Justices reinstate conviction despite jury instruction error

Despite disproving of a jury instruction used to convict a man of felony resisting law enforcement, the Indiana Supreme Court reinstated his resisting conviction on Monday after finding the instruction error was harmless.

The justices unanimously upheld Christapher Batchelor’s Level 6 felony conviction of resisting law enforcement by fleeing in a vehicle in Christapher Batchelor v. State of Indiana, 18S-CR-436.

Batchelor was convicted after a Clay County traffic stop. A deputy sheriff had activated his emergency lights after observing Batchelor driving without a seatbelt, but Batchelor did not stop immediately. Instead, he continued driving at about 35 mph for roughly 90 seconds.

After the stop, Batchelor went to the ground on the deputy’s order but began to resist as officers tried to handcuff him. Ultimately, the deputy injured his ankle while one back-up officer jammed his finger and another received a black eye.

Batchelor was convicted of three counts, with the Level 6 felony resisting conviction at issue in his appeals. A jury convicted him of that charge after being given an instruction that defined “fleeing” as when a person “attempts to escape from law enforcement or attempts to unnecessarily prolong the time before the person must stop.” That instruction, known as Instruction 22, also required the state to prove that a “reasonable driver in (Batchelor’s) position” would have stopped sooner than he did.

Neither party objected to that instruction, but Batchelor argued on appeal that Instruction 22 improperly expanded the definition of “fleeing.” In a unanimous decision in March 2018, the Indiana Court of Appeals reversed the felony resisting conviction after likewise determining the “reasonable driver” standard allowed the state to convict Batchelor on a civil negligence standard.

After the Supreme Court granted transfer, the state initially argued Batchelor had invited any instructional error by failing to object to Instruction 22 at trial. But the court determined there was no evidence of “strategic maneuvering” in trial counsel’s failure to object and, thus, considered the case on the merits.

“In reaffirming this precedent, we emphasize today that, to establish invited error, there must be some evidence that the error resulted from the appellant’s affirmative actions as part of a deliberate, ‘well-informed’ trial strategy,” Justice Mark Massa wrote for the court. “A ‘passive lack of objection,’ standing alone, is simply not enough.”

Then, in reinstating the felony resisting conviction, the justices determined Instruction 22 misstated the applicable mens rea and potentially misled the jury as an incorrect statement. The question, Massa said, should have been whether Batchelor knew he was committing an offense, not what a reasonable person would have done in his shoes.

“Because nothing in the resisting statute defines fleeing as unnecessarily delaying a stop without a reasonable safety concern, Instruction 22 threatened to invade the jury’s province to decide the law and facts,” Massa wrote. “… Whether there are sound policy reasons for including these factors in a ‘fleeing’ definition is a question best suited for the legislature.”

Even so, the high court upheld Batchelor’s felony resisting conviction considering the entirety of the jury charge. Massa noted the trial court twice read the proper mens rea — whether Batchelor “knowingly and intentionally” fled — and gave a “comprehensive instruction of the felony-resisting offense” that enumerated the elements of the crime of resisting. 

“Instruction 22, by contrast, is merely a ‘supplemental, definitional instruction’ which attempts — albeit inaccurately — to explain the term ‘fleeing’ as it applies to this case,” he wrote. “To the extent that language in Instruction 22 contradicts language in the ‘elements’ instruction, the latter (read twice to the jury) outweighs the former (read only once to the jury).”

Thus, the justices concluded the defect in Instruction 22 was harmless in light of the “uncontroverted evidence showing that Batchelor knowingly fled.” But the court also expressly disapproved of the rule laid out in Cowans v. State, 53 N.E.3d 540 (Ind. Ct. App. 2016) trans. not sought, which was the framework for the defective fleeing instruction.

Cowans held that defendants charged with resisting are entitled to a jury instruction that defined the word “flee” and explained “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.”

“As dicta, the Cowans opinion had no binding effect on the trial court here,” Massa wrote. “… And even if it were central to the court’s holding in Cowans, we have long held ‘that certain language or expression’ used by an appellate court ‘to reach its final conclusion’ is ‘not [necessarily] proper language for instruction to a jury.

“… Going forward, trial courts should use Indiana Pattern Criminal Jury Instruction 5.3040 for the resisting-by-fleeing offense,” Massa concluded. “And while counsel may argue that a defendant’s actions are reasonable or unreasonable, it’s ultimately for the jury to decide whether there’s evidence of knowing or intentional fleeing under the statute.”