Casselman v. State

Citation472 N.E.2d 1310
Decision Date17 January 1985
Docket NumberNo. 3-1183A362,3-1183A362
PartiesGerald CASSELMAN, Jr., Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
CourtIndiana Appellate Court

Susan K. Carpenter, Public Defender, M.E. Tuke, Deputy Public Defender, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen., Theodore E. Hansen, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

GARRARD, Judge.

After a bench trial Gerald Casselman was convicted of resisting law enforcement, a Class A misdemeanor. Our consideration of the first issue raised by Casselman attacking the sufficiency of the evidence requires that we reverse his conviction. 1

When reviewing the sufficiency of the evidence to support a conviction we consider only the evidence most favorable to the state and all reasonable inferences to be drawn therefrom. If there is substantial evidence of probative value to support each element of the offense, then we will affirm the trial court. Napier v. State (1983), Ind., 445 N.E.2d 1361, 1366.

The evidence viewed in light of the above standard reveals that Casselman was having difficulty paying his debts and was under pressure from creditors. He contacted an attorney, Larry Barkes, for preparation of a petition for bankruptcy. The petition was filed and an automatic stay was entered on August 5, 1982. Barkes told Casselman that if anyone approached him regarding a debt he should inform the person of the bankruptcy proceedings and direct the person to contact Barkes. He also told Casselman that because of the stay, Casselman did not have to attend a scheduled hearing on a motion for proceedings supplemental arising from a judgment entered against Casselman in a suit brought by General Electric Corporation (G.E.). However, neither Barkes nor Casselman informed the court of the bankruptcy or the automatic stay.

Casselman twice failed to appear at hearings on G.E.'s motion assertedly believing the automatic stay allowed him to do so. After Casselman's first failure to appear, the court had a citation served upon him ordering him to appear and show cause why he should not be held in contempt. See IC 34-4-9-1. After Casselman's second failure to appear, the court issued a writ of attachment of the body pursuant to IC 34-4-9-2.1 ordering the sheriff to take Casselman into custody.

On November 10, 1982 Deputy Sheriff James Wofford drove to Casselman's residence to serve the writ. He knocked on the front door, and when he received no response, went around to the side of the house to a sliding glass door. He knocked again and Casselman came to the door. Wofford asked if he was Gerald Casselman, Jr. When Casselman responded that he was, Wofford displayed his identification and told Casselman that he was Officer James Wofford of the Elkhart County Sheriff's Department. The identification consisted of a badge and a card bearing Wofford's picture and stating that he was a deputy sheriff for Elkhart County.

Wofford testified at trial that he then explained to Casselman:

"That I had the Body Attachment and that it was from the corporation and that I needed to serve it on him, it was out of Elkhart Division Court, James Rieckhoff was the Judge, and that it was a thousand dollars bond I believe. I also asked him if he owed any money to the company."

Record at 95. Casselman told Wofford of his filing for bankruptcy and asked Wofford to contact Casselman's attorney. Instead, Wofford began to read the text of the writ. At that time, according to Wofford, Casselman "started hollering at me and yelling at me and stating to see his lawyer and to get out of there." Record at 96. When Wofford continued to read, Casselman tried to close the door. Wofford "reached for the door to try to stop him from closing it." Casselman pushed Wofford away but Wofford "grabbed the door again, reached in, stuck [his] left front leg in to try to keep the door open." After a shoving and grabbing match, Casselman retreated into his house. Wofford followed, drew his service revolver, pointed it at Casselman and instructed him to "freeze." Wofford then took Casselman into custody.

Casselman was convicted of resisting law enforcement for his conduct. The statute, IC 35-44-3-3, provides in pertinent part:

"(a) A person who knowingly or intentionally:

(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer;

(2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court ...

commits resisting law enforcement, a Class A misdemeanor ...." (hereinafter, Section (a)(1) and Section (a)(2) ).

The charging information sufficiently encompassed either a violation of Section (a)(1) or Section (a)(2) of the statute. 2 Our review of the evidence is therefore directed to whether the state proved Casselman knowingly or intentionally forcibly resisted, obstructed or interfered with either "a law enforcement officer ... lawfully engaged in the execution of his duties as an officer" or "the authorized service or execution of a civil or criminal process or order of a court."

At the outset it is important to understand what this case does not involve. The writ of attachment of the body is not a criminal arrest warrant. 3 The form and contents of an arrest warrant are outlined in IC 35-33-2-2. "Arrest is the taking of a person into custody, that he may be held to answer for a crime." IC 35-33-1-5 (our emphasis). " 'Crime' means a felony or a misdemeanor." IC 35-41-1-6. Contempt, while punishable by imprisonment, is neither a felony nor a misdemeanor and technically is not a crime as defined in this state. See Niemeyer v. McCarty (1943), 221 Ind. 688, 51 N.E.2d 365 (overruled only as to issue not relevant to our case, Ashton v. Anderson (1972), 258 Ind. 51, 279 N.E.2d 210). Wofford did not serve a criminal arrest warrant on Casselman. He therefore could not claim the right to exercise the powers associated with the service of such a warrant. 4

Accordingly, we proceed with the understanding that the writ of attachment of the body served by Wofford was an authorization to effect a civil, not a criminal arrest. 5 This distinction is important as we view the confrontation on the doorstep of Casselman's house.

Assuming arguendo that the writ was properly issued and that Wofford had a legal right and duty to arrest Casselman, it is still necessary to determine whether Wofford, by forcibly preventing Casselman from closing the door to his home, was "lawfully engaged in the execution of his duties," Section (a)(1) or whether Casselman, by resisting Wofford's efforts, interfered with "the authorized service or execution of a civil ... process or order of a court." Section (1)(2).

"It is remarkable that upon a question of such frequent recurrence in practice, and of so much importance in relation to the service of civil process and the powers and duties of officers therein, no direct judicial authority is to be found." These words which remain applicable today were written by Chief Justice Shaw in Ilsley v. Nichols (1