                                                                        FILED
                                                                   Mar 18 2019, 2:54 pm

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court

                                IN THE

       Indiana Supreme Court
                  Supreme Court Case No. 18S-CR-436

                      Christapher Batchelor
                           Appellant (Defendant)

                                    –v–

                           State of Indiana
                             Appellee (Plaintiff)


            Argued: October 4, 2018 | Decided: March 18, 2019

                    Appeal from the Clay Circuit Court
                           No. 11C01-1512-F6-890
                   The Honorable Joseph D. Trout, Judge

        On Petition to Transfer from the Indiana Court of Appeals
                          No. 11A01-1707-CR-1574



                         Opinion by Justice Massa
Chief Justice Rush, Justice David, Justice Slaughter, and Justice Goff concur.
Massa, Justice.

   The purpose of a jury instruction “is to inform the jury of the law
applicable to the facts without misleading the jury and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct verdict.”
Campbell v. State, 19 N.E.3d 271, 277 (Ind. 2014). Because the challenged
instruction here fell short of this objective, we disapprove of its use going
forward. But because we find that the jury charge, as a whole, cured the
instructional defect, and because the evidence clearly sustained the
defendant’s conviction, we affirm the trial court.


Facts and Procedural History
    On a rainy, mid-December evening, Clay County Deputy Sheriff James
Switzer noticed Christapher Batchelor driving without a seatbelt. As the
deputy approached him from behind at a four-way stop, Batchelor
reached over to fasten his seatbelt before signaling and turning left. The
deputy, driving in a marked police cruiser, then activated his emergency
lights. But Batchelor failed to immediately stop. For the next minute and
thirty-eight seconds, Batchelor passed a gas station and wound his way
through a well-lit residential area at about thirty-five miles per hour,
making complete stops at two intersections and passing several
illuminated side streets along the way. Even as other vehicles came to a
stop during this low-speed pursuit, and despite the piercing ring of the
deputy’s siren, Batchelor simply kept driving. When the deputy directed
his LED spotlight onto the truck’s side and rearview mirrors, Batchelor
finally pulled over into a gravel parking spot on the side of the road.

   As Batchelor exited his truck, the deputy ordered him to the ground.
Batchelor initially complied. But as the deputy approached to arrest him,
he resisted, and a struggle ensued. It took two more backup officers to
finally subdue Batchelor. In the end, the deputy injured his ankle, one of
the back-up officers jammed his finger, and another received a black eye.

  The State charged Batchelor with three crimes: Level-6 felony resisting
law enforcement by fleeing, Level-6 felony battery on a police officer, and
Class-A misdemeanor resisting arrest. See Indiana Code §§ 35-44.1-3-


Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019        Page 2 of 21
1(a)(3), (b)(1)(A) (2014) (felony resisting); I.C. §§ 35-42-2-1(b)(1), (d)(2)
(2014) (felony battery); I.C. § 35-44.1-3-1(a)(1) (2014) (misdemeanor
resisting).

   At the conclusion of evidence at trial, the State proposed several jury
instructions, including one which defined the act of fleeing, as that term
applied to the felony-resisting charge. Under that instruction—Instruction
22—a person “flees” when he or she “attempts to escape from law
enforcement or attempts to unnecessarily prolong the time before the
person must stop.” App. Vol. III, p.71. Instruction 22 also required the
State to prove beyond a reasonable doubt that the “defendant acted with
the intent to escape” or, in the alternative, that a “reasonable driver in the
Defendant’s position” would have stopped sooner. Id.

   After summarizing all proposed final jury instructions, the trial court
asked the parties, “We good?” Tr. Vol. III, p.98. Defense counsel
responded “Yeah” while the prosecution replied with “No objection.” Id.

   In his closing arguments, Batchelor claimed that he had not attempted
to flee, as there was no high-speed chase, it was dark, it was raining, and
the gravel parking spot where he stopped was “a good and safe place to
pull over.” Tr. Vol. III, pp. 108–09. He also argued self-defense, claiming
the deputy had used unlawful force in subduing him. But the State argued
that Batchelor was fleeing, citing the numerous places he could have
stopped, the well-lit streets, and the lack of evidence supporting a
reasonable safety concern.

   Following deliberations, the jury found Batchelor guilty on all counts
and the trial court entered judgment of conviction. Batchelor appealed,
arguing that Instruction 22 expanded the definition of fleeing, which
invaded the province of the jury and diminished the State’s burden of
proof.

   In a unanimous opinion, our Court of Appeals reversed the felony-
resisting conviction while affirming all other convictions. Batchelor v. State,
97 N.E.3d 297, 305 (Ind. Ct. App. 2018), vacated. The panel concluded that
the jury instruction, by allowing a conviction based on what a “reasonable
driver” would have done, permitted the State to convict Batchelor on a



Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019            Page 3 of 21
civil negligence standard, resulting in fundamental error. Id. at 303. Both
parties unsuccessfully sought rehearing.

