Cupello v. State

27 N.E.3d 1122

David CUPELLO, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1406–CR–394.

Court of Appeals of Indiana.

March 11, 2015.

Deborah Markisohn, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Eric P. Babbs, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Opinion

NAJAM, Judge.

[1] In Barnes v. State, 953 N.E.2d 473, 474–75 (Ind.2011), our supreme court held on rehearing that “the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer.”¹ In so holding, the Barnes court noted that “[t]he General Assembly can and does create statutory defenses to the offenses it criminalizes, and the crime of battery against a police officer stands on no different ground. What the statutory defenses should be, if any, is in its hands.” Id. at 475.

[2] In its legislative response to Barnes, the General Assembly found and declared that “it is the policy of this state to recognize the unique character of a citizen's home and to ensure that a citizen feels secure in his or her own home against unlawful intrusion by another individual or a public servant. ” Ind.Code § 35–41–3–2(a) (emphasis supplied).²

[3] In this case of first impression, David Cupello appeals his conviction, following a bench trial, for battery on a law enforcement officer, as a Class A misdemeanor. We address two issues presented for our review:

1. Whether the State presented sufficient evidence that an off-duty constable was engaged in the performance of his official duties to support Cupello's conviction.

2. Whether the State presented sufficient evidence to overcome Cupello's affirmative defense, namely, that he had a statutory right to use reasonable force to exclude a law enforcement officer who had unlawfully entered his dwelling.

[4] We first hold that the State presented sufficient evidence that the off-duty constable, Robert Webb, was engaged in the performance of his official duties. However, we also hold that, under the statute enacted by our legislature in response to Barnes, the Castle Doctrine is an affirmative defense to the crime of battery on a law enforcement officer when that officer has unlawfully entered the person's dwelling. And we hold that, on the facts of this case, Cupello exercised reasonable force under Indiana Code Section 35–41–3–2(i)(2) to prevent or terminate an unlawful entry by a public servant into his home. Thus, we reverse Cupello's conviction.

Facts and Procedural History

[5] On January 23, 2014, Cupello had a telephone conversation with a staff member of Emerson Village Apartments (“Emerson Village”) in Indianapolis, where he resided, which ended when Cupello hung up on the staff member. In order to “find out what the issue was,” Emerson Village dispatched John Lloyd, the office manager, and Christopher Amond, a maintenance technician, to Cupello's apartment. Tr. at 6. But, before they arrived, Lloyd and Amond encountered Cupello in the second-floor hallway that led to his apartment. When Cupello saw Lloyd and Amond, he cursed at them and threatened to call the police. In response, Lloyd and Amond left, and Amond called Constable Webb, an off-duty Pike Township Constable whom Emerson Village employed part time as a “courtesy officer.” Id. at 10. As a courtesy officer, Constable Webb took calls on the property, resolved any issues reported by the office, performed random patrols, and locked the laundry room and pool.

[6] Amond reported to Constable Webb that Cupello “had been verbally intimidating,” id. at 11, and, thus, Constable Webb went to Cupello's apartment to investigate “reports of intimidation,” id. at 13. Constable Webb knocked and Cupello opened the door. The record does not disclose whether Constable Webb identified himself as a Pike Township Constable or wore his Pike Township uniform, but Constable Webb and Cupello had encountered each other on a prior occasion.

[7] When Cupello opened the door, without Cupello's knowledge or consent, Constable Webb placed his foot just inside the threshold of the door, which opened inwards toward the interior of the apartment. Although Constable Webb did not have a warrant to enter Cupello's apartment, his standard practice is to situate his foot in this way “to make sure [he] can talk to [people] and to keep them from slamming the door in [his] face.” Id. at 15. While standing at the door, Constable Webb questioned Cupello about the incidents with Emerson Village's staff members, and Cupello complained to Constable Webb that Amond had repeatedly harassed him by revving his vehicle's engine whenever he drove past Cupello's apartment. Cupello stated that he wanted to press charges, but Constable Webb explained that Cupello could not do so “for just revving your motor.” Id. at 12.

