Christopher Cowans v. State of Indiana , 2016 Ind. App. LEXIS 124 ( 2016 )

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