   We granted the State’s petition to transfer and now address Batchelor’s
claim of instructional error as it relates to his felony-resisting conviction.
Because he fails to explain how this error affected his felony-battery and
misdemeanor-resisting convictions, we summarily affirm those
convictions.


Standard of Review
   We generally review a trial court’s jury instruction for an abuse of
discretion. Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012). Under this
standard, we look to whether evidence presented at trial supports the
instruction and to whether its substance is covered by other instructions.
Id. at 1230–31. When the appellant challenges the instruction as an
incorrect statement of law, we apply a de novo standard of review. Id. at
1231. We reverse the trial court only if the instruction resulted in prejudice
to the defendant’s “substantial rights.” Hernandez v. State, 45 N.E.3d 373,
376 (Ind. 2015).


Discussion and Decision
   A person commits the crime of resisting law enforcement, a Level 6
felony, when that person, using a vehicle, “knowingly or intentionally . . .
flees from a law enforcement officer” after that officer has, “by visible or
audible means, including operation of [a] siren or emergency lights,
identified himself or herself and ordered the person to stop.” I.C. § 35-
44.1-3-1.

   Although the felony-resisting statute offers no definition of the term
“flees,” our Court of Appeals offered some guidance in Cowans v. State, 53
N.E.3d 540 (Ind. Ct. App. 2016), trans. not sought. There, the court affirmed
the defendant’s resisting-by-fleeing conviction, rejecting as a mistake of
law his belief that he could delay stopping for police due to safety
concerns. Id. at 543. See Yoder v. State, 208 Ind. 50, 58, 194 N.E. 645, 648



Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019         Page 4 of 21
(1935) (reciting the longstanding principle that “ignorance of the law
excuses no man”) (internal quotation marks omitted). In speculating that
the defendant was “far from alone” in his mistaken belief, the Cowans
panel decided to “address some of the underlying issues” of that case,
issues “likely to reoccur for other citizens of Indiana.” 53 N.E.3d at 543.
While finding “no express sanction” in the resisting statute for delaying a
stop due to safety concerns, the panel concluded that a driver with an
“adequate justification” may still “have some discretion to choose the
location of a stop.” Id. at 544 (citing Woodward v. State, 770 N.E.2d 897, 902
(Ind. Ct. App. 2002) (acknowledging that a driver may have an “adequate
justification” for “choos[ing] the location of the stop” but affirming the
defendant’s resisting-by-fleeing conviction based on sufficient evidence),
trans. denied).

   Based on this conclusion, the Cowans panel determined that a
defendant charged with resisting would be entitled to a jury instruction
defining the word “flee.” Id. at 545–46. This definition, the panel opined,
should explain “that if a reasonable driver in the defendant’s position
would have felt unsafe to come to an immediate halt, and if the defendant
took reasonable steps to increase the safety of the stop without
unnecessarily prolonging the process, then the defendant was not
fleeing.” Id. at 546.

   Instruction 22 tracks this language from Cowans:

        A person who fails to stop his vehicle promptly “flees”
        law enforcement when the person attempts to escape
        from law enforcement or attempts to unnecessarily
        prolong the time before the person must stop. It is an
        issue in this case whether the Defendant attempted to
        escape or unnecessarily prolonged the time before
        stopping. The burden is on the State to prove beyond a
        reasonable doubt that:

            (1) The defendant acted with the intent to
                escape, or




Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019         Page 5 of 21
            (2) A reasonable driver in the Defendant’s
                position would not have felt unsafe under
                the facts of this case to come to an
                immediate halt, or

            (3) [I]f a reasonable driver in the Defendant’s
                position would have felt unsafe to come
                to an immediate halt, the driver would
                have come to a halt sooner.

App. Vol. III, p.71. (bold emphases added.)

   Batchelor argues that, by using a civil negligence standard to establish
criminal culpability, Instruction 22 relieves the State of its burden to
prove, under the felony-resisting statute, that he knowingly or
intentionally fled. Permitting the jury to convict on a lesser mens rea, he
insists, violates due process and conflicts with “well-established
precedent” holding that similar instructional defects amount to
fundamental error. Resp. to Pet. to Trans. at 6. Batchelor also contends
that, by expanding the statutory definition of fleeing, Instruction 22
invades the province of the jury in violation of article 1, section 19 of the
Indiana Constitution. He specifically faults the instruction for inviting the
jury to focus on whether “reasonable” safety concerns justified his actions,
thus minimizing other relevant factors, like the speed at which he drove
or the complete stops he made at intersections.

