FILED
                                                                   Oct 31 2016, 5:58 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Susan D. Rayl                                              Gregory F. Zoeller
      Indianapolis, Indiana                                      Attorney General of Indiana
      Michael Ray Smith                                          Lyubov Gore
      Fishers, Indiana                                           Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
           COURT OF APPEALS OF INDIANA

      Lance E. Brown,                                            October 31, 2016
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 89A01-1601-CR-128
              v.                                                 Appeal from the Wayne Superior
                                                                 Court
      State of Indiana,                                          The Honorable Charles K. Todd,
      Appellee-Plaintiff                                         Jr., Judge
                                                                 Trial Court Cause No.
                                                                 89D01-1412-F5-104



      Mathias, Judge.


[1]   Lance E. Brown (“Brown”) was convicted in Wayne Superior Court of

      battering a public safety officer, a Level 6 felony, by resisting the entry into his

      Richmond home by two officers (“the Officers”) of the Richmond Police

      Department (“RPD”). Brown appeals his conviction as unsupported by

      evidence sufficient to rebut his affirmative defenses of self-defense and defense
      Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016               Page 1 of 13
      of his dwelling, and challenges the trial court’s interpretation of applicable

      statutes.


[2]   We affirm.1


                                  Fa cts a nd Proce dural Posture

[3]   On December 23, 2014, Brown owned a home in Richmond, Indiana, which he

      was in the process of renovating. Brown kept a large stock of valuable material

      used in the renovation stored in his house and in a freestanding garage at the

      edge of his back yard. The neighborhood had a good deal of crime and poverty.

      Brown, having repelled several break-in attempts in the past, including one on

      the day in question, was wary of trespassers.


[4]   Across a narrow alley from Brown’s back yard, Savannah Moore (“Moore”)

      and Matt Smith (“Smith”) were renting a home together, the back yard of

      which faced Brown’s. They had recently moved in and not yet met Brown. On

      December 23, 2014, between 5:00 p.m. and 9:00 p.m., Moore was alone in her

      back yard, cleaning up trash scattered by her dogs. Moore noticed that Brown

      was observing her from his property across the alley. “Do you need

      something?” asked Moore. “Do you need something?” countered Brown.

      “No,” said Moore, and continued her work. Tr. p. 13.




      1
        We heard argument in this case on October 3, 2016, at Hamilton Southeastern High School in Fishers,
      Indiana. We thank our hosts, particularly Ms. Janet Chandler, for our warm welcome, and the students and
      faculty of Hamilton Southeastern for their attentiveness and interest.

      Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016                   Page 2 of 13
[5]   Hearing voices outside, Smith came out of the house and joined Moore, his

      girlfriend at the time, in the clean-up effort. Smith grew irritated at Brown’s

      surveillance. “What’s your problem, man?” Smith asked Brown. Id. at 14. A

      heated argument followed. Brown, unaware of Smith and Moore’s recent

      occupancy, accused the pair of trespassing to their property and his, which they

      denied.


[6]   “Come across the alley,” said Brown. “You want me to come across the alley?”

      asked Smith. “Yeah,” replied Brown, “I do. I’ve got something for you. I’ll

      blow your brains out.” Id. at 17. Alarmed, Moore told Brown she would call the

      police. “Go ahead,” Brown laughed. Id. at 32. Having reported several break-

      ins to the RPD without satisfying results, Brown had little expectation the

      department would respond.


[7]   During this confrontation, each side stayed on their respective properties.

      Brown never advanced toward Moore or Smith, or made any physically

      threatening gesture. However, Brown kept at least one hand in his pants pocket

      throughout. From this fact and from Brown’s threat, Moore suspected, but

      never observed, that Brown was concealing a gun as he spoke with her. As

      promised, Moore went inside with Smith and called the police.


