David Cupello v. State of Indiana , 2015 Ind. App. LEXIS 144 ( 2015 )

Mar 11 2015, 10:29 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Deborah Markisohn Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
David Cupello, March 11, 2015
Appellant-Defendant, Court of Appeals Case No.
49A02-1406-CR-394
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy Jones, Judge
Appellee-Plaintiff The Honorable David M. Hooper,
Master Commissioner
Cause No. 49F08-1401-CM-3589
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
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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
1
The Castle Doctrine arises out of “the common law rule that ‘a man’s home is his castle,’ which gives him
the right to reasonably resist unlawful entry.” Barnes, 953 N.E.2d at 474.
2
The revisions to Indiana Code Section 35-41-3-2 were drafted by the Barnes v. State Subcommittee of the
Legislative Council. See Legislative Council Barnes v. State Subcommittee, Ind. Gen. Assembly,
http://www.in.gov/legislative/interim/committee/lcbs.html (last visited Jan. 28, 2015). The president pro
tempore of the Senate, Senator David Long, described the amendment, in part, as “reasserting the 150-year-
old law ensuring the right to defend yourself in your home.” David C. Long, Editorial, Legislature Provides
Significant Achievements, Indianapolis Star, Mar. 18, 2012, at B9.
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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
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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.
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[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.
3
On cross-examination, Constable Webb acknowledged that Cupello’s door, which opened inwards, would
not have struck him had he not crossed the threshold of the apartment.
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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.
4
Cupello also moved for a directed verdict, which the trial court denied.
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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
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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 complicated by the fact that, when the incident with Cupello
occurred, Constable Webb was off-duty, was working in his capacity as a
courtesy officer for Emerson Village, was responding to a call from Emerson
Village’s management, and apparently never identified himself, either verbally
or by appearance, as a law enforcement officer.
[16] Nevertheless, an off-duty police officer can perform his official duties, even
when responding to a private call. See Nieto v. State, 499 N.E.2d 280, 281-82
(Ind. Ct. App. 1986). Indeed, in Tapp v. State, 406 N.E.2d 296, 302 (Ind. Ct.
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App. 1980), we explained that “it is the nature of the acts performed and not
whether the officer is on or off duty, in or out of uniform, which determines
whether the officer is engaged in the performance of his official duties.” Thus,
“when a police officer, whether in uniform or not, takes it upon himself to
enforce the law in order to maintain peace and order for the benefit of the
public, the officer is performing official duties as a police officer.” Neito, 499
N.E.2d at 282. As such, despite the complications noted above, the State
asserts that Constable Webb acted as an officer, not as a private security agent,
because he responded to a complaint of intimidation in order “to keep the peace
and investigate a possibly criminal incident between Cupello and the apartment
staff.” Appellee’s Br. at 8.
[17] Although the State is correct that Constable Webb’s actions evince the
execution of the officer’s official duties, something more is required: a citizen
who encounters an off-duty law enforcement officer must have an objective
basis to determine that the officer is acting in his official capacity and not in a
private capacity. The holdings in Tapp and its progeny demonstrate this
principle.
[18] In Tapp, for instance, we upheld Tapp’s conviction for battery on a law
enforcement officer after Tapp had bitten Weisheit, “a plainclothes security
guard.” 406 N.E.2d at 297. Weisheit had approached Tapp after he had
observed her shoplift. In holding that Weisheit was engaged in his official
duties, we noted that he had “displayed his police badge and announced his
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status to [her5] and informed her that she was under arrest pursuant to the laws
of this state.” Id. at 302.
