                                                                                FILED
                                                                            Apr 27 2016, 8:25 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                          Gregory F. Zoeller
Marion County Public Defender Agency                       Attorney General of Indiana
Indianapolis, Indiana
                                                           Justin F. Roebel
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Christopher Cowans,                                        April 27, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A05-1508-CR-1196
        v.                                                 Interlocutory Appeal from the
                                                           Marion Superior Court
State of Indiana,                                          The Honorable Helen W. Marchal,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           49G15-1412-F6-53936



Baker, Judge.




Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016                           Page 1 of 12
[1]   Christopher Cowans appeals his conviction for Level 6 Felony Resisting Law

      Enforcement.1 He argues that the trial court abused its discretion when it

      refused his tendered instruction on mistake of fact. Finding that Cowans’s

      belief is better characterized as a mistake of law than of fact, we affirm.


                                                      Facts     2




[2]   On December 4, 2014, around 7:45 p.m., an Indianapolis police officer was

      patrolling near the intersection of Raymond and Meridian Streets, in uniform

      and in a marked police car, when he saw a black truck with a temporary tag.

      He typed the tag number into his computer, and discovered that the tag was not

      on file. He decided to follow the truck so that he could reenter the number.


[3]   Cowans noticed that a police car had started following him, but he did not want

      to be followed. He thought that if he pulled through a gas station and came out

      the other side, the police car would continue on its original path and leave him

      alone. As part of his maneuver, however, Cowans ended up in the middle lane

      on Meridian going north. That lane was reserved for southbound traffic during

      that time of night. The officer saw Cowans commit this traffic violation and felt

      that Cowans was being purposefully evasive, so he turned on his flashing lights.




      1
          Ind. Code § 35-44.1-3-1(a)(3).
      2
       We heard oral argument in this case on April 4, 2016, in the University Center West building of the
      University of Southern Indiana in Evansville. We thank counsel for their able and informative oral
      advocacy.

      Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016                       Page 2 of 12
[4]   At first, Cowans pulled over to the side of the road. As the officer was filling

      out paperwork, Cowans started driving again. Cowans did not, however, begin

      a high-speed car chase; he drove below the speed limit and led the officer on a

      six-minute, three-mile “chase.” At one point, Cowans stopped at a red light,

      but then continued through the intersection while the light was still red.

      Around this time, Cowans held his cell phone out of his window. 3 After he

      turned onto Kentucky Avenue, Cowans found himself behind a long line of

      vehicles stopped at a red light. He put his truck into park, put both of his hands

      out of the window, and voluntarily surrendered himself. The officer noted that

      Cowans was cooperative and calm.


[5]   Cowans would later testify that he had recently seen several accounts on the

      news of police officers having violent encounters with unarmed Black males.

      When he saw the officer’s lights, Cowans said that he felt scared, and that he

      decided to go to a better-lit area before stopping, in case the officer did

      something to him. Cowans testified that he “saw it on the news” that citizens

      are allowed to drive to a well-lit area before stopping if they are in fear of their

      safety. Tr. p. 65. The officer who was following him, however, testified that

      Cowans drove past a well-lit overpass, a well-lit intersection at Harding Street, a

      well-lit intersection at Belmont Avenue, as well as Eli Lilly’s well-lit campus.

      Tr. p. 48-50.




      3
       Cowans says he did this because he had heard stories of police officers mistaking a suspect’s cell phone for a
      weapon.

      Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016                         Page 3 of 12
[6]   Cowans was charged with resisting law enforcement by fleeing, which becomes

      a Level 6 felony if done by vehicle. I.C. § 35-44.1-3-1(a)(3). At his June 17,

      2015, trial, Cowans tendered a jury instruction as to a “mistake of fact.” He

      characterized his belief “that people being stopped by police if they feared for

      their safety could drive till they found a public lighted place to surrender” as an

      honest and reasonable mistake of fact. Tr. p. 69-70. The State objected,

      arguing that this belief would not be a mistake of fact, but rather a mistake of

      law, and that the substance of Cowans’s argument was already addressed by the

      “knowingly” element in the resisting arrest charge. The trial court sided with

      the State, and denied Cowans’s mistake of fact instruction. Following a trial by

      jury, Cowans was found guilty as charged. The trial court sentenced him to 545

      days, with 90 days on home detention and 455 days on probation. Cowans

      now appeals.