[8]   Sometime after sunset, RPD Officer David Spradling (“Spradling”) responded

      to Moore’s report, first interviewing Moore and Smith at their home. Spradling

      heard from Moore that she had been threatened, that she was upset by Brown’s

      words, conduct, and demeanor, and that she suspected he had been armed


      Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016   Page 3 of 13
       during their confrontation. Spradling left Moore’s residence intending to hear

       Brown’s account and achieve a peaceful resolution to the dispute. By then, it

       was evening and very dark.


[9]    As he approached Brown’s front door, Spradling was joined by RPD Officer

       Jonathan Huth (“Huth”). Huth wore a body camera he had purchased privately

       and used on his own initiative. 2 The Officers stood on Brown’s unlit porch,

       Spradling in front and Huth behind, the only light coming from a table lamp in

       the living room of Brown’s home and the Christmas lights of neighboring

       homes. Spradling knocked on the front door without announcing himself.

       “What’s this guy’s deal?” Huth asked Spradling as they waited for Brown to

       receive them. State’s Ex. 1 00:21. Spradling briefly relayed to Huth the

       substance of Moore’s report, including her suspicion that Brown was armed.


[10]   Through Brown’s glass storm door and half-glass front door, Spradling

       observed Brown come down a flight of stairs while Huth scanned the area

       behind them. The stairs descended from right to left, from the Officers’

       perspective, and ended just a few feet from the front door. Brown’s right side

       was therefore hidden from the Officers’ view as he approached. “He’s got his

       hand behind his back,” Spradling told Huth. Id. at 00:32.




       2
         The body camera’s recording was played in open court at trial, admitted as State’s Exhibit 1, partly
       transcribed in the transcript, and is part of the record before us. References to the recording are made in terms
       of its internal chronology, as the camera’s time-and-date stamp is inaccurate. Because the scene is poorly lit
       and quickly became chaotic, the video portion of the recording is, for the most part, unhelpful. However, the
       trial court noted that it found the audio portion of the recording helpful to its decision.

       Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016                          Page 4 of 13
[11]   Brown opened the front door, holding open the storm door with his left hand

       while resting his right behind the door jamb, out of the Officers’ view. “What

       do you have behind your back there, sir?” asked Spradling. Id. at 00:39.

       “Nothing,” Brown replied. “It’s lying on the counter right now and it’s a

       .357”—a popular caliber of handgun. Id. at 00:42. “Why don’t you show me

       your hands,” said Huth, nearly before Brown had finished his sentence. Id. at

       00:46. Brown, without complying, began to reply, but Huth immediately

       interrupted him, his voice rising: “Hands up! Hands up! Hands up!” Id. at

       00:47. “My hands are quite visible,” Brown insisted. Id. at 00:50.


[12]   The Officers concluded that, by his refusal to show his right hand, Brown had

       criminally resisted law enforcement. Intending to arrest Brown for that offense

       but worried that he might draw a gun from his still hidden right hand, Huth

       drew his stun gun and fired. Seven seconds elapsed between Huth’s first

       command and the first stun gun shot. See id. at 00:53 (stun gun fired).


[13]   The stun gun did not have its desired effect. Brown remained standing and took

       a step away from the door. Brown then tried to close the door on the Officers as

       the Officers tried to push their way in. After a brief struggle, Brown was

       overpowered and the Officers won their way inside. Spradling, now behind

       Huth, drew his stun gun and fired—again to no effect. Huth looked to his left

       and saw Brown’s loaded .357 revolver, lying on a counter to the right of the

       front door, within Brown’s reach as he had stood in the doorway. Reaching for




       Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016   Page 5 of 13
       Brown to handcuff him, Huth was struck in the face by Brown. Huth struck

       him back.


[14]   Huth withdrew to radio for backup while Spradling moved up from behind him

       to arrest Brown himself. Brown lowered his shoulder into Spradling’s stomach

       and pushed him toward the door against a wall. Spradling felt Brown’s hands at

       his gun holster and yelled for assistance. Huth grabbed Brown and pulled all

       three men backward to the ground.