[19] Likewise, in Nieto we also upheld a conviction for battery on a law enforcement
officer. There, Officer Fourkiller responded to a private phone call to his home
from his friend Gomez regarding a domestic dispute between Gomez’s mother
and Nieto. Fourkiller responded in his personal vehicle and was dressed in
plain clothes, and Nieto struck him after Fourkiller “advised Nieto to calm
down and not hit the women anymore.” 499 N.E.d at 281. Although the facts
do not state that Fourkiller identified himself as an officer, Nieto “knew
Fourkiller was a police officer” and the reason for the officer’s presence. Id.[20] However, in City of Fort Wayne v. Moore, 706 N.E.2d 604 (Ind. Ct. App. 1999), a
negligent hiring and retention case, we affirmed the trial court’s determination
that Stanford, an off-duty officer with the City of Fort Wayne, had acted
outside the scope of his employment with the City. There, Stanford attacked
Moore, and, during the altercation, Stanford “identified himself as ‘an officer’”
but “never displayed a badge, did not mention the City of Fort Wayne, did not
handcuff Moore[,] and never informed Moore that he was under arrest.” Id. at
605. And Stanford drove “his personal vehicle and was not wearing a police
5
Weisheit stated, “I am a City Police Officer and you’re under arrest for shoplifting.” Tapp, 406 N.E.2d at
297.
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uniform or any other apparel that might alert a citizen that Stanford was a
police officer.” Id.[21] In other words, it is the State’s burden to prove by objective evidence that a
citizen who has encountered a law enforcement officer either knew or should
have known that he was dealing with an officer, a factual predicate that is
consistent with our law in other contexts. For example, subsection (a)(3) of our
resisting law enforcement statute requires the State to prove that a person fled
“after the officer has, by visible or audible means . . . identified himself or
herself and ordered the person to stop.” I.C. § 35-44.1-3-1(a)(3). And,
similarly, Indiana Code Section 9-30-2-2 requires an officer who makes an
arrest or issues an information and summons in connection with the operation
of a motor vehicle provide indicia to the operator of the vehicle that he is, in
fact, a law enforcement officer. That provision provides:
[a] law enforcement officer may not arrest or issue a traffic
information and summons to a person for a violation of an
Indiana law regulating the use and operation of a motor vehicle
on an Indiana highway or an ordinance of a city or town
regulating the use and operation of a motor vehicle on an Indiana
highway unless at the time of the arrest the officer is:
(1) wearing a distinctive uniform and a badge of authority;
or
(2) operating a motor vehicle that is clearly marked as a
police vehicle;
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that will clearly show the officer or the officer’s vehicle to casual
observations to be an officer or a police vehicle.[6]
Id.
[22] Thus, where the State seeks to prove that an off-duty law enforcement officer is
engaged in the execution of his official duties, it must satisfy a two part test: the
State must prove by objective evidence that (1) the nature of the acts performed
demonstrate that the officer sought to enforce the law to maintain peace and
order for the benefit of the public; and (2) the citizen knew or should have
known both that the person was an officer and that the officer was acting in his
official, and not his private, capacity. See, e.g., Tapp 406 N.E.2d at 297, 302;
Nieto, 499 N.E.2d at 282.
[23] We now apply this test and hold that, under our highly deferential standard of
review, the State met its burden here. The evidence most favorable to the trial
court’s judgment demonstrates that Constable Webb went to Cupello’s
apartment to respond to a complaint of intimidation, which may have been a
criminal act pursuant to Indiana Code Section 35-45-2-1. Thus, the State
proved that Constable Webb took it upon himself to enforce the law in order to
maintain peace and order.
[24] Moreover, although the record does not disclose whether Constable Webb wore
his uniform or otherwise objectively identified himself as a law enforcement
6
We also note that Indiana has criminalized false assertions of public authority. See I.C. § 35-44.1-2-6.
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officer, the evidence establishes that Cupello and Webb had dealt with one
another on a prior occasion. And, when Constable Webb confronted Cupello
on this occasion, Cupello told Constable Webb that he wished to press charges
against Amond for harassment. A reasonable inference from this evidence is
that Cupello knew that Constable Webb was both a law enforcement officer
and acting in his official capacity. The State, therefore, met its burden on the
second prong as well.
[25] Thus, we hold that the State presented sufficient evidence to prove that
Constable Webb was performing his official duties when he confronted
Cupello. We turn now to the questions of whether Cupello had a statutory
right to exclude Constable Webb from his home and whether Cupello used
reasonable force to do so.