                                    Discussion and Decision
[7]   Cowans has one argument on appeal: he argues that the trial court committed

      reversible error when it declined to issue his tendered mistake of fact

      instruction. It is within the sound discretion of the trial court to instruct a jury,

      and we review that decision for an abuse of discretion. Washington v. State, 997

      N.E.2d 342, 345 (Ind. 2013). To constitute an abuse of discretion, the

      instructions given must be erroneous, and the instructions taken as a whole

      must misstate the law or otherwise mislead the jury. Munford v. State, 923

      N.E.2d 11, 14 (Ind. Ct. App. 2010). In general, a defendant in a criminal case

      is entitled to have the jury instructed on any theory of defense that has some

      Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016   Page 4 of 12
       foundation in the evidence. Burton v. State, 978 N.E.2d 520, 525 (Ind. Ct. App.

       2012). On appeal, a trial court’s judgment may be affirmed on any basis

       apparent in the record, even if it is not the theory relied upon by the trial court.

       Benham v. State, 637 N.E.2d 133, 138 (Ind. 1994).


[8]    The mistake of fact defense has been codified by our General Assembly: it is “a

       defense that the person who engaged in the prohibited conduct was reasonably

       mistaken about a matter of fact, if the mistake negates the culpability required

       for commission of the offense.” Ind. Code § 35-41-3-7. A person invoking this

       defense must satisfy three elements: 1) the mistake was honest and reasonable;

       2) the mistake was about a matter of fact; and 3) the mistake negates the

       culpability required to commit the crime. Potter v. State, 684 N.E.2d 1127, 1135

       (Ind. 1997).


[9]    The trial court decided that the first of these elements was not met. Although it

       granted that Cowans could have honestly believed that he was entitled to

       continue driving to a better-lit area, the trial court concluded that this belief was

       not reasonable. While we believe the trial court reached the correct result, we

       prefer to focus on the second element. We find that the mistake Cowans alleges

       he made is a mistake of law, not fact.


[10]   It is well settled that ignorance of the law is no excuse for criminal behavior.

       Yoder v. State, 208 Ind. 50, 194 N.E. 645, 648 (1935). Cowans attempts to

       distinguish his argument from a mistake of law defense: his “defense was not

       that he was unaware he was required to stop when an officer commands . . . .


       Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016   Page 5 of 12
       His factual mistake was his delay in stopping and deciding to stop further down

       Raymond Street.” Appellee’s Br. p. 12.


[11]   A mistake of fact defense would be appropriate in this case if Cowans testified

       that he thought the flashing lights behind him were those of a tow truck, rather

       than police lights; or if he thought the police lights were directed at another

       vehicle rather than his own; or if he did not see the lights at all. But Cowans

       has testified throughout that he saw the police lights and knew that the officer

       wanted him to pull over. Assuming that Cowans made a mistake, it would be a

       mistake of law—he thought that there was a legal principle that gave him the

       right to drive to a location that he considered safer. A mistaken fact regarding

       what the law says is still a mistake of law. Thus, Cowans’s argument on appeal

       is unavailing.


[12]   But we would be remiss if we did not address some of the underlying issues of

       this case, which are likely to reoccur for other citizens of Indiana. Cowans is

       far from alone in his belief that motorists are allowed to drive to a safe location

       after being ordered to stop by flashing police lights. Although rare, it is not

       unheard of for a person to impersonate a police officer. See Jennie Runevitch,

       Another Police Impersonator Spotted in Central Indiana, WTHR (Oct. 31, 2015, 8:16

       PM), http://www.wthr.com/story/30356144/another-police-impersonator-

       spotted-in-central-indiana. Multiple news stories quote local Sheriffs or

       prosecutors recommending that drivers seek a safe location to pull over. See,

       e.g., Bob Kasarda, Prosecutor Drops Fleeing Charge in Disputed Arrest of Portage

       Nurse, THE TIMES OF NORTHWEST INDIANA (Apr. 6, 2015),

       Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016   Page 6 of 12
       http://www.nwitimes.com/ news/local/porter/prosecutor-drops-fleeing-