   The State counters that Batchelor invited the alleged instructional error,
thus precluding appellate review. On the merits, the State argues that the
trial court committed no fundamental error because the instruction
embodies an accurate statement of law approved by Court of Appeals
precedent. What’s more, the State insists, the trial court’s general
instructions properly informed the jury on all elements of the offense, thus
curing any defect in the challenged instruction.




Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019        Page 6 of 21
I. With no evidence of strategic maneuvering at trial,
   Batchelor did not invite the alleged instructional
   error.
   We first address the State’s argument that Batchelor invited the trial
court’s alleged instructional error. Initially, we observe that the State
potentially waived this argument, having raised it for the first time in its
petition for rehearing in the Court of Appeals. 1 See Young v. State, 30
N.E.3d 719, 728 (Ind. 2015) (“Generally, new claims or issues . . . cannot be
presented for the first time in a petition for rehearing.”) (internal
quotation marks omitted). Still, we address this issue—briefed and argued
extensively by both parties on transfer—to clarify important distinctions
between our doctrines on waiver and invited error. 2

   A party’s failure to object to, and thus preserve, an alleged trial error
results in waiver of that claim on appeal. Durden v. State, 99 N.E.3d 645,
651 (Ind. 2018). But “[w]hen the failure to object accompanies the party’s
affirmative requests of the court, it becomes a question of invited error.”
Id. (internal quotation marks omitted). The distinction in these two
doctrines is an important one: whereas waiver generally leaves open an
appellant’s claim to fundamental-error review, invited error typically
forecloses appellate review altogether. Brewington v. State, 7 N.E.3d 946,
974–75 (Ind. 2014).




1Compare State’s Br. of Appellee at 10 (“Batchelor failed to object to the jury instruction he
now challenges, and he has waived his claim as a result. Therefore, any alleged error can only
be reviewed for fundamental error.”) (internal citation omitted) with State’s Pet. for R’hrg at 5
(arguing that, when, as here, “a defendant does not object at trial, it cannot be fundamental
error if there is a legitimate strategic reason for not objecting”) (citing Brewington v. State, 7
N.E.3d 946, 972 (Ind. 2014)).
2We classify alleged errors as structural, fundamental, or harmless. For a discussion of these
error doctrines and the scope of appellate review they embrace, see Durden v. State, 99 N.E.3d
645, 651–53 (Ind. 2018).




Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019                          Page 7 of 21
   Here, both parties recognize that Batchelor never objected to the
instruction he now challenges. 3 But the State seeks to characterize this
procedural default as an affirmative action fatal to Batchelor’s claim of
fundamental error. By insisting that Batchelor “explicitly had no objection
to the instruction when proposed” and that he “affirmatively accepted the
jury instructions as a whole,” State’s Reply Br. on Trans. at 4, the State
seeks to blur—if not collapse—the distinction between waiver and invited
error, precluding review under either doctrine.

   We recognize that our appellate courts have struggled in defining the
doctrinal parameters of waiver and invited error, leading occasionally to
inconsistent application. Compare, e.g., Gamble v. State, 831 N.E.2d 178, 184
(Ind. Ct. App. 2005) (foreclosing appellate review because defendant’s
failure to request a jury admonishment on prosecutor’s improper closing
arguments “essentially invited the error”), trans. denied, with Etienne v.
State, 716 N.E.2d 457, 461 (Ind. 1999) (reviewing prosecutor’s improper
closing arguments for fundamental error after concluding that defendant’s
“failure to request an admonishment or move for a mistrial” resulted in
mere “waiver of the issue”). We can attribute this apparent inconsistency
to a long line of precedent defining invited error in somewhat
contradictory terms—as both a form of estoppel and as a form of waiver.4
As this Court stated in Jolly v. Modisett, a “party will not be permitted to
take advantage of errors which he himself committed or invited or
induced the trial court to commit, or which were the natural
consequences of his own neglect or misconduct.” 257 Ind. 426, 429, 275




3Initially, the State argued that Batchelor’s counsel responded with “No objection.” State’s
Pet. to Trans. at 6. But the State later conceded that it “misattributed the ‘no objection’
statement to Batchelor’s counsel,” while still arguing that Batchelor never raised an objection
to the jury instructions as a whole. State’s Reply Br. on Trans. at 4.
4Waiver is a form of procedural default or a forfeiture of rights. Bunch v. State, 778 N.E.2d
1285, 1287 (Ind. 2002). Estoppel, on the other hand, stands for the general principle that “one
who by deed or conduct has induced another to act in a particular manner will not be
permitted to adopt an inconsistent position, attitude, or course of conduct that causes injury
to such other.” Town of New Chicago v. City of Lake Station ex rel. Lake Station Sanitary Dist., 939
N.E.2d 638, 653 (Ind. Ct. App. 2010), trans. denied.



Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019                             Page 8 of 21
N.E.2d 780, 782 (1971) (emphases added). See also Brewington, 7 N.E.3d at
975 (virtually the same).

   This language first appeared over seventy years ago in Armstrong v.
Presslor, 225 Ind. 291, 295, 73 N.E.2d 751, 753 (1947) (“An appellant will
not be permitted to take advantage of errors which he himself committed,
or invited or induced the trial court to commit, or which were the natural
consequences of his own neglect or misconduct.”) (internal quotations and
alterations omitted). Notably, in articulating this now-familiar rule, the
Presslor Court immediately followed with the general principle that, “[i]f
no substantial right of the pleader has been affected, error . . . does not
constitute grounds for reversal.” Id. In other words, the language we
associate today with invited error materialized as a form of waiver,
leaving open (rather than foreclosing) the possibility of appellate review if
the error affected the appellant’s “substantial” rights. 5

   Over time, our invited-error doctrine expanded to foreclose even
constitutional claims. 6 See, e.g., Brewington, 7 N.E.3d at 977 (noting that
“even constitutional errors may be invited”); Durden, 99 N.E.3d at 655
(finding “no reason to exempt structural errors from the invited-error
doctrine” despite prejudicial impact of juror removal) (internal quotation
marks omitted).

  But throughout the doctrine’s history, we have consistently required
something more than mere “neglect” before applying the automatic rule




5We can trace the invited-error doctrine back to the mid-nineteenth century, but even then,
the Court considered the degree of potential harm before declining review. See Billingsley v.
Groves, 5 Ind. 553, 555 (1854) (concluding that the trial court’s failure to transfer funds to
defendant before entering judgment was “the fault of the defendant,” whether by “design or
carelessness,” and with “the sum being trivial, this Court will not reverse the judgment, to
protract litigation”) (emphasis added).
6 Our courts have applied some limits to the invited-error doctrine. See, e.g., Miles v. State, 889

N.E.2d 295 (Ind. 2008) (holding that a defendant is not precluded under the invited-error
doctrine from seeking appellate review of his sentence for murder despite his acquiescence to
the sentence imposed); Vendeventer v. State, 459 N.E.2d 1221 (Ind. Ct. App. 1984) (reversing
conviction for a non-existent offense despite defendant’s inclusion of that offense in tendered
jury instructions).



Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019                            Page 9 of 21
of preclusion: evidence of counsel’s strategic maneuvering at trial. Indeed,
this Court has long held that the “policy behind” the doctrine is to
prohibit a party, privy to an “erroneous action of the court,” from alleging
“prejudicial error” following an adverse decision. Barton v. State, 240 Ind.
257, 259, 163 N.E.2d 600, 601 (1960); Durden, 99 N.E.3d at 649 (affirming
defendant’s conviction on grounds that he “invited the error as part of a
deliberate trial strategy”).

   In reaffirming this precedent, we emphasize today that, to establish
invited error, there must be some evidence that the error resulted from the
appellant’s affirmative actions as part of a deliberate, “well-informed”
trial strategy. See Brewington, 7 N.E.3d at 954. A “passive lack of
objection,” standing alone, is simply not enough. Id. at 974. And when
there is no evidence of counsel’s strategic maneuvering, we are reluctant
to find invited error based on the appellant’s neglect or mere acquiescence
to an error introduced by the court or opposing counsel. See Young v. State,
249 Ind. 286, 289, 231 N.E.2d 797, 799 (1967) (declaring that an appellate
court “cannot ignore a fundamental error apparent on the face of the
record,” as “one is not to be deprived of his liberty because of carelessness
on the part of the trial judge and of defense counsel in failing to call to the
attention of this Court a gross error which offends our concepts of
criminal justice”) (citing Wilson v. State, 222 Ind. 63, 66, 51 N.E.2d 848, 850
(1943)). This approach, we believe, embodies the first principles this Court
pronounced in Presslor.

   To be sure, cases often arise when either the source of the error or
counsel’s motives at trial are less than clear. And appellate courts should
exercise their judgment in deciding the issue. But when a careful reading
of the record fails to disclose enough information, courts should resolve
any doubts against a finding of invited error rather than engage in
speculation. Although this may seem contrary to principles of finality and
judicial economy, we believe the opposite is often true. Defendants still
carry a heavy burden in meeting the high standard of fundamental error,
so there is little to no threat of multiple reversals. And when “the
procedural posture of the claim is caused by counsel’s failure to object at
trial,” we can often preempt the defendant’s ineffective-assistance-of-
counsel challenge on post-conviction review by considering a claim of


Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019        Page 10 of 21
fundamental error on direct appeal. Brewington, 7 N.E.3d at 974 (because
“fundamental error requires a showing of at least as much prejudice to the
defendant as a claim of ineffective assistance of counsel,” a finding against
the former claim establishes a finding against the latter claim) (citing
Culver v. State, 727 N.E.2d 1062, 1070 & n. 7 (Ind. 2000)); see also United
States v. Hamilton, 499 F.3d 734, 736 (7th Cir. 2007) (applying similar
reasoning). Finally, as this case illustrates, by resolving a claim on the
merits, rather than disposing of it on grounds of procedural default,
appellate courts can address important issues that would otherwise
perpetuate litigation. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015)
(“[W]e prefer to resolve cases on the merits instead of on procedural
grounds like waiver.”) (internal quotation marks omitted).

