a supervisor due to Escoe’s threats. (Tr. at 140) Once Pfau had

      informed the Escoes of her decision, she, Elizabeth, and Officer Navarro went

      back to gather clothes for the children. (Tr. at 103) During this time, Sergeant

      Chad Osborne (“Sergeant Osborne”) arrived on scene, and Officer Tranchant

      informed him of the situation. (Tr. at 156) Sergeant Osborne entered the

      apartment and observed that Escoe was greatly agitated. (Tr. at 157)


[7]   Sergeant Osborne began to talk to Escoe, who then jumped off the couch and

      began pacing with clenched fists. (Tr. at 157) Sergeant Osborne decided to

      handcuff Escoe for the safety of all in the apartment. (Tr. at 158) Both

      Sergeant Osborne and Officer Tranchant attempted to grab an arm of Escoe in

      order to handcuff him, at which point Escoe spun around and struck Officer

      Tranchant in the shoulder, causing Officer Tranchant pain. (Tr. at 142-143)


[8]   Following the battery, Officer Tranchant then locked Escoe in a bear hug to

      keep him from striking again. (Tr. at 143) Escoe stepped on the couch and

      pushed off from it, bringing Officer Tranchant and him to the ground. (Tr. at

      143) Officer Navarro, Sergeant Osborne, and Officer Chris Morgan (“Officer


      Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1628 | July 13, 2016   Page 4 of 10
       Morgan”), who had recently arrived on scene, began to deliver knee and hand

       strikes to Escoe in order to stop him from struggling against Officer Tranchant.

       Their attempts, however, did not end the struggle. In response, Officers

       Navarro and Morgan delivered a “drive stun” to Escoe’s lower back with their

       tasers, after which Escoe complied with the orders to stop resisting and allowed

       himself to be handcuffed. (Tr. at 146) On April 8, 2014, he was charged with

       one count of Battery as a Class D felony3, one count of Resisting Law

       Enforcement as a Class D felony4, and one count of Resisting Law Enforcement

       as a Class A misdemeanor.


[9]    At trial, Escoe presented the affirmative defense to the Battery charge under the

       “castle doctrine,” which gives a defendant a statutory right to use reasonable

       force to protect his person and property against unlawful force and to end

       unlawful entry of public servants. The court instructed the jury on the defense.


[10]   At the conclusion of the jury trial on August 5, 2015, Escoe was found guilty of

       Battery, as a Class D felony, and one count of Resisting Law Enforcement, as a

       Class A misdemeanor. He was acquitted of the Class D felony Resisting Law

       Enforcement charge. On September 16, 2015, the trial court reduced the Class

       D felony to a Class A misdemeanor because Escoe was a first-time offender,




       3
           I.C. § 35-42-2-1(a)(2)(A). This offense is now a Level 5 felony under I.C. § 35-42-2-1(f)(5)(A).
       4
           I.C. § 35-44.1-3-1(b)(1)(B). This offense is now a Level 5 felony.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1628 | July 13, 2016                   Page 5 of 10
       and entered a sentence of 365 days on each count, with 361 days suspended, to

       be served concurrently. This appeal followed.



                                       Standard of Review
[11]   When reviewing a claim of insufficient evidence, we consider only the

       probative evidence and reasonable inferences supporting the judgment, and we

       will not reweigh the evidence or the credibility of witnesses. Sargent v. State, 875

       N.E.2d 762, 767 (Ind. Ct. App. 2007). We will affirm a conviction if all

       probative evidence and reasonable inferences allowed a reasonable trier of fact

       to find the defendant guilty beyond a reasonable doubt. Murrell v. State, 960

       N.E.2d 854, 857 (Ind. Ct. App. 2012). When reviewing a claim of insufficiency

       to rebut an affirmative defense, we use the same standard. Id.



                     Battery and the Castle Doctrine Defense
[12]   The Indiana Code provides:

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


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


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

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1628 | July 13, 2016   Page 6 of 10
                        (3) Prevent or terminate the public servant’s unlawful
                            trespass on or criminal interference with property
                            lawfully in the person’s possession, lawfully in
                            possession of the member of the person’s immediate
                            family, or belonging to a person whose property the
                            person has authority to protect.


       I.C. § 35-41-3-2(i). We determined that this statute provides “an

       affirmative defense to the crime of battery on a law enforcement officer

       when that officer has unlawfully entered the person’s dwelling.” Cupello

       v. State, 27 N.E.3d 1122, 1124 (Ind. Ct. App. 2015).


[13]   Escoe does not dispute that he committed the battery against Officer Tranchant.

       Rather, he claims that the police officers entered his home unlawfully and used

       unlawful force when they attempted to handcuff him. Thus, under this statute,

       Escoe asserts that the State failed to provide sufficient evidence to rebut this

       defense. As we have previously noted, our review focuses on the evidence most

       favorable to the judgment.