       charge-in-disputed-arrest-of-portage-nurse/article_e9e37d31-826b-5e5d-a322-

       44be031f7619.html (quoting the Porter County Sheriff’s Office as saying, “We

       would like to reiterate if you are ever being stopped by a vehicle that you do

       NOT believe is a police vehicle, then drive to a safe and well-lit area before you

       stop”). Internet commentary is almost unanimous in expressing a belief that

       citizens have this right. See, e.g., Gayle Laakmann McDowell, Comment to Are

       Felony Charges Appropriate for DelRea Good, the Indiana Woman Who Drove to a

       Parking Lot While Being Pulled Over for Speeding?, QUORA (Sep. 24, 2015),

       https://www.quora.com/Are-felony-charges-appropriate-for-DelRea-Good-

       the-Indiana-woman-who-drove-to-a-parking-lot-while-being-pulled-over-for-

       speeding (“On the contrary (based on the information reported), she should be

       applauded. The department should explain to the officer, and the other officers

       in the department, that people should do exactly what she did”).


[13]   Yet despite the fact that this belief is both common and sensible, we can find no

       express sanction for it in either the Indiana Code or case law. We have dealt

       with an argument similar to Cowans’s in Woodward v. State, 770 N.E.2d 897

       (Ind. Ct. App. 2002). In that case, Woodward drove roughly a mile to his

       residence while a police officer followed him with lights and sirens. Id. at 901.

       Woodward waited to pull over because he was “trying to rationalize why I

       would be pulled over,” and he wanted to find a well-lit place. Id. The police

       officer, however, testified that Woodward passed two gas stations, a Meijer

       store, and a McDonalds. Id. We recognized that Woodward did not drive over


       Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016   Page 7 of 12
       the speed limit or disobey traffic laws, but we could not “say that a person who

       has admitted to knowing that a police officer wishes to effectuate a traffic stop

       can, without adequate justification, choose the location of the stop.” Id. at 902

       (emphasis added). Because we must “be cognizant of the dangers that could

       await a police officer stopping where the citizen selects,” we affirmed

       Woodward’s conviction of resisting law enforcement by fleeing. Id.


[14]   We are not aware of any case that has elucidated the one qualification we

       granted to Woodward, namely, that a person with an “adequate justification”

       might have some discretion to choose the location of a stop. Clearly, it cannot

       be the case that a driver must slam his brakes and come to an immediate stop or

       else face felony prosecution. Moreover, if a police officer begins flashing her

       lights behind a vehicle that is driving in the middle of a ten-lane highway, the

       driver clearly must be given time and distance to make her way over to the side

       of the road.


[15]   The State argues that these concerns are entirely addressed by the “knowingly”

       element of the crime, which the jury was instructed on in this case. But this

       argument is belied by the closing argument made to the jury by the State:


               Ladies and gentlemen, it doesn’t matter whether or not he
               thought he could stop somewhere else. [It] doesn’t matter
               whether or not he thought that he could wait until he got to a
               safe place or delay his surrender or whatever words the Defense
               has used. You can’t. If a police officer orders you to stop, you
               have to stop. If you are running on the street and the police
               officer orders you to stop and he is running after you, you have to
               stop in your tracks. You don't get to run wherever you want to

       Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016     Page 8 of 12
                run. You have to stop there . . . . If he is in his vehicle and he has
                his lights and sirens going, that is an order to stop. You have to
                stop right there . . . . You have to stop when they tell you to stop.
                There is no provision, there is no defense, there is nothing in the
                law in the State of Indiana that says you get to decide where you
                stop. The only law that you will be given by the Judge and the
                Court here today is that you have to stop. That is all you have to
                do. It is very simple. And [Cowans] didn't do that.


       Tr. p. 85-86 (emphases added).


[16]   If a motorist on a ten-lane highway sees flashing lights, is she required to “stop

       in her tracks” to avoid committing a felony? If a motorist is aware that there

       are criminals impersonating police officers in the area, and sees flashing lights

       on an isolated road at night, is he required to “stop right there” to avoid

       committing a felony? It would be an intolerable state of affairs if basic common

       sense, not to mention the explicit advice of many police departments, turned

       ordinary citizens into felons.


[17]   The State’s focus on “knowingly” is misplaced; a person who seeks a well-lit

       area before stopping knows that he is doing so.4 Instead, the focus should be on

       the definition of “flee.” At closing argument, the State informed the jury that

       “in fact by the definition of fleeing as it is contained in the Indiana Code he did.




