Keith M. Brown v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 1, 2020
• Docket: 20A-CR-559
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 01 2020, 8:23 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Katelyn Bacon Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Keith M. Brown, September 1, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-559 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Angela Dow Appellee-Plaintiff Davis, Judge The Honorable Hugh Patrick Murphy, Magistrate Trial Court Cause No. 49G16-1903-F6-8094

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-559 | September 1, 2020 Page 1 of 8 Case Summary [1] Following a bench trial, Keith Brown appeals his conviction of Class A

misdemeanor resisting law enforcement, claiming that the State presented

insufficient evidence to convict him. Brown raises two issues, of which we find

the following dispositive: Did the State present sufficient evidence that the

officer was lawfully engaged in the execution of his duties when he entered

Brown’s home and arrested him?

[2] We reverse.

Facts & Procedural History [3] At around 10:00 p.m. on March 2, 2019, Indianapolis Metropolitan Police

Department (IMPD) Officers Kevin Tomes and Evan Davis were dispatched to

a home on North Sharon Avenue, later determined to be Brown’s residence.

The officers’ first contact with anyone at the scene was “with someone as they

were coming out of the back of the home.” Transcript at 17. The officers then

made contact with Brown at the front door. Brown was inside the home, with

the door open but behind the screen door, and the officers were on the front

porch. Brown was immediately “very belligerent” and “very aggressive” with

officers. Id. at 11, 18. The officers asked Brown to step onto the porch to speak

with them, out of the presence of juveniles inside, but Brown refused. Based on

their investigation at the scene, officers found probable cause to arrest Brown

apparently for a domestic incident involving his wife, K.B.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-559 | September 1, 2020 Page 2 of 8 [4] Officers spent some time asking Brown to come outside, in order to avoid the

arrest in front of the juveniles. Brown refused, and when the officers eventually

opened the screen door and attempted to go inside, Brown began to shut the

interior door on the officers. Officers Tomes and Davis, along with two or

three officers now on the scene, entered the home “in a line” or “stack.” Id. at

19. Once inside, officers ordered Brown to place his hands behind his back,

and he refused. The officers struggled to get control of Brown’s arms, and

Brown, along with some of the officers, fell to ground. The officers “forcibly

removed [Brown’s] arms from underneath his body” and placed them behind

his back and in handcuffs. Id. at 21.

[5] On March 3, 2019, the State charged Brown with six counts: Counts I, II, and

III alleged strangulation, domestic battery, and battery resulting in bodily injury

for acts committed against K.B.; Counts IV and V alleged battery and domestic

battery for acts committed against another individual in the household; and

Count VI alleged that Brown committed Class A misdemeanor resisting law

enforcement. In May and June 2019, Brown subpoenaed K.B. to give a taped

statement, and she did not appear on either occasion. On October 7, 2019, the

State dismissed all charges except the resisting law enforcement count.

[6] Brown waived his right to trial by jury, and the court held a bench trial on

January 27, 2020. Officers Tomes and Davis testified to the above facts

surrounding their interaction with Brown and his arrest. Brown testified in his

defense. He stated that he “greeted [the officers] at the door” and “let them

know their services . . . weren’t needed here.” Id. at 23. He described that

Court of Appeals of Indiana | Memorandum Decision 20A-CR-559 | September 1, 2020 Page 3 of 8 “[t]hey asked me if I would like to come outside a few times,” but he did not

want to go outside as he was not properly dressed and he felt they were “talking

just fine through the door.” Id. at 24. He stated that, at one point, he turned his

back to the door to speak to his son, “to ask him to get me a shirt and some

shoes because at that time I was gonna go outside because my wife was

outside,” and the officers “yanked the door open and tackled me.” Id. He

denied that he at any time used force against the officers.

[7] The trial court, after taking the matter under advisement, found Brown guilty

and sentenced him to one year, all suspended and no probation. Brown now

appeals. Additional facts will be provided below as necessary.

Discussion & Decision [8] Brown asserts that the State presented insufficient evidence to convict him.

When we review the sufficiency of the evidence, we neither reweigh evidence

nor judge witness credibility. Tyson v. State, 140 N.E.3d 374, 377 (Ind. Ct. App.

2020), trans. denied. We consider only the evidence and reasonable inferences

most favorable to the verdict and will affirm the conviction unless no

reasonable factfinder could find the elements of the crime proven beyond a

reasonable doubt. New v. State, 135 N.E.3d 619, 625 (Ind. Ct. App. 2019).

Reversal is appropriate only when reasonable persons would not be able to form

inferences as to each material element of the offense. Tyson, 140 N.E.3d at 377.