Issue Two: The Castle Doctrine
[26] Cupello contends 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. Specifically, Cupello’s claim is that the State
presented insufficient evidence to rebut his affirmative defense to the State’s
allegation that he battered a law enforcement officer. We apply the same
standard of review to such challenges as we do to other challenges to the
sufficiency of the evidence. Murrell v. State, 960 N.E.2d 854, 857 (Ind. Ct. App.
2012). “A conviction must be affirmed if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a reasonable trier of
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fact to find the defendant guilty beyond a reasonable doubt. We consider only
the probative evidence and reasonable inferences supporting the judgment.” Id.[27] Indiana Code Section 35-41-3-2 provides:
(a) In enacting this section, the general assembly finds and
declares 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.[7] By reaffirming the long
standing right of a citizen to protect his or her home against
unlawful intrusion, however, the general assembly does not
intend to diminish in any way the other robust self[-]defense
rights that citizens of this state have always enjoyed. . . . The
purpose of this section is to provide the citizens of this state with
a lawful means of carrying out this policy.
***
(i) 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[.]
***
(j) Notwithstanding subsection (i), a person is not justified in
using force against a public servant if:
7
A constable is a public servant. I.C. § 35-31.5-2-195(a)(1).
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***
(4) the person reasonably believes the public servant is:
(A) acting lawfully; or
(B) engaged in the lawful execution of the public
servant’s official duties.
As stated above, our legislature enacted the relevant provisions of Indiana Code
Section 35-41-3-2 in response to our supreme court’s opinion on rehearing in
Barnes. We now apply that statute here.8
[28] The probative evidence and reasonable inferences supporting the judgment are
undisputed and lead unerringly to the conclusion that Constable Webb
unlawfully entered Cupello’s dwelling by placing his foot within the threshold
of the apartment door without lawful justification. As our supreme court
explained in Middleton v. State, 714 N.E.2d 1099, 1101 (Ind. 1999):
For purposes of the Fourth Amendment, . . . the threshold of a
home is the line that law enforcement officers cannot transgress
without judicial authorization. . . . [T]he Fourth Amendment
has drawn a firm line at the entrance to the house. Absent
exigent circumstances, that threshold may not be reasonably
crossed without a warrant.
8
Both Cupello and the State rely on self-defense cases that predate the amendments to Indiana Code Section
35-41-3-2. Thus, they dispute whether Cupello “1) acted without fault, 2) . . . was in a place where he had a
right to be, and 3) . . . was in reasonable fear of death or great bodily harm.” Appellant’s Br. at 14.
However, the statute itself provides a framework to analyze this case, independent from the elements of the
case law, which are not enumerated in the statute. Thus, we consider the statute’s requirements alone.
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And, in Indiana, “any breach of the threshold, however slight, by any part of
the body” constitutes criminal residential entry. Williams v. State, 873 N.E.2d
144, 148 (Ind. Ct. App. 2007); see I.C. § 35-43-2-1.5.
[29] Our jurisprudence regarding resisting law enforcement during an arrest
performed within the arrestee’s home also sheds light on what it means for an
officer to unlawfully enter another’s dwelling. See Harper v. State, 3 N.E.3d
1080, 1085 (Ind. Ct. App. 2014); Adkisson v. State, 728 N.E.2d 175, 178 (Ind. Ct.
App. 2000).9 In Adkisson, a police officer questioned the defendant about an
alleged battery. The officer approached her closed door, and, when she
answered, he
stood just outside Adkisson’s open doorway while he questioned
her, and Adkisson remained inside her apartment. . . . At some
point, Adkisson attempted to shut the door on [the officer], but
he prevented her from doing so by placing his foot in the
doorway. [The officer] then informed Adkisson that she was
being arrested for battery[10] and followed her into the residence.