[8] When Constable Webb told Cupello that he could not press charges against Amond, Cupello became upset, ended the conversation, and, simultaneously, slammed the door to his apartment. Because Constable Webb had placed himself inside the threshold, the door struck Constable Webb in his foot, shoulder, and head.³ After the first slam of the door, Constable Webb began to push back against the door in an effort to free his foot, which was stuck, and Cupello continued to attempt to shut his door. In doing so, he slammed it two more times in rapid succession and harder than his first effort. The door struck Constable Webb both times, but Cupello managed to close it on the third attempt. After the second contact with the door, Constable Webb told Cupello that he was under arrest for battery on an officer, and, once the door had closed, Constable Webb demanded that Cupello open the door so that Constable Webb could arrest him.

[9] When Cupello refused to open the door, Constable Webb called for a backup officer and called the Emerson Village office for a key to Cupello's apartment. Then, without a warrant, Constable Webb and the backup officer unlocked Cupello's door with the key, entered his apartment, and arrested him. Constable Webb arrested Cupello solely for hitting him with the door. Constable Webb did not witness the commission of any other alleged crime. That same day, the State charged Cupello with battery on a law enforcement officer, as a Class A misdemeanor.

[10] The trial court held Cupello's bench trial on May 12, 2014. At trial, Cupello argued in defense⁴ of the charges (1) that Constable Webb was not acting in his capacity as a law enforcement officer but, instead, was “acting in his capacity as an apartment complex employee, as the courtesy officer responding to an apartment issue”; and (2) that the placement of Constable Webb's foot inside the threshold of the door constituted an unlawful entry of his dwelling, and, therefore, Cupello had a statutory right to use reasonable force against Constable Webb to terminate the entry into his home. Id. at 19. The trial court disagreed with Cupello and entered findings that (1) “[Constable Webb] was called because of complaints on [Cupello's] behavior,” id. at 49; and (2) because Cupello and Constable Webb had a “consensual encounter” at the threshold of the apartment, Cupello “acquiesced in [Constable Webb's] presence [in] the door frame.” Id. at 23, 29, 50. Thus, the court found that Constable Webb had acted in his capacity as a law enforcement officer and that Cupello had consented to Constable Webb's entry, which made the entry lawful. The court, therefore, convicted Cupello as charged and sentenced him to 365 days in Marion County Jail, with 361 days suspended. This appeal ensued.

Discussion and Decision

[11] Cupello alleges two errors. First, he contends that the State presented insufficient evidence to support his conviction because it did not prove that Constable Webb was “engaged in [his] official duty” but, rather, was engaged only in his obligations as a courtesy officer for Emerson Village. I.C. § 35–42–2–1(a)(1)(B). Second, Cupello asserts that, even if Constable Webb was engaged in his official duties as a law enforcement officer, Indiana Code Section 35–41–3–2(i)(2) gave him the right to use reasonable force to prevent or terminate Constable Webb's unlawful entry into his dwelling. We address each argument in turn.

Issue One: Official Duties

[12] Cupello first contends that the State failed to prove that, when he encountered Constable Webb at his door, Constable Webb was engaged in the performance of his official duties, which is a prerequisite to the crime of battery on a law enforcement officer. See I.C. § 35–42–2–1(a)(1)(B). Thus, Cupello argues that the State presented insufficient evidence to support his conviction.

[13] Our standard of review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind.2000).

In reviewing the sufficiency of the evidence, we examine only the probative evidence and reasonable inferences that support the verdict. We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Pillow v. State, 986 N.E.2d 343, 344 (Ind.Ct.App.2013) (citations omitted) (internal quotation marks omitted).

[14] Further, Indiana Code Section 35–42–2–1 states:

(a) A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a Class B misdemeanor. However, the offense is:

(1) a Class A misdemeanor if:

* * *

(B) it is committed against a law enforcement officer ... while the officer is engaged in the execution of the officer's official duty[.]

[15] Although a constable is a law enforcement officer, see I.C. § 35–31.5–2–185(a)(1), this case is...