[15]   Once on the ground, Brown was pinned by Huth at the shoulders and by

       Spradling at the hips. The Officers struggled to handcuff Brown against his

       resistance. Spradling pushed his stun gun into Brown’s back and fired yet a

       third time, also with no effect. Huth struck Brown several times with the butt of

       his stun gun. Brown was then subdued and handcuffed. The melee had lasted

       approximately sixty seconds. “Would you care to explain to me what is going

       on here?” Brown asked. Id. at 02:55.


[16]   RPD officers responding to Huth’s call for backup arrived quickly. Huth and

       Spradling suffered two pairs of broken glasses, a broken ear piece, bruises, and

       cuts. Neither required medical attention. Brown was taken by ambulance to a

       local hospital and treated for lacerations to his face and head.


[17]   The next day, December 24, 2014, Brown was charged with battery on a public

       safety officer, a Level 6 felony, and disarming a public safety officer, a Level 5

       felony. Brown was not charged with resisting law enforcement.



       Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016   Page 6 of 13
[18]   At his October 26, 2015, bench trial in Wayne Superior Court, Brown raised the

       defenses of self-defense and defense of his dwelling to the battery charge. After

       the close of evidence, the trial court ordered briefing on the issues presented by

       Brown’s claims and took the matter under advisement. After two full weeks’

       consideration, on November 9, 2015, the trial court issued a written order

       containing its findings of fact and conclusions of law, specifically that the

       Officers had entered Brown’s home unlawfully but Brown had entered into

       combat with the officers, had not resisted with reasonable force, and was

       therefore not protected by the defenses raised.


[19]   These findings resulted in a judgment acquitting Brown of disarming but

       convicting him of battery. At Brown’s sentencing hearing on December 30,

       2015, the judge exercised his statutory discretion to sentence the Level 6 felony

       as a Class A misdemeanor, carrying a sentence of up to one year, rather than

       the higher, Level 6 felony range of six to eighteen months. Brown was

       sentenced to a one-year term, all suspended to probation except time served.


[20]   This appeal followed.


                                           Sta nda rd of Re vi e w
[21]   Under the facts and circumstances before us, the State bore the burden below of

       showing that the Officers’ intrusion into Brown’s privacy was reasonable. State




       Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016   Page 7 of 13
       v. Gerschoffer, 763 N.E.2d 960, 965 (Ind. 2002). In appealing3 from the trial

       court’s ruling that it was not, the State thus appeals from a negative judgment.

       Trotter v. State, 933 N.E.2d 572, 579 (Ind. Ct. App. 2010). A negative judgment

       will not be reversed on appeal unless contrary to law. Id. A judgment is contrary

       to law when the evidence is without conflict and all reasonable inferences lead

       to a conclusion contrary to that reached below. Id. Constitutionality of a search

       or seizure is reviewed de novo. J.K. v. State, 8 N.E.3d 222, 229 (Ind. Ct. App.

       2014).


                                         Di scussi on a nd De ci si on

[22]   By statute, a person is privileged to use reasonable force if he reasonably

       believes that the force is necessary to protect himself from the imminent use of

       unlawful force by police, prevent unlawful entry of his home by police, or

       terminate unlawful entry of his home by police. Ind. Code § 35-41-3-2(i)(1)–(2).

       These statutes were amended to privilege resistance against unlawful acts of

       public safety officers in response to our supreme court’s decision in Barnes v.

       State, 946 N.E.2d 572 (Ind. 2011). See Cupello v. State, 27 N.E.3d 1122, 1124

       (Ind. Ct. App. 2015).


[23]   At the outset it is therefore necessary to decide whether the Officers’ entry into

       Brown’s home was lawful. The trial court concluded it was not. We disagree.




       3
        Though the State does not in terms so designate itself, we regard it as a cross-appellant in light of its
       arguments inviting reversal of the trial court’s ruling on a potentially dispositive issue.

       Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016                           Page 8 of 13
[24]   The Indiana Constitution protects “[t]he right of the people to be secure in their

       persons [and] houses . . . against unreasonable . . . seizure . . .” Ind. Const. Art

       I, § 11. Although this wording is nearly identical to that of the Fourth

       Amendment to the federal constitution, Section 11 is interpreted and applied

       independently of the Fourth Amendment. Powell v. State, 912 N.E.2d 853, 863

       (Ind. Ct. App. 2009). Our supreme court has held that, because the protections

       of the federal and state constitutions are not co-extensive, Section 11 must

       supply the more protective standard. Shotts v. State, 925 N.E.2d 719, 726 (Ind.

       2010); see also Oregon v. Hass, 420 U.S. 714, 719 (1975) (federal constitution is

       the floor, not the ceiling, of individual rights). 4


[25]   In evaluating the lawfulness of a seizure, Indiana courts give Section 11 a

       liberal construction in favor of protecting individuals from unreasonable

       intrusions on privacy. Holder v. State, 847 N.E.2d 930, 940 (Ind. 2006). At the

       same time, however, our courts recognize that Hoosiers are concerned not only

       with personal privacy but also with safety, security, and protection from crime.

       Id. To these ends, some intrusions are tolerated. Id.


[26]   Under Section 11, the lawfulness of police conduct is reviewed for

       reasonableness under the totality of the circumstances. Moran v. State, 644




       4
         In addition, we note that the Fourth Amendment law of emergency is quite unsettled, see Sutterfield v. City of
       Milwaukee, 751 F.3d 542 (7th Cir. 2014), that the first-impression nature of the role of officer safety under
       these facts and circumstances was not recognized below, and that the arguments below and on appeal
       therefore have not provided our court with adequate consideration of the law in this context. For these
       reasons, and in view of the extremely fact-sensitive nature of such questions, we conclude that resolution of
       this appeal is more appropriate under Section 11.

       Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016                         Page 9 of 13
N.E.2d 536, 539 (Ind. 1994). Reasonableness here turns on the balance of three

       factors: the degree of concern, suspicion, or knowledge that a criminal violation

       has occurred; the degree of intrusion imposed by police on the person’s

       ordinary activities; and the extent of law enforcement needs. Litchfield v. State,

       824 N.E.2d 356, 362 (Ind. 2005).


[27]   Under the totality of the circumstances, we conclude that the Officers’ limited

       intrusion into Brown’s privacy was justified by the immediate, urgent need to

       protect themselves and members of the public from a man whom the Officers

       reasonably believed to be armed and dangerous.


[28]   As to the first Litchfield factor, while the facts as known to the Officers as they

       stood on Brown’s porch likely would not have given rise to a “crime” in the

       strict sense,5 the conduct threatened by Brown against Smith and Moore almost

       certainly would have been illegal if carried out, as an unreasonable use of

       deadly force in defense of property. Thus the degree of suspicion that Brown

       had threatened to commit a crime was quite high. See State v. Atkins, 834 N.E.2d
1028 (Ind. Ct. App. 2005) (emphasizing need for suspicion of criminality).


[29]   As to the second Litchfield factor, giving Brown a command which he was not

       free to disregard, using a stun gun, and finally arresting him in his home are




       5
         The State argues for the first time on appeal that the Officers had probable cause to arrest Brown for
       intimidation as defined under I.C. § 35-42-2-1. Even were we to consider this untimely argument, it would
       fail for lack of a prior lawful act for which retaliation was threatened, as required by the intimidation statute.
       See I.C. § 35-45-2-1(a)(2), (b)(1)(A); Roar v. State, 52 N.E.3d 940, 943 (Ind. Ct. App. 2016) (adopted and
       incorporated by Roar v. State, 54 N.E.3d 1001 (Ind. 2016)).

       Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016                          Page 10 of 13
       clearly “intrusive.” However, Brown freely and voluntarily answered the

       Officers’ knock at his door, willingly surrendering his privacy to whoever stood

       outside. Moreover, the Officers were careful in matching their escalating

       conduct to the escalating urgency of the situation confronting them. In a tense,

       uncertain situation which could have had fatal results, the Officers responsibly

       deployed less than lethal force. Thus their intrusion on Brown’s freely

       surrendered privacy was as narrow and as limited as the situation would allow.


[30]   The third Litchfield factor is decisive here, and has not been accorded adequate

       weight by Brown or by the court below. First, this court has repeatedly

       emphasized that “[o]fficer safety is always a legitimate concern.” State v. Atkins,

       834 N.E.2d 1028, 1033 (Ind. Ct. App. 2005) (emphasis added). See also, e.g.,

       Woodson v. State, 966 N.E.2d 780, 786 (Ind. Ct. App. 2012) (detention of

       suspects at gun point justified by “the obvious need to maintain officer safety”).

       It would be entirely unreasonable to require the Officers to turn their backs on a

       man whom they believed to be armed, who was totally noncompliant in

       response to their commands, and who had threatened just hours earlier to

       commit a horrific act of violence on two innocent neighbors.


[31]   Second, Brown’s refusal to submit to the Officers created an emergency to

       which the Officers were justified in responding. Holder v. State, 847 N.E.2d 930

       (Ind. 2006).6 In Holder, our supreme court held that it was reasonable for police



       6
         We use the ordinary word “emergency” in order to avoid the confusion surrounding the “exigent
       circumstances,” “emergency aid,” and “community caretaking” doctrines in the Fourth Amendment context.

       Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016               Page 11 of 13
       to enter a home from which they detected a strong smell of ether, consistent

       with the presence of a methamphetamine manufacturing lab on the property. In

       order to protect the public from the danger of imminent explosion, the Holder

       court held that it was reasonable under Section 11 for the police to enter a home

       to avert the danger posed by the emergency. 847 N.E.2d at 941.


[32]   Here, Brown’s conduct created a similar emergency. With the loaded revolver

       within Brown’s grasping distance, the Officers were mere moments away from

       a fatal encounter as they stood on Brown’s porch. This emergency was

       heightened by the possibility of mental instability evidenced by Brown’s

       irrational conduct and noted by Huth when he asked Spradling, “What’s this

       guy’s deal?” Brown could have defused the emergency created by his own

       conduct by simply complying with the Officers’ reasonable request to see his

       hands. Although Brown’s words indicated compliance, the Officers did not see

       and could not confirm compliance in the dark and were justified in taking steps

       to end the emergency themselves.


[33]   Third, Smith and Moore required the Officers’ protection as well. Given the

       possibility of Brown’s mental instability, neither the Officers nor Moore and

       Smith could feel certain that Brown would not escalate the situation further

       after the Officers left the scene.


[34]   Finally, a contrary holding would not serve our shared goal of community

       policing. See R.H. v. State, 916 N.E.2d 160, 268 (Ind. Ct. App. 2009) (Mathias,

       J., concurring) (“A healthy, civil society is most robust when it feels safe and


       Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016   Page 12 of 13
       when that feeling of safety is validated through interaction with vigilant and

       responsive law enforcement engaged in the important business of policing

       neighborhoods within a community.”). To require the Officers to turn their

       backs on an armed and potentially unstable man was not safe for the Officers,

       would not promote a feeling of safety in Brown’s small-town community, and

       would deprive innocents like Moore and Smith of the “vigilant and responsive

       law enforcement” which is a necessary condition of a healthy, civil society.


[35]   Under the totality of these specific facts and circumstances, we hold that the

       Officers’ conduct was reasonable and thus lawful. Accordingly, there is no need

       to reach the question, as the trial court did, of whether Brown acted with

       reasonable force in self-defense.


[36]   Affirmed.



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




       Court of Appeals of Indiana | Opinion 89A01-1601-CR-128 | October 31, 2016   Page 13 of 13