[9] To convict Brown of Class A misdemeanor resisting law enforcement, the State

was required to show that he knowingly or intentionally forcibly resisted,

Court of Appeals of Indiana | Memorandum Decision 20A-CR-559 | September 1, 2020 Page 4 of 8 obstructed, or interfered with a law enforcement officer “while the officer [wa]s

lawfully engaged in the execution of the officer’s duties.” Ind. Code § 35-44.1-

3-1. As our Supreme Court has observed, “this ‘seemingly simple statute . . .

has proven to be complex and nuanced in its application.’” Harper v. State, 3

N.E.3d 1080, 1083 (Ind. Ct. App. 2014) (quoting Walker v. State, 998 N.E.2d

724, 726 (Ind. 2013)).

[10] On appeal, Brown concedes that the officers had probable cause to arrest him

but asserts that they could not enter his home to do so without the presence of

exigent circumstances. He claims that because the State failed to show the

existence of any exigent circumstances, Officer Tomes was not lawfully

engaged in the execution of his duties when he entered Brown’s home.

Therefore, Brown argues, the State failed to prove each element of the offense

of resisting law enforcement. We agree.

[11] The warrantless arrest of a person in his or her home requires both probable

cause and exigent circumstances that make it impracticable to first obtain a

warrant. Harper, 3 N.E.3d at 1083 (multiple quotations omitted) (quoting from

and citing Paul v. State, 971 N.E.2d 172, 176 (Ind. Ct. App. 2012); Sapen v. State,

869 N.E.2d 1273, 1277 (Ind. Ct. App. 2007), trans. denied; Adkisson v. State, 728

N.E.2d 175, 177 (Ind. Ct. App. 2000)).

[12] Brown relies on Adkisson in arguing that his conviction should be reversed.

There, police officers were dispatched to an apartment complex to investigate a

disturbance between neighbors. The officers were told that Adkisson had struck

Court of Appeals of Indiana | Memorandum Decision 20A-CR-559 | September 1, 2020 Page 5 of 8 her neighbors and injured them. An officer approached Adkisson’s closed

door, she opened it, and the officer

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 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 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 176-77. Adkisson was convicted of Class A misdemeanor resisting

law enforcement, and she appealed her conviction arguing insufficient

evidence.

[13] 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, 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.”

Court of Appeals of Indiana | Memorandum Decision 20A-CR-559 | September 1, 2020 Page 6 of 8 [14] Here, officers responded to a dispatch to what was later determined to be

Brown’s home. Although there was no testimony describing what type of

dispatch call it was or otherwise stating the reason they were being dispatched,

Brown was ultimately charged with six offenses, including strangulation and

domestic battery of K.B. At trial, Officer Davis testified that, upon arrival, the

officers initially made contact with “someone” who had exited the rear of the

home, and thereafter the officers spoke to Brown at the front door through the

screen. Transcript at 17. Brown testified that initially he did not want to step

outside but later decided to do so, as his wife was “outside.” Id. at 24. While

we can reasonably infer from this that the officers were responding to and

investigating a domestic violence situation involving Brown and K.B, neither

officer testified as to any exigent circumstances that required them to enter the

home without a warrant. There was no evidence that the officers needed to

enter the home in order to protect K.B. or anyone else. There was no evidence

that Brown ever stepped out of the house or attempted to flee.

[15] The State suggests that when Brown attempted to shut his door and “retreat

inside his home,” such evidence “shows that [Brown] was taking flight in order

to avoid arrest” and satisfied the requirement of exigent circumstances and

justified a warrantless entry into the home. Appellant’s Brief at 15. We are not

persuaded, however, that Brown’s act of continuously staying inside his house

constitutes flight.

[16] Based on the scant record before us, we cannot conclude that Officer Tomes

was lawfully engaged in his duties when he entered Brown’s home and arrested

Court of Appeals of Indiana | Memorandum Decision 20A-CR-559 | September 1, 2020 Page 7 of 8 him. Accordingly, the evidence is insufficient to support Brown’s conviction. 1

See Harper, 3 N.E.3d at 1085 (reversing defendant’s conviction for resisting law

enforcement where, although police officers responding to a domestic violence

call developed probable cause at the scene to arrest defendant, they spoke to

defendant through closed screen door, defendant denied officers entry into her

home, and officers entered her home by using deception and without showing

exigent circumstances to justify entry); see also Cupello v. State, 27 N.E.3d 1122,

1132 (Ind. Ct. App. 2015) (reversing defendant’s conviction for Class A

misdemeanor battery on a law enforcement officer where defendant, after

speaking with apartment’s security officer at defendant’s open door, shut the

door and struck the constable’s foot that he had placed in the threshold of the

door to keep defendant from shutting it, and thereafter constable, without a

warrant or showing of exigent circumstances, opened defendant’s door with

key, entered the apartment, and arrested him).

[17] Judgment reversed.

Riley, J. and May, J., concur.

1 We need not reach Brown’s alternate argument that the State failed to show that he forcibly resisted.

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