[14]   The evidence before us reveals that Escoe invited the officers into his home.

       Both Officers Navarro and Tranchant testified that they did not intimidate or

       threaten Escoe in order to get him to let them into the home. (Tr. at 94, 137)

       Officer Navarro also testified that the Escoes were free to leave when he first

       approached them, and they chose not to do so. (Tr. at 115) Pfau provided

       similar testimony. (Tr. at 44-45) Furthermore, Escoe set out chairs for the

       officers when they first entered the apartment. (Tr. at 186-187) From this


       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1628 | July 13, 2016   Page 7 of 10
       evidence, a reasonable fact-finder could conclude that Escoe consented to the

       entry of the officers to his home.


[15]   Next, we look to whether Officer Tranchant and Sergeant Osborne used lawful

       force in their initial attempt to handcuff Escoe. Indiana law charges police

       departments with, among other things, the duty to “preserve peace.” I.C. § 36-

       8-3-10(a)(1). Police officers are thereby expected not only to enforce criminal

       laws, but also to aid those in distress, abate hazards, prevent potential hazards

       from materializing, and perform myriad other tasks to maintain the safety of the

       communities. Fair v. State, 627 N.E.2d 427, 431 (Ind. 1993). In the present

       case, Escoe was pacing with clenched fists and making threats to fight the

       police officers. (Tr. at 102) Sergeant Osborne testified that in similar situations,

       where a person was acting as Escoe was, he had always handcuffed the person

       even when they were not under arrest. (Tr. at 158) Looking at the evidence

       most favorable to the judgment, a reasonable finder of fact could conclude that

       the police acted with lawful force.


[16]   Thus, there was sufficient evidence to overcome Escoe’s affirmative defense

       beyond a reasonable doubt. Any argument to the contrary is simply an

       invitation for us to reweigh the evidence, a task we will not do.



                               Resisting Law Enforcement
[17]   Under Ind. Code § 35-44.1-3-1, a person commits this offense when he

       “knowingly or intentionally: (1) forcibly resists, obstructs or interferes with a


       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1628 | July 13, 2016   Page 8 of 10
       law enforcement officer or a person assisting the officer while the officer is

       lawfully engaged in the execution of the officer’s duties.” I.C. § 35-44.1-3-

       1(a)(1). A person forcefully resists law enforcement when “strong, powerful,

       violent means are used to evade a law enforcement official’s rightful exercise of

       his or her duties.” Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). We have

       affirmed convictions for resisting law enforcement where a defendant pulled

       away when an officer attempted to handcuff him, Lopez v. State, 926 N.E.2d.

       1090 (Ind. Ct. App. 2010), trans. denied; where a defendant was flailing or

       squirming her body while an officer was trying to handcuff her, J.S. v. State, 843

       N.E.2d 1013 (Ind. Ct. App. 2006), trans. denied; and where a defendant

       “stiffened up” when police attempted to place him in a police vehicle, Johnson v.

       State, 833 N.E.2d 516 (Ind. Ct. App. 2005). “The element may be satisfied with

       even a modest exertion of strength, power, or violence.” Walker v. State, 998

       N.E.2d 724, 727 (Ind. 2013).


[18]   Escoe argues that the State did not present sufficient evidence to prove the

       “force” element beyond a reasonable doubt. Officers Navarro and Tranchant

       and Sergeant Osborne all testified that once Officer Tranchant had attempted to

       restrain Escoe, Escoe fell on top of Officer Tranchant. (Tr. at 107, 143, 158)

       Furthermore, both Officer Tranchant and Sergeant Osborne stated that Escoe

       caused this fall by pushing off of the nearby couch. (Tr. at 143, 158) Once he

       was on top of Officer Tranchant, Escoe continued to struggle to get free of

       Officer Tranchant’s hold by attempting to strike him. (Tr. at 144) Officer

       Navarro and Sergeant Osborne stated that Escoe did not comply with the order

       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1628 | July 13, 2016   Page 9 of 10
       to stop resisting until Officers Navarro and Morgan delivered drive stuns to

       Escoe’s lower back. (Tr. at 107, 109, 161) Given this evidence, a reasonable

       finder of fact could conclude that Escoe resisted with force.


[19]   Escoe attempts to counter by presenting evidence that he did not act with force,

       specifically citing that he “became a noodle” and exclaimed, “I am not trying to

       fight you” in an “emergency voice.” (Tr. at 197, 198, 218) Once again,

       however, Escoe invites us to reweigh the evidence, which we will not do.



                                               Conclusion
[20]   Sufficient evidence supports the convictions.


[21]   Affirmed.


       Bradford, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1628 | July 13, 2016   Page 10 of 10