As [the officer] entered her apartment, Adkisson pushed him and
began to run down the hallway. [The officer] followed Adkisson
9
The State contends that Harper and Adkisson, both of which deal with resisting law enforcement, should not
apply here because the resisting law enforcement statute requires that “the officer is lawfully engaged in the
execution of the officer’s duties,” I.C. § 35-44.1-3-1(a)(1) (emphasis added), while battery on a law
enforcement officer does not require the “lawful” execution of the officer’s duties, see I.C. § 35-42-2-
1(a)(1)(B). But, as the State acknowledges, Indiana Code Section 35-41-3-2(i)(2) allows the use of force to
prevent or terminate an unlawful entry by a public servant into one’s home. One is precluded from the use of
force if he believes that the officer is lawfully engaged in the execution of his official duty. See I.C. § 35-41-3-
2(j)(4). We, therefore, find Harper and Adkisson instructive.
10
The battery for which the officer arrested Adkisson was reported by her neighbors before the officer went
to her door and was independent from the closing of her door. See 728 N.E.2d at 176.
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and sprayed her with mace. Adkisson continued to struggle and
run from [the officer] until he had maced her three times. Being
helplessly subdued, [two officers] were able to handcuff her.
728 N.E.2d at 176-77.
[30] We reversed Adkisson’s conviction for resisting law enforcement and stated
that, although the officer “arguably had probable cause to believe that Adkisson
had committed battery” and, therefore, “the right to arrest her without a
warrant, . . . absent consent, the Fourth Amendment [nevertheless] requires
that . . . an officer may only enter a defendant’s home to make the arrest when
exigent circumstances exist that make it impracticable to obtain a warrant first.”
Id. at 177. Thus, we held that the officer had acted unlawfully when he entered
Adkisson’s home, see id. at 178, which meant that the State could not prove an
essential element of the crime, namely, that “the officer was lawfully engaged in
the execution of his duties as an officer,” id. at 177.11
[31] In this court’s recent opinion in Harper, we reached the same conclusion as in
Adkisson where officers had lied to obtain consent to enter the defendant’s home
in order to conduct a warrantless arrest. Harper, 3 N.E.3d at 1081. We equated
the officer’s “use of a ‘ruse’ to enter Harper’s home” with the “Adkisson’s
11
The court in Adkisson distinguished its holding from United States v. Santana, 427 U.S. 38, 40 (1976), which
upheld a warrantless arrest that began in a public space when the police shouted “police” but was completed
within the defendant’s home after he retreated indoors. 728 N.E.2d at 177-78. The situation here is also
unlike Santana. Constable Webb testified that he had arrested Cupello solely for battering him and that he
had not observed Cupello commit any other alleged crime.
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deputy’s decision to place his foot in Adkisson’s doorway to prevent her from
closing her door.” Id. at 1085.
[32] Here, as in Adkisson and Harper, Constable Webb did not have a warrant to
enter Cupello’s apartment, nor does any exception to the warrant requirement
apply. And while the officers in Adkisson and Harper had probable cause to
conduct a warrantless arrest, here, Constable Webb lacked probable cause to
invade Cupello’s residence in the first instance.12 Constable Webb had no
lawful justification for breaching the threshold of Cupello’s apartment, and, in
so doing, he was not lawfully engaged in the execution of his duties as an
officer. See Adkisson, 728 N.E.2d at 177.
[33] Thus, as a matter of law, Cupello was entitled to use reasonable force to
terminate Constable Webb’s unlawful entry and to prevent further entry by
Constable Webb into his home. See I.C. § 35-41-3-2(i)(2) To prevent entry into
his home, Cupello used reasonable force when he closed the door. Given that
Constable Webb had inserted his foot to prevent the door from closing,
Cupello’s natural response was to persist in attempting to close the door, and,
while several tries were required, his conduct to thwart the unlawful entry was
not disproportionate to the entry itself.
12
But even if Constable Webb had probable cause to arrest Cupello, which he clearly did not, the State has
not shown exigent circumstances that would have made it impracticable for Constable Webb to first obtain
an arrest warrant. Indeed, Constable Webb had time both to call for backup and to obtain a key to Cupello’s
apartment.