   For these reasons, we agree that, “[u]nder the State’s broad
interpretation of the invited error doctrine, a defendant will almost always
invite error rather than waive it.” Resp. to Pet. to Trans. at 10. Indeed, the
State, not Batchelor, tendered and relied on the challenged instruction at
trial. 7 And we find nothing in the record—and the State cites no
evidence—showing that Batchelor made an “active” or “affirmative”
request for this instruction, let alone that he intended to exploit it as a
deliberate trial strategy. Cf. Durden, 99 N.E.3d at 656 (concluding that
defense counsel “did far more than simply fail to object” to the procedural
error at trial when he “expressly declined ‘any caveats’ or special
instructions for the jury and repeatedly assured the court of his approval
of the procedure employed, despite its defects”).

    We now proceed to the merits of this case.




7 It’s unclear from the record whether the State even mentioned the instruction’s provenance.
The transcript is devoid of reference to Cowans or Woodward. And while several of the State’s
proposed instructions cite either the applicable statute or supporting precedent, there is no
citation to a source for the challenged instruction. The final instructions given to the jury
likewise contain no authority, apart from a single reference to a state constitutional provision.



Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019                        Page 11 of 21
II. The challenged instruction resulted in no
    fundamental error.
   Having concluded that Batchelor did not invite the alleged instructional
error, we now review his claim for fundamental error, as he failed to
object to the tendered instruction at trial. An error is fundamental if it
“made a fair trial impossible” or if it clearly and blatantly violated basic
principles of due process resulting in “undeniable and substantial
potential for harm.” Durden, 99 N.E.3d at 652 (internal quotation marks
omitted). In reviewing a particular instruction for fundamental error, we
need not reverse unless the instructions as a whole—the jury charge—
misled the jury on the applicable law. Clay City Consol. Sch. Corp. v.
Timberman, 918 N.E.2d 292, 300 (Ind. 2009).


   A. Instruction 22 misstated the mens rea and potentially
      misled the jury as an incorrect statement of law.
   To convict under the felony-resisting statute, as noted above, the State
must prove beyond a reasonable doubt that the defendant “knowingly or
intentionally” fled from a law-enforcement officer after that officer has
identified himself and ordered the defendant to stop. I.C. § 35-44.1-3-1.
Instruction 22 falls short of this requirement in two ways.

   First, by suggesting that the State need only prove the intent to flee
based on what a “reasonable driver” would have done, the challenged
instruction impermissibly uses a civil negligence standard to establish
criminal culpability. To give “concrete substance for the presumption of
innocence,” due process requires the State to persuade the factfinder
“beyond a reasonable doubt of every fact necessary to constitute the crime
charged.” In re Winship, 397 U.S. 358, 363, 364 (1970). This standard “is a
prime instrument for reducing the risk of convictions resting on factual
error.” Id. at 363. A “reasonable person” standard, on the other hand,
although a central facet of civil liability in tort law, conflicts with “the
conventional requirement for criminal conduct—awareness of some
wrongdoing.” Elonis v. United States, 135 S. Ct. 2001, 2011 (2015) (internal
quotation marks omitted).


Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019      Page 12 of 21
   By predicating liability on what a “reasonable driver” considers safe or
unsafe, Instruction 22 effectively “reduces culpability on the all-important
element of the crime to negligence.” Id. (internal quotation marks
omitted). Although the prosecutor may argue that a defendant’s actions
were unreasonable, the “test of [a defendant’s] knowledge is not whether
a reasonable person would have known” of the offense, “but whether,
from the circumstances surrounding” the act, the defendant knew he
committed the offense. See Gibson v. State, 643 N.E.2d 885, 888 (Ind. 1994).
Because it permitted the State to convict Batchelor on a lesser mens rea,
Instruction 22 misapplied the felony-resisting statute and threatened to
relieve the State of its burden to prove the requisite-intent element in
violation of due process. See Metcalfe v. State, 715 N.E.2d 1236, 1237 (Ind.
1999) (“Any jury instruction suggesting a lesser mens rea [than the statute
requires] is inadequate.”); Winegeart v. State, 665 N.E.2d 893, 903 (Ind.
1996) (a jury instruction that relieves the State of its burden of proving
specific intent compromises the defendant’s rights under the Due Process
Clause of the Fourteenth Amendment).