       4
         The State acknowledged as much in its closing: “We also know that Mr. Cowans knowingly did this. He
       admitted both on direct and on cross that he knew that the officer was behind him. He knew that he was the
       target of the officer and he knew that he did not pull over. Ladies and gentlemen, none of these elements are
       in contention. The State has proved its case completely.” Tr. 79.

       Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016                        Page 9 of 12
       He did flee. He didn’t stop.” Tr. 86-87. This information is incorrect—there is

       no definition of criminal flight in the Indiana Code.5


[18]   Black’s Law Dictionary (6th ed. 1990), defines “flee from justice” as


                Removing one’s self from or secreting one’s self within
                jurisdiction wherein offense was committed to avoid arrest; or
                concealing one’s self therein, with intent, in either case, to avoid
                arrest, detention, or punishment for some criminal offense.


       Id. at 639. And we have defined “flight” in the context of the resisting statute:

       “We conclude that ‘flight’ in this context should be understood to mean a

       knowing attempt to escape law enforcement when the defendant is aware that a

       law enforcement officer has ordered him to stop or remain in place once there.”

       Wellman v. State, 703 N.E.2d 1061, 1063 (Ind. Ct. App. 1998). In the context of

       using flight from a crime scene as evidence of guilt, our Supreme Court has said

       that “[f]light is a conscious, overt act, known and accepted to be a response to a

       consciousness of guilt in a person and a means of preventing apprehension and

       punishment.” Hoskins v. State, 441 N.E.2d 419, 427 (Ind. 1982).


[19]   What all these definitions make clear is that a person who drives to a location

       of greater safety for her or the officer, intending only to be in a location of




       5
         Indiana Code section 12-28-3-1 has a definition of “flight” and “fled,” but it is limited to that chapter, which
       deals with the extradition of persons with mental illness who have fled another state. Cowans did not object
       to this statement at trial and does not raise the issue on appeal, and so we do not have occasion to decide
       whether this statement would be reversible error. Nevertheless, we hope prosecutors will be more careful
       with their claims about what statutes say in the future.

       Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016                          Page 10 of 12
       greater safety, is not “fleeing” from the police. Such a person is not attempting

       to “avoid arrest,” or “escape law enforcement,” or “prevent apprehension and

       punishment.” Indeed, a person who seeks a well-lit area to stop, or who

       gradually slows down on a busy highway rather than slamming on his brakes,

       might facilitate the stop by making the stop safer for the officer. This is what

       we meant in Woodward when we referred to “adequate justification.” 770

       N.E.2d at 902.6


[20]   We believe that a defendant charged with resisting law enforcement by fleeing

       by vehicle would be entitled, if he so requested, to have a jury instruction

       regarding the definition of the word “flee.” This word is an element of the

       crime that the State is required to prove beyond a reasonable doubt. The

       definition would explain that a person who is attempting to escape police, or

       attempting to unnecessarily prolong the time before he is stopped, would be

       fleeing. The definition should also explain, however, 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. In short, the jury instruction would put the question of whether the

       driver had an “adequate justification” squarely before the factfinder.




       6
        The Woodward defendant did not have an adequate justification for prolonging his stop because, as the
       officer testified, he passed multiple well-lit and well-attended businesses that were safe places to stop.

       Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016                         Page 11 of 12
[21]   This is precisely where the question should be, as the determination requires

       consideration of myriad facts: how long the driver continued, the speed, the use

       of hazard lights, the location, the weather, the surroundings, the presence of

       bystanders, the availability of places to stop, the credibility of witnesses, etc.

       Juries are uniquely positioned to decide whether a driver was unnecessarily

       increasing the burden on police officers, or whether a driver was taking

       reasonable steps that common sense would dictate. Of course we remain

       “cognizant of the dangers that could await a police officer stopping where the

       citizen selects,” Woodward, 770 N.E.2d at 902, and so we reiterate that a driver

       does not have full discretion to choose to stop anywhere. But it would be

       equally absurd to hold that drivers have zero discretion to choose the location

       of a stop; whether the driver exercises that very limited discretion reasonably

       should be a question of fact for the jury.


[22]   The judgment of the trial court is affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1508-CR-1196 | April 27, 2016   Page 12 of 12
