                                                                     FILED
                                                                Feb 24 2017, 8:45 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Suzy St. John                                            Curtis T. Hill, Jr.
      Marion County Public Defender Agency                     Attorney General of Indiana
      Indianapolis, Indiana
                                                               Michael Gene Worden
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana




                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jefferson Jean-Baptiste,                                 February 24, 2017
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1608-CR-1798
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Rebekah F.
      Appellee-Plaintiff.                                      Pierson-Treacy, Judge
                                                               Trial Court Cause No.
                                                               49G19-1604-CM-12899



      Najam, Judge.


                                        Statement of the Case
[1]   Jefferson Jean-Baptiste appeals his conviction, following a bench trial, for

      resisting law enforcement, as a Class A misdemeanor. Jean-Baptiste raises a

      single issue for our review, but we address two issues on appeal:
      Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017           Page 1 of 12
               1.       Whether the State presented sufficient evidence to support
                        Jean-Baptiste’s conviction.


               2.       Whether the trial court committed fundamental error
                        when it denied Jean-Baptiste his right to a jury trial
                        without first securing his personal waiver of that right on
                        the record.


[2]   The undisputed evidence demonstrates that a law enforcement officer, while

      attempting to serve a “civil arrest warrant”1 on Jean-Baptiste at his home,

      unlawfully entered Jean-Baptiste’s home. In light of that unlawful entry, Jean-

      Baptiste had the right, pursuant to Indiana Code Section 35-41-3-2(i), to

      reasonably resist the law enforcement officer. As that lawful resistance was the

      only basis for Jean-Baptiste’s conviction, the State failed to present sufficient

      evidence to support his conviction and, thus, we reverse. We also hold, sua

      sponte, that the record unmistakably shows that the trial court failed to secure

      Jean-Baptiste’s personal waiver of his right to a jury trial on the record.

      Accordingly, the trial court committed fundamental error under the Sixth

      Amendment to the United States Constitution when it denied Jean-Baptiste’s

      jury’s trial request. As such, for that additional reason we also reverse.




      1
        The officer who served the warrant repeatedly identified it as a “civil arrest warrant,” and the parties on
      appeal also use that terminology. We surmise that a “civil arrest warrant” is either a bench warrant or a writ
      of body attachment issued in a civil proceeding.

      Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017                      Page 2 of 12
                                  Facts and Procedural History
[3]   On April 5, 2016, Marion County Sheriff’s Deputy James Russo went to Jean-

      Baptiste’s residence to serve an arrest warrant stemming from a civil action

      against Jean-Baptiste. Deputy Russo drove his official vehicle to Jean-

      Baptiste’s residence and wore his law enforcement uniform and badge. He

      approached Jean-Baptiste’s front door and knocked loudly on it. Upon Jean-

      Baptiste opening the door, Deputy Russo identified himself as a law

      enforcement officer. Deputy Russo then explained that he had a civil arrest

      warrant for Jean-Baptiste, which Deputy Russo showed to Jean-Baptiste, and

      that he needed Jean-Baptiste to “turn around and place his hands behind his

      back.” Tr. Vol. II at 11. Jean-Baptiste impolitely refused. Deputy Russo

      repeated his request “[n]umerous times,” to no avail. Id.


[4]   During their exchange, Deputy Russo stood “outside of the threshold to the

      doorway.” Id. at 19. Jean-Baptiste, however, “was in the threshold of his

      doorway.” Id. That is, as Deputy Russo later explained, during their exchange

      Deputy Russo was “outside of the residence” while Jean-Baptiste “was inside

      the residence.” Id.


[5]   In light of Jean-Baptiste’s noncompliance, Deputy Russo told Jean-Baptiste that

      if Jean-Baptiste did not comply “he would . . . be tased.” Id. at 12. Rather than

      comply, Jean-Baptiste “stood there.” Id. Deputy Russo then reached across the

      threshold of the doorway “to grab [Jean-Baptiste’s] right arm to place him into

      custody,” but Jean-Baptiste “yanked” his arm away “forcefully.” Id. Jean-


      Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017   Page 3 of 12
      Baptiste then backed away from the door and into his residence. Asserting

      probable cause that Jean-Baptiste had just resisted arrest, Deputy Russo then

      fully entered Jean-Baptiste’s residence and, thereafter, placed Jean-Baptiste into

      custody.