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[34] Given the undisputed evidence, the State attempts, as it did at trial, to negate
Cupello’s affirmative defense by arguing that the evidence supports an inference
that Cupello consented to Constable Webb’s entry into his home. Despite the
fact that Cupello testified that he did not give Constable Webb permission to
enter his home, the trial court accepted the State’s argument, finding that
Cupello acquiesced in Constable Webb’s entry by having a conversation with
Constable Webb at the threshold of his apartment. But we reject the notion that
a conversation held at the threshold of one’s home is, in itself, an invitation for
a law enforcement officer to enter the home. To the contrary, as our supreme
court has succinctly stated:
Opening the door to ascertain the purpose of an interruption to
the private enjoyment of the home is not an invitation to enter,
but rather is a common courtesy of civilized society. Attendant
to this courtesy is the ability to exclude those who are knocking
and preserve the integrity of the physical boundaries of the home.
Cox v. State, 696 N.E.2d 853, 858 (Ind. 1998). Had Cupello wished to invite
Constable Webb into his home, he would have made that invitation explicit,
and Constable Webb would not have needed to place his foot in the threshold
surreptitiously. The conversation at the door provided neither consent nor
acquiescence to Constable Webb’s entry.
[35] Nevertheless, the State argues that, under Indiana Code Section 35-41-3-2(j)(4),
Cupello lacked justification to use force because he had a reasonable belief that
Constable Webb was acting lawfully or engaged in the lawful execution of his
duties. But we have already established that Constable Webb acted unlawfully
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when he breached the threshold of Cupello’s dwelling. See, e.g., Adkisson, 728
N.E.2d at 177 (holding that the unlawful entry into a private dwelling is not a
lawful execution of an officer’s duties). Therefore, we reject the State’s
argument.
[36] Finally, the State argues that, because Cupello did not know Constable Webb
had placed his foot inside Cupello’s apartment, Cupello could not have had a
reasonable belief that force was necessary to prevent or terminate Constable
Webb’s entry. We cannot agree. Cupello merely attempted to end the
conversation with Constable Webb by closing the door. However, when he
tried to close the door, he discovered that Constable Webb had obstructed the
path of the door with his foot and that the door would not close. At this point,
Constable Webb’s foot became stuck, and he began to resist the door. Thus,
Cupello began to struggle against Constable Webb, and Cupello slammed the
door two more times, harder than in his first attempt. In other words, Cupello
discovered Constable Webb’s unlawful entry when he first attempted to close
the door and, after two more attempts, was able to terminate the unlawful entry
into his dwelling. Constable Webb had entered Cupello’s apartment without
consent, probable cause, reasonable suspicion, or exigent circumstances.
Because Constable Webb resisted Cupello’s subsequent attempts to close the
door, Cupello had a reasonable belief that force was necessary to terminate
Constable Webb’s unlawful entry into his apartment.
[37] We hold, therefore, that the State presented insufficient evidence to rebut
Cupello’s affirmative defense. Again, the probative evidence is undisputed.
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The placement of Constable Webb’s foot inside the threshold of the apartment
door was an unlawful entry by a public servant into Cupello’s dwelling, and
Cupello exercised his statutory right under Indiana Code Section 35-41-3-
2(i)(2)—which reaffirmed that the Castle Doctrine is an affirmative defense to
the crime of battery on a law enforcement officer—to use reasonable force both
to terminate that entry and to prevent further access to his home. Cupello used
reasonable force by closing his door. Thus, as a matter of law, the facts do not
support a conviction for battery on a law enforcement officer.
[38] Reversed.
Bradford, J., concurs.
Mathias, J., concurs with separate opinion.
Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015 Page 21 of 25
IN THE
COURT OF APPEALS OF INDIANA
David Cupello,
Appellant-Defendant,
v. Court of Appeals Case No.
49A02-1406-CR-394
State of Indiana,
Appellee-Plaintiff
Mathias, Judge, concurring
[39] I fully concur in the majority’s holding that Cupello exercised reasonable force
under Indiana Code section 35-41-3-2(i)(2) to prevent or terminate Constable
Webb’s unlawful entry into Cupello’s home.
