MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                 FILED
regarded as precedent or cited before any                                  Mar 25 2019, 9:52 am

court except for the purpose of establishing                                     CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Steven E. Ripstra                                        Curtis T. Hill, Jr.
Ripstra Law Office                                       Attorney General
Jasper, Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Andrew J. Stone,                                         March 25, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2611
        v.                                               Appeal from the Martin Circuit
                                                         Court
State of Indiana,                                        The Honorable Lynne E. Ellis,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         51C01-1801-F5-15



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2611 | March 25, 2019                      Page 1 of 9
                                          Case Summary
[1]   Andrew J. Stone was convicted of Level 6 felony resisting law enforcement and

      Level 5 felony battery resulting in bodily injury to a public-safety official. He

      now appeals, arguing that the State failed to rebut his Castle Doctrine

      affirmative defense. Stone, however, did not raise this affirmative defense at

      trial or establish a basis for it. Accordingly, we affirm his convictions.



                            Facts and Procedural History
[2]   On January 18, 2018, Major Thomas Burkhardt with the Martin County

      Sheriff’s Department was serving civil process near Doe Run, a subdivision in

      Shoals, when he passed Stone driving a truck with Isabella Goodpaster as his

      passenger. Major Burkhardt knew that Stone did not have a valid driver’s

      license and that Isabella had a protective order against him. Major Burkhardt

      continued serving process but radioed dispatch to confirm that Stone’s driver’s

      license was invalid and that the protective order was active. After confirming

      these things, Major Burkhardt contacted James Roush, the Sheriff of Martin

      County, and Sheriff Roush said he would look for Stone while Major Burkhardt

      finished serving process.


[3]   Sheriff Roush and Stone each lived in Doe Run. Planning to intercept Stone on

      his way home, Sheriff Roush parked his patrol car at the county highway

      garage, which is directly across from Doe Run. After waiting about an hour,

      Sheriff Roush decided to return to the jail. As Sheriff Roush was driving back,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2611 | March 25, 2019   Page 2 of 9
      Stone drove past him in a truck. Sheriff Roush completed a three-point turn,

      which took about fifteen to twenty seconds, so that he could pursue Stone.

      Once Sheriff Roush got turned around, he activated his emergency lights (he

      could not remember if he also activated his siren). Because of the time it took

      Sheriff Roush to turn around, he did not see Stone again until he was in the

      subdivision. That is, once Sheriff Roush turned onto Doe Run Lane, he was

      able to see Stone about a quarter of a mile away. Sheriff Roush “closed the

      distance” and was behind Stone as he turned into his driveway. Tr. p. 70.


[4]   Once Stone parked his truck, he “immediately” got out and started walking

      toward his house. Id. at 71. Sheriff Roush exited his patrol car and followed

      him. At one point, Stone looked back at Sheriff Roush, and Sheriff Roush said,

      “Andy, stop.” Id. Stone did not stop but rather continued walking toward his

      house, arriving there before Sheriff Roush could catch up to him. However,

      “before [Stone] could shut the door, [Sheriff Roush] slid in behind him.” Id. As

      Stone went to shut the door, Sheriff Roush “slammed [his] shoulder against the

      door and inserted [his] leg in the door to keep [Stone] from closing it.” Id. at

      72. After some back and forth at the door, Stone was finally able to shut it,

      injuring Sheriff Roush’s ankle in the process.


[5]   Sheriff Roush then waited for Major Burkhardt to arrive on the scene. During

      this time, Stone “popped his head out [of the door] every once in a while” and

      told Sheriff Roush “to get a warrant.” Id. at 73. Eventually Sheriff Roush and

      Major Burkhart “made entry” into Stone’s house and arrested him. Id. at 59.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2611 | March 25, 2019   Page 3 of 9
[6]   Thereafter, the State charged Stone with Level 6 felony resisting law

      enforcement (fleeing by using a vehicle) and Level 5 felony battery resulting in

      bodily injury to a public-safety official.


[7]   At a thirty-five-minute jury trial, see id. at 90, Major Burkhardt and Sheriff

      Roush were the only two witnesses to testify. During closing arguments, the

      prosecutor argued that Stone committed resisting law enforcement as follows:


              [Sheriff Roush] had his lights on . . . maybe had his siren on.
              Was clearly close enough towards the end for Mr. Stone to see
              what was going on, and it seems to me that it indicates that Mr.
              Stone knew that the Sheriff was back there and had his lights on,
              and as soon [as] he got out of the car [he] started heading to the
              house.


      Id. at 88. The prosecutor then argued that Stone committed battery resulting in

      bodily injury to a public-safety official as follows:


              And then he committed the battery by closing the door on the
              Sheriff. He just did. He didn’t want to deal [with] the Sheriff,
              and he closed the door on him, and he hit him. He touched him
              with that door.


      Id. Defense counsel responded to the prosecutor as follows:


              The resisting law enforcement with a vehicle, the Sheriff testified
              he turned his lights on, but didn’t even visually catch up with him
              for almost a quarter mile. When he did catch up to him, they
              were already at my client’s home, where he did stop. And as far
              as [the prosecutor] pointing out that my client immediately got
              out of his car as proof that he knew the Sheriff was behind him,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2611 | March 25, 2019   Page 4 of 9
               well, that’s what people do when they get to their house. They
               get out of their car, and they go inside. It doesn’t mean anything.