[6]   The State charged Jean-Baptiste with resisting law enforcement, as a Class A

      misdemeanor, and disorderly conduct, as a Class B misdemeanor. 2 After a

      bench trial, the court found Jean-Baptiste guilty of resisting law enforcement

      and not guilty of disorderly conduct. The court then sentenced Jean-Baptiste

      accordingly. This appeal ensued.


                                      Discussion and Decision
                                 Issue One: Sufficiency of the Evidence

[7]   Jean-Baptiste contends on appeal that the State failed to present sufficient

      evidence to support his conviction for resisting law enforcement. In our review

      of such claims, “we consider only the evidence and reasonable inferences most

      favorable to the conviction[,] neither reweighing evidence nor reassessing

      witness credibility.” Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016). “We

      affirm the judgment unless no reasonable factfinder could find the defendant

      guilty.” Id.




      2
        The facts underlying the disorderly conduct charge arose after Deputy Russo had placed Jean-Baptiste into
      custody.

      Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017                   Page 4 of 12
[8]    To prove that Jean-Baptiste committed Class A misdemeanor resisting law

       enforcement, the State was required to show that he knowingly or intentionally

       forcibly resisted, obstructed, or interfered with a law enforcement officer “while

       the officer [wa]s lawfully engaged in the execution of the officer’s duties.” Ind.

       Code § 35-44.1-3-1 (2015) (emphasis added). The only question in this appeal is

       whether a law enforcement officer who attempts to effect a civil arrest warrant

       is lawfully engaged in that duty when he crosses the threshold of the

       defendant’s residence without permission or other legal justification and grabs

       the defendant. We hold he is not.


[9]    The instant appeal is on all fours with this court’s opinion in Casselman v. State,

       472 N.E.2d 1310 (Ind. Ct. App. 1985). In Casselman, a sheriff’s deputy

       appeared at the front door of Casselman’s residence with a civil body

       attachment order for Casselman to appear before the court. The deputy

       knocked on the door, Casselman answered, and the deputy explained who he

       was and why he was there. Casselman impolitely refused to cooperate, and he

       then “tried to close the door” on the deputy. Id. at 1312. The deputy attempted

       to physically prevent the door from closing, and Casselman “pushed” the

       deputy away. Id. The two then engaged in “a shoving and grabbing match”

       before Casselman retreated into his home. Id. The deputy followed him inside

       and placed him into custody. The trial court convicted Casselman of resisting

       law enforcement, as a Class A misdemeanor.


[10]   We reversed on appeal. We initially noted that a writ of body attachment or

       civil arrest warrant “is not a criminal arrest warrant.” Id. We noted that “[t]his

       Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017   Page 5 of 12
       distinction is important as we view the confrontation on the doorstep of

       Casselman’s house.” Id. at 1313. Acknowledging the vitality of the Castle

       Doctrine in Indiana,3 see I.C. § 35-41-3-2, we stated that, “in matters concerning

       merely civil process, the courts of this land have been zealous in protecting

       against the authority of the government to force entry into a private dwelling.”

       Casselman, 472 N.E.2d at 1314.


[11]   Accordingly, we held that the deputy in Casselman


                was not lawfully engaged in the execution of civil process when,
                while attempting to effect service of the writ, he prevented
                Casselman from closing the door to his home. Casselman had
                the right to close the door; he engaged in no resistance,
                obstruction[,] or interference other than to attempt to assert that
                right. The scuffle between Casselman and [the deputy] arose
                only after [the deputy] unlawfully entered Casselman’s doorway
                to prevent Casselman from closing the door.


       Id. (citations omitted). Further, we expressly rejected the State’s argument that,

       the lawfulness of the deputy’s actions aside, Casselman had no right to resist.

       Id. at 1316. Specifically, we stated that, “assuming Casselman knew that civil

       arrest was intended, . . . where the arrest is attempted by means of a forceful

       and unlawful entry into a citizen’s home . . . such an entry represents the use of

       excessive force.” Id.




       3
         “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.’” Cupello v. State, 27 N.E.3d 1122, 1124 n.1 (Ind. Ct. App. 2015)
       (quoting Barnes v. State, 953 N.E.2d 473, 474 (Ind. 2011), superseded by statute, I.C. § 35-41-3-2(a)).

       Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017                       Page 6 of 12
[12]   We also recognize that the Indiana General Assembly recently reaffirmed its

       commitment to Castle Doctrine as the policy in Indiana. See I.C. § 35-41-3-

       2(a); see also Cupello v. State, 27 N.E.3d 1122, 1132 (Ind. Ct. App. 2015) (noting

       that recent amendments to Indiana Code Section 35-41-3-2 “reaffirmed . . . the

       Castle Doctrine”). In particular, Indiana Code Section 35-41-3-2(i) provides

       that “[a] person is justified in using reasonable force against a public servant if

       the person reasonably believes the force is necessary to . . . prevent or terminate

       the public servant’s unlawful entry of . . . the person’s dwelling . . . .”


[13]   In light of Casselman and Section 35-41-3-2, we hold that the State failed to

       present sufficient evidence to support Jean-Baptiste’s conviction for resisting

       law enforcement. The undisputed evidence shows that Deputy Russo was

       “outside of the residence” while Jean-Baptiste was “inside the residence” when

       Deputy Russo, without permission or other legal justification, reached across

       the threshold and grabbed Jean-Baptiste. Tr. Vol. II at 19. As a matter of law,

       Deputy Russo unlawfully entered into Jean-Baptiste’s residence. Casselman, 472

       N.E.2d at 1316. Thus, Deputy Russo was not lawfully engaged in the exercise

       of his duties, which permitted Russo, under Section 35-41-3-2(i), to use

       reasonable force to prevent or terminate Deputy Russo’s entry. And that is

       what Jean-Baptiste did when he “yanked” his arm away “forcefully” from

       Deputy Russo’s grasp. Tr. Vol. II at 12.


[14]   Nonetheless, the State argues that Casselman is inapposite because “Deputy

       Russo did not focibl[y] enter [Jean-Baptiste’s] residence . . . .” Appellee’s Br. at

       12. We cannot agree that Deputy Russo acted without force when he reached

       Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017   Page 7 of 12
       across the threshold and, by his own admission, “grab[bed]” Jean-Baptiste’s

       right arm. Tr. Vol. II at 12. And insofar as the State’s argument is that an

       officer may not stick his foot in the doorway to prevent the resident from

       closing the door, see Cupello, 27 N.E.3d at 1130, but the officer may nonetheless

       grab a resident in the threshold of his doorway, we reject that distinction.


[15]   The State also argues that the threshold “is essentially . . . a public place.”

       Appellee’s Br. at 12. The Indiana Supreme Court thinks not:


               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.


       Middleton v. State, 714 N.E.2d 1099, 1101 (Ind. 1999) (quotation marks

       omitted); see also Cupello, 27 N.E.3d at 1130 (“Constable Webb unlawfully

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

       apartment door without lawful justification.”). The State’s argument on this

       issue is without merit.


[16]   Finally, the State argues that the most factually analogous case to Jean-

       Baptiste’s is not Casselman but, rather, Johnson v. State, 747 N.E.2d 623 (Ind. Ct.

       App. 2001). We cannot agree. In Johnson, an officer went to Johnson’s

       residence “to issue . . . a dog restraint violation.” Id. at 626. While engaging

       with Johnson’s wife on the porch of the residence, Johnson engaged in

       disorderly conduct directed at the officer from “the doorway” of the residence.
       Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017   Page 8 of 12
       Id. The officer then “grabbed [Johnson’s] arm in order to arrest him,” but

       Johnson pulled his arm back and retreated into his residence. Id. The officer

       followed and arrested Johnson.


[17]   We affirmed his convictions for resisting law enforcement and disorderly

       conduct. In analyzing whether the officer had acted lawfully for the resisting

       law enforcement charge, we stated that “Johnson was in the doorway,

       not . . . in the house . . . .” Id. at 632. We also relied on the fact that “Johnson

       was engaged in a public confrontation” with the officer prior to his resisting

       arrest. Id. And we noted that Johnson’s wife had “invited [the officer] onto the

       porch . . . .” Id.