[40] I find it especially disturbing that Constable Webb freely admitted that it was
his “standard practice” to place his foot just inside the threshold of the door
when talking to someone, to “to keep them from slamming the door in [his]
face.” Tr. p. 15. As the majority notes, without a warrant, this is an
unconstitutional entry into the home, see Middleton, 714 N.E.2d at 1101, and
arguably criminal residential entry, see Williams, 873 N.E.2d at 148, I.C. § 35-
43-2-1.5. However rude it might be to do so, a private citizen has a right to
Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015 Page 22 of 25
close his or her door on any unwelcome visitor, including a police officer,
unless the officer has a warrant.
[41] I also concur with the majority’s conclusion that, under the particular facts and
circumstances of this case, the trial court, as the trier of fact, could reasonably
conclude that Constable Webb was engaged in the execution of his official
duties.
[42] However, despite my concurrence with this conclusion, I would note that
confrontations such as the one that occurred in this case—where a citizen
encounters an off-duty law enforcement officer working in the private sector but
acting in his official capacity—are fraught with ambiguity and room for
misunderstanding. See generally Patricia Kubovsak Golla, Annotation,
Performance of Public Duty by Off–Duty Police Officer Acting as Private Security
Guard, 65 A.L.R.5th 623 (1999).
[43] For the benefit of both law enforcement officers and citizens, the General
Assembly should consider clarifying what easily visible and audible indicia are
required to place a citizen on notice that he is dealing with an off-duty law
enforcement officer who is, nevertheless, acting in his official, and not his
private, capacity, as the legislature has already done in Indiana Code section
35-44.1-3-1(a)(3) (resisting law enforcement officers) and section 9-30-2-2 (when
a law enforcement officer may make a traffic stop and issue citations). Such
indicia might include wearing a standardized vest or uniform and/or displaying
a badge and audibly notifying the citizen of his public authority.
Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015 Page 23 of 25
[44] Likewise, the General Assembly should consider the clearly intended and
confusing appearance of private security personnel dressed in uniforms of the
same color, and with identification patches that are the nearly the same, as
those worn by sworn officers, as it has done with its strict limitation of blue and
red emergency lighting on private vehicles. See Ind. Code § 9-21-7-10 (providing
that a person in a non-emergency vehicle may not operate a vehicle with a lamp
that displays a red, red and white, or red and blue signal). One need only drive
in downtown Indianapolis during the afternoon rush hour to witness such
private security personnel routinely stopping traffic with the legal right of way
on busy public streets and highways for the benefit of private parking facility
owners. These persons do this without any apparent statutory authority, 13 and
perhaps even commit an infraction when they do so.14
[45] Without such careful consideration and differentiation by the General
Assembly, Hoosiers have a right to wonder precisely who has been invested
with the public authority to regulate civil society, and to resent the instances
13
As I noted in Key v. Hamilton, 963 N.E.2d 573, 588 (Ind. Ct. App. 2012), trans. denied, drivers are required
to obey only the signals of certain, authorized persons, i.e., a police officer directing traffic and a flagman in a
construction zone. See Ind. Code § 9-21-8-56 (“It is unlawful for a person to knowingly fail to comply with a
lawful order or direction of a law enforcement officer invested by law with authority to direct, control, or
regulate traffic”); Ind. Code § 9-21-8-56 (making it a criminal offense to “recklessly fail[ ] to obey a traffic
control device or flagman ... in the immediate vicinity of a highway work zone when workers are present[.]”).
I am unaware of any similar statutory authority concerning private security guards.
14
See Ind. Code § 9-21-17-5 (“A pedestrian may not suddenly leave a curb or other place of safety and walk
or run into the path of a vehicle that is so close as to constitute an immediate hazard.”); Ind. Code § 9-21-17-
24 (“A person who violates this chapter commits a Class C infraction.”).
Court of Appeals of Indiana | Opinion 49A02-1406-CR-394| March 11, 2015 Page 24 of 25
where government has apparently delegated public authority to private security
for purely private purposes and gains.
[46] Subject to these additional public policy concerns, I fully concur in the
majority’s decision.
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