   Second, Instruction 22 threatened to mislead the jury as an incorrect
statement of law. By emphasizing a factual scenario beyond the statutory
definition of fleeing—whether “reasonable” safety concerns justified
Batchelor’s delay in stopping—Instruction 22 minimized other potentially
relevant evidence for the jury to consider (e.g., driving speed or complete
stops at intersections).

   The Indiana Constitution protects the jury’s discretion in weighing all
the evidence presented at trial. Ind. Const. art. 1, sec. 19 (protecting the
jury’s right in all criminal trials “to determine the law and the facts”).
Instructions that emphasize certain facts while ignoring others can be
misleading and invade the jury’s province. See Ludy v. State, 784 N.E.2d
459, 461 (Ind. 2003).

   Because nothing in the resisting statute defines fleeing as unnecessarily
delaying a stop without a reasonable safety concern, Instruction 22
threatened to invade the jury’s province to decide the law and the facts.
See Ind. Const. art. 1, sec. 19; Keller v. State, 47 N.E.3d 1205, 1205 (Ind. 2016)
(“An instruction that invades [the jury’s] province by inappropriately



Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019           Page 13 of 21
emphasizing certain facts is erroneous and misleads the jury.”). Whether
there are sound policy reasons for including these factors in a “fleeing”
definition is a question best suited for the legislature. N.D.F. v. State, 775
N.E.2d 1085, 1088 (Ind. 2002) (“[W]e will not read into the statute that
which is not the expressed intent of the legislature.”). Until then, it’s for
the jury to decide whether there’s evidence of intentional fleeing.


   B. The jury charge provided adequate instructions on the
      correct statutory elements and standard of proof.
   Instruction 22, standing alone, threatened to relieve the State of its
burden to prove that Batchelor “knowingly or intentionally” fled. But the
jury, of course, heard not one but multiple instructions. And the trial court
expressly directed the jury “to consider all instructions together,” not to
“single out any certain sentence or any individual point or instruction and
ignore the others.” App. Vol. II, p.118; Tr. Vol. II, p.225. So, we now look
to those instructions to determine whether the jury received adequate
information on the correct statutory elements and standard of proof. See
Ramsey v. State, 723 N.E.2d 869, 872–73 (Ind. 2000); Yerden v. State, 682
N.E.2d 1283, 1286 (Ind. 1997).

   We first observe that the trial court, in both its preliminary and final
instructions, read to the jury the charging information which contained
the correct mens rea—that “Batchelor did knowingly or intentionally flee
from . . . a law enforcement officer.” App. Vol. II, p.119; Tr. Vol. II, p.225;
Tr. Vol. III, p.122.

   The court, in both its preliminary and final jury charges, also gave a
comprehensive instruction on the felony-resisting offense. This
instruction, virtually identical to Pattern Criminal Jury Instruction 5.3040,
enumerates each element of the crime on which the State carried the




Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019          Page 14 of 21
requisite burden of proof. 8 See 1 Ind. Pattern Jury Instructions: Criminal §
5.3040 (4th ed. 2018). These “elements” instructions “provide a jury with a
roadmap to guide decision-making” and are “particularly vital to a jury’s
ability to understand and apply the law to the facts.” LaPorte Cmty. Sch.
Corp. v. Rosales, 963 N.E.2d 520, 524 (Ind. 2012). Instruction 22, by contrast,
is merely a “supplemental, definitional instruction” which attempts—
albeit inaccurately—to explain the term “fleeing” as it applies to this case.
See id. To the extent that language in Instruction 22 contradicts language in
the “elements” instruction, the latter (read twice to the jury) outweighs the
former (read only once to the jury).




8Indiana Pattern Criminal Jury Instruction 5.3040 delineates the category of offense—from
Class A misdemeanor to Level 2 felony—to parallel the resisting-by-fleeing statute. Here, the
Court of Appeals tailored the Pattern Instruction to reflect the Level-6 felony charge:
    The crime of Resisting Law Enforcement is defined by law as follows:
    A person who knowingly or intentionally flees from a law enforcement
    officer after the officer has, by visible or audible means, including the
    operation of the law enforcement officer’s siren or emergency lights,
    identified himself and ordered the person to stop, commits Resisting Law
    Enforcement, a Class A Misdemeanor. The offense is a Level 6 Felony if the
    person uses a vehicle to commit it.
    Before you may convict the Defendant, the State must have proved each of
    the following beyond a reasonable doubt:
           1.   The Defendant;
           2.   Knowingly or intentionally;
           3.   Fled from Deputy James A. Switzer, a law enforcement
                officer;
           4.   After Deputy James A. Switzer had, by visible or audible
                means, including the operation of the law enforcement
                officer’s siren and/or emergency lights, identified himself
                and ordered the Defendant to stop; and
           5.   The Defendant used a vehicle to commit the offense.
    If the State failed to prove each of these elements beyond a reasonable
    doubt, you must find the Defendant not guilty of Resisting Law
    Enforcement, a Level 6 felony, as charged in Count 1.
App. Vol. III, p.55.



Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019                      Page 15 of 21
   Preliminary Instructions 9 and 10 emphasized the State’s burden,
noting that “the State must prove the defendant guilty of each element of
the crime charged, beyond a reasonable doubt” and that it “is not enough
for the State to show that the Defendant is probably guilty.” Tr. Vol. II, pp.
228–29. The trial court repeated this directive to the jury in its final
instructions, preceded by a definition of the terms “knowingly” and
“intentionally.” Tr. Vol. III, p.126. Notably, the jury received no similar
instruction defining the term “negligently.” And the lack of elaboration on
this concept “made it even less likely that the jury was focused on it.”
Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App. 2009), trans. denied.

   To the extent that Instruction 22 invaded the province of the jury by
minimizing potentially relevant evidence of Batchelor’s intent to flee, we
point to Preliminary Instruction 2 and Final Instruction 1: “Under the
Constitution of Indiana, [the jury has] a right to determine both the law
and the facts.” Tr. Vol. II, p.224; Tr. Vol. III, p.121. Following this directive,
the court informed the jurors that they were “the exclusive judges of the
evidence.” Tr. Vol. II, p.229; Tr. Vol. III, p.129. The court further directed
the jury to weigh and consider “all the evidence” in deciding Batchelor’s
guilt, and that the “quantity of evidence . . . need not control [their]
determination of the truth.” Tr. Vol. II, pp. 229, 230; Tr. Vol. III, pp. 127,
130.

    Finally, we note that, while the State highlighted Instruction 22 in its
closing arguments, the court expressly told the jury that these
“statements” or “arguments are not evidence.” Tr. Vol. II, p.231; Tr. Vol.
III, p.130. And to the extent that the jury ignored this instruction, we point
out that Batchelor himself argued in closing that the spot where he finally
stopped was “a good and safe place to pull over.” Tr. Vol. III, p.109.

    Given this context, we find the jury charge as a whole sufficiently
informed the jury of the proper mens rea which the State was required to
prove beyond a reasonable doubt. See Ramsey, 723 N.E.2d at 872–73 & n.4
(finding instructional error on mens rea cured by jury charge even when
defendant’s intent was “squarely at issue”). The jury charge also cured
Instruction 22’s impermissible emphasis on certain evidentiary facts. See
id.



Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019           Page 16 of 21
   C. The instructional defect was harmless.

   Even if Batchelor had objected to Instruction 22 at trial, we conclude
that his conviction was “clearly sustained by the evidence and the jury
could not properly have found otherwise.” Dill v. State, 741 N.E.2d 1230,
1233 (Ind. 2001). That is, the instructional error was harmless. See id.; App.
R. 66(A).

   Here, the State presented uncontroverted evidence showing that
Batchelor knowingly fled. After ignoring the officer’s emergency lights
and siren, Batchelor continued driving for a minute and thirty-eight
seconds through a quiet residential area. Even as other vehicles came to a
stop during this low-speed pursuit, Batchelor passed several well-lit spots
and side streets where he could have parked his truck. He then
demonstrated his intention not to comply with law enforcement by
fighting and injuring several officers. Rather than reveal Batchelor had
acted with simple negligence, the evidence—presented to the jury from
the deputy’s dashcam video—overwhelmingly shows that he knowingly
fled from law enforcement officers.

   This evidence, albeit circumstantial, was sufficient for the jury to have
found the knowledge element of the crime proven beyond a reasonable
doubt and sufficient enough to overcome the presumption of prejudice
that applies to our analysis of jury instructions for harmless error. Cf.
Kane, 976 N.E.2d at 1232–33 (holding evidence insufficient to overcome the
presumption of prejudice that applied to erroneous instruction on
accomplice liability for receiving stolen property when defendant had
previously stolen and pawned property, relied on her partner for
transportation, shared in his financial struggles, and spent time with him
in the home from which the property was taken).


III. Because of its potential to mislead the jury, we
     expressly disapprove of the Cowans instruction.
  The purpose of a jury instruction “is to inform the jury of the law
applicable to the facts without misleading the jury and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct verdict.”


Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019        Page 17 of 21
Campbell, 19 N.E.3d at 277 (internal quotation marks omitted) (emphasis
added). While the jury charge as a whole here met this objective, we
expressly disapprove of the specific Cowans instruction because of its
potential to confuse and mislead the jury. 9

   As dicta, the Cowans opinion had no binding effect on the trial court
here. See Koske v. Townsend Eng’g Co., 551 N.E.2d 437, 443 (Ind. 1990)
(holding that statements unnecessary in resolving the issues presented
“are not binding and do not become the law”). And even if it were central
to the court’s holding in Cowans, we have long held “that certain language
or expression” used by an appellate court “to reach its final conclusion” is
“not [necessarily] proper language for instructions to a jury.” Ludy, 784
N.E.2d at 462 (internal quotation marks omitted); see also State v. Fisk, 170
Ind. 166, 168, 83 N.E. 995, 996 (1908) (“Statements found in cases or text-
books, however correct in the connection where found, may not always be
given to jurors as propositions of law.”); Garfield v. State, 74 Ind. 60, 63–64
(1881) (same). This is especially true when, as here, the instruction is
rooted in reasoning found in a sufficiency-of-the-evidence case, see
Cowans, 53 N.E.3d at 544 (citing Woodward, 770 N.E.2d at 902), not an
appellate opinion approving a jury instruction, see McDowell v. State, 885
N.E.2d 1260 (Ind. 2008) (finding no appellate approval of jury instructions
in cases involving evidentiary claims); Dunlop v. State, 724 N.E.2d 592, 595
(Ind. 2000) (finding no intent “to create a trial standard for application by
juries” in cases articulating a rationale for evidentiary issues).

   We understand the State’s concern that this “places trial courts in an
untenable situation.” Pet. to Trans. at 9. Indeed, trial court judges speak to
not one but two audiences in giving instructions—the jury itself and the
appellate courts—with the latter often receiving priority to avoid reversal.
Fred H. Cate & Newton N. Minow, Communicating with Juries, 68 Ind. L.J.
1101, 1111 (1993); Nancy S. Marder, Bringing Jury Instructions into the




9Even the State, at oral argument, conceded that the challenged “instruction is more complex
than it needs to be.” Oral Arg. Video Tr. at 26:59–27:01. Indeed, its use in this case led one
panel of the Court of Appeals to find fundamental error when the trial court applied another
panel’s advisory dicta and used the Cowans instruction.



Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019                      Page 18 of 21
Twenty-First Century, 81 Notre Dame L. Rev. 449, 460 (2006). See also
Winegeart, 665 N.E.2d at 898 (acknowledging that most instructions used
by courts “have not been crafted” with jurors in mind but rather “to avoid
appellate reversal”). But this arrangement is no barrier to change. And
despite the imprimatur of appellate approval, it’s not beyond our orbit, as
the Court of last resort in Indiana, to disapprove of a jury instruction now,
especially when we never had a chance to review it to begin with. 10 See
App. R. 57(H) (specifying this Court’s “judicial discretion” in granting
transfer). To conclude otherwise would avoid our constitutional
supervisory responsibility “to assure that juries in criminal cases are
equipped with instructions that will allow them to understand and apply
correctly” the legal concepts before them. Winegeart, 665 N.E.2d at 902
(citing Ind. Const. art. 7, sec. 4).

   Going forward, trial courts should use Indiana Pattern Criminal Jury
Instruction 5.3040 for the resisting-by-fleeing offense. 11 And while counsel
may argue that a defendant’s actions are reasonable or unreasonable, it’s
ultimately for the jury to decide whether there’s evidence of knowing or
intentional fleeing under the statute. 12


Conclusion
  For the reasons specified above, we affirm the trial court’s conviction of
Batchelor for felony resisting. And because he fails to explain how the




10   The parties in Cowans did not seek transfer.
11   See, e.g., infra, n.8.
12Because Batchelor fails to articulate his mandatory-presumption argument on transfer
(focusing instead on the impermissible civil negligence standard in establishing the mens rea),
we decline to address that argument. Even if we were to analyze that claim, Instruction 22 is
not “cast in the language of command” as prohibited by the Due Process Clause of the
Fourteenth Amendment. Francis v. Franklin, 471 U.S. 307, 316 (1985). And the language used
throughout the court’s charge to the jury could not “reasonably have been understood as
creating a presumption that relieves the State of its burden of persuasion on an element of an
offense.” Id. at 315.



Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019                       Page 19 of 21
instructional error affected his felony-battery and misdemeanor-resisting
convictions, we summarily affirm those convictions.


Rush, C.J., and David, Slaughter, and Goff, JJ., concur.




Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019    Page 20 of 21
ATTORNEY FOR APPELLANT
Stacy R. Uliana
Bargersville, Indiana

ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana

Larry D. Allen
Stephen R. Creason
Andrew A. Kobe
Deputy Attorneys General
Indianapolis, Indiana




Indiana Supreme Court | Case No. 18S-CR-436 | March 18, 2019   Page 21 of 21