               The battery. I mean this is pretty simple. The Sheriff testified
               that he slid behind him as the door was closing. The door was
               already closing. My client had absolutely no intent in hitting the
               Sheriff. Absolutely none. The Sheriff put himself in that
               position. And as far as the back and forth once the Sheriff had
               his foot in the door, I think that’s a little overblown by [the
               prosecutor]. My client was merely keeping the door from
               opening, and the Sheriff was trying to get -- get the door to open.
               There was no back and forth, there was no battery. There was
               nothing.


       Id. at 90-91. Notably, Stone did not argue that he had the right to use

       reasonable force to resist Sheriff Roush’s unlawful entry into his home pursuant

       to the Castle Doctrine, which is codified at Indiana Code section 35-41-3-

       2(i)(2), or ask for such a jury instruction.


[8]    The jury found Stone guilty as charged, and the trial court sentenced him to an

       aggregate term of four years.


[9]    Stone now appeals his convictions.



                                 Discussion and Decision
[10]   Stone contends that there is “insufficient evidence to rebut the ‘Castle Doctrine’

       affirmative defense” to his conviction for battery resulting in bodily injury to a

       public-safety official. Appellant’s Br. p. 24. The Castle Doctrine is an

       affirmative defense to the crime of battery on a public-safety official when that

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2611 | March 25, 2019   Page 5 of 9
       official has unlawfully entered a person’s dwelling. Cupello v. State, 27 N.E.3d

       1122, 1124 (Ind. Ct. App. 2015). Our legislature codified the Castle Doctrine in

       the self-defense statute at Indiana Code section 35-41-3-2(i) as follows:


               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 . . . .


[11]   Stone concedes that he did not raise the Castle Doctrine as an affirmative

       defense at trial or request a jury instruction but claims that we should

       nevertheless address this issue under the fundamental-error doctrine.

       Appellant’s Br. p. 24 n.8. An error is fundamental, and thus reviewable on

       appeal, if it “made a fair trial impossible or constituted a clearly blatant

       violation of basic and elementary principles of due process presenting an

       undeniable and substantial potential for harm.” Durden v. State, 99 N.E.3d 645,

       652 (Ind. 2018) (quotation omitted). These errors create an exception to the

       general rule that a party’s failure to raise an issue at trial results in waiver of the

       issue on appeal. Id. This exception, however, is “extremely narrow” and

       encompasses only errors so blatant that the trial judge should have acted

       independently to correct the situation. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2611 | March 25, 2019   Page 6 of 9
[12]   There are two problems with Stone’s fundamental-error argument. The first

       problem is that Stone’s defense at trial was inconsistent with the Castle

       Doctrine affirmative defense. That is, the defense theory at trial was that “there

       was no battery” because Stone “had no idea” that Sheriff Roush was behind

       him when he shut the door.1 Tr. pp. 55, 91. In order for Stone to

       have raised the Castle Doctrine affirmative defense at trial, he should have

       acknowledged that he used reasonable force against Sheriff Roush, i.e., battered

       him, but argued that he was justified in doing so to prevent or terminate Sheriff

       Roush’s unlawful entry into his house. See Melendez v. State, 511 N.E.2d 454,

       457 (Ind. 1987) (“An affirmative defense admits all the elements of the crime

       but proves circumstances which excuse the defendant from culpability.”).

       Stone did the opposite. Because the defense theory at trial was that Stone did

       not do anything wrong, there was simply no basis in the record for this

       affirmative defense. Cf. Cupello, 27 N.E.3d at 1126 (in a case in which we

       reversed the defendant’s conviction for battery on a law-enforcement officer, the

       defendant argued at trial that “the placement of Constable Webb’s foot inside

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

       therefore, [he] had a statutory right to use reasonable force against Constable

       Webb to terminate the entry into his home”).




       1
        Stone also suggests that “[t]here is insufficient evidence to prove the elements of Battery upon Sheriff
       Roush,” Appellant’s Br. p. 24, but he does not further develop such an argument.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2611 | March 25, 2019                       Page 7 of 9
[13]   The second problem is that even if there was a basis in the record for the Castle

       Doctrine affirmative defense, Stone does not say what action the trial court

       should have taken. The fundamental-error doctrine encompasses only errors so

       blatant that the trial judge should have acted independently to correct the

       situation. Durden, 99 N.E.3d at 652. Stone does not say, for example, that the

       trial court should have sua sponte instructed the jury on the Castle Doctrine, or

       sua sponte entered judgment on the evidence, or sua sponte ordered a new trial.

       Because Stone did not establish a basis for the Castle Doctrine affirmative

       defense at trial or tell us what sua sponte action he thinks the trial court should

       have taken, he cannot avail himself of the fundamental-error doctrine on

       appeal.


[14]   Stone also argues that the evidence is insufficient to support his resisting-law-

       enforcement conviction because “[s]imply trying to close the door . . . does not

       constitute . . . Resisting” when the police unlawfully enter a dwelling.

       Appellant’s Br. p. 28. But this argument fails to recognize that Stone was

       charged with, and convicted of, resisting law enforcement for fleeing using a

       vehicle. This occurred before the incident at his front door. The State pointed

       out Stone’s mistake in its appellee’s brief, see Appellee’s Br. p. 29 (“Defendant

       cites to the incorrect statutory citation and language for resisting law

       enforcement.”), and Stone did not file a reply brief to respond to this argument.

       Stone does not raise any other sufficiency argument concerning this conviction,

       such as that the evidence is insufficient to prove that he knowingly or




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2611 | March 25, 2019   Page 8 of 9
       intentionally fled from Sheriff Roush in his truck. Stone’s sufficiency claim for

       his resisting-law-enforcement conviction thus fails.


[15]   Affirmed.

       Mathias, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2611 | March 25, 2019   Page 9 of 9