[18]   None of those facts are present here. Unlike in Johnson, the undisputed

       evidence here unequivocally shows that Jean-Baptiste was “inside the

       residence.” Tr. Vol. II at 19. Further, there is no evidence that Jean-Baptiste

       had engaged in disorderly conduct prior to or contemporaneous with the facts

       underlying his resisting law enforcement conviction. And neither did Jean-

       Baptiste or any other resident affirmatively invite Deputy Russo onto the

       property. As such, we reject the State’s argument that Johnson rather than

       Casselman is the more analogous authority here.


[19]   In sum, we hold that the State failed to present sufficient evidence to support

       Jean-Baptiste’s conviction for resisting law enforcement, as a Class A

       misdemeanor. The undisputed evidence inescapably demonstrates that Deputy

       Russo was not lawfully engaged in the exercise of his duties when he reached


       Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017   Page 9 of 12
       across the threshold of Jean-Baptiste’s residence without permission or other

       legal justification and grabbed him. As Deputy Russo was not lawfully engaged

       in the exercise of his duties, as a matter of law Jean-Baptiste had the right to

       reasonably resist Deputy Russo, which Jean-Baptiste did.4 Thus, we reverse

       Jean-Baptiste’s conviction.


                                        Issue Two: Jury Trial Waiver

[20]   Even if we were to agree that the State presented sufficient evidence to support

       Jean-Baptiste’s conviction, we would still be obliged to reverse, sua sponte,

       because the trial court committed fundamental error when it denied Jean-

       Baptiste’s right to a jury trial without first eliciting a personal waiver from him

       on the record. As we explained in Casselman:


               Criminal Rule 22 provides:


                        A defendant charged with a misdemeanor may demand a
                        trial by jury by filing a written demand therefor not later
                        than ten (10) days before his scheduled trial date. The
                        failure of a defendant to demand a trial by jury as required
                        by this rule shall constitute a waiver by him of trial by jury
                        unless the defendant has not had at least fifteen (15) days
                        advance notice of his scheduled trial date and of the
                        consequences of his failure to demand a trial by jury.


               The state urges that since Casselman failed to demand a jury as
               provided by the rule, no error was committed. The argument is



       4
         In light of our holding, we need not reach the State’s further argument that Deputy Russo was permitted to
       enter Jean-Baptiste’s residence under a theory of hot pursuit.

       Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017                   Page 10 of 12
               specious. If the rule is, itself, to pass constitutional muster it
               must meet the requirements of Boykin v. Alabama (1969), 395 U.S.
               238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 that waiver of such a
               fundamental right cannot be presumed from a silent record. . . .


       472 N.E.2d 1310, 1311 n.1 (Ind. Ct. App. 1985) (emphasis added); see also

       Fiandt v. State, 996 N.E.2d 421, 425-28 (Najam, J., dissenting), trans. not sought.

       Further, it is beyond dispute that the Sixth Amendment requires the waiver of

       the right to a jury trial to be made personally by the defendant. Doughty v. State,

       470 N.E.2d 69, 70 (Ind. 1984).


[21]   Here, the record shows that Jean-Baptiste had been advised of Criminal Rule 22

       and had not complied with it. Rather than complying with Rule 22, on the day

       of his bench trial Jean-Baptiste requested a trial by jury. The trial court denied

       his request solely on the basis of Jean-Baptiste’s noncompliance with Rule 22.

       Tr. Vol. II at 7. That was fundamental error. Absent his personal waiver of his

       right to a jury trial on the record, the court was required under the Sixth

       Amendment to presume that a defendant charged with a Class A misdemeanor

       desired a jury trial, not a bench trial. See Fiandt, 996 N.E.2d at 425-28 (Najam,

       J., dissenting); see also Holly v. State, 681 N.E.2d 1176, 1177-78 (Ind. Ct. App.

       1997) (Rucker, J.) (“Sentences exceeding six months may not be imposed

       absent a jury trial or [a constitutionally sufficient] waiver thereof.”). Only after

       that personal waiver on the record is secured may the trial court then operate

       under Rule 22. As that did not happen here, the trial court committed

       fundamental error when it denied Jean-Baptiste his right to a jury trial, and for

       that additional reason we reverse his conviction.

       Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017   Page 11 of 12
[22]   Reversed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1608-CR-1798 | February 24, 2017   Page 12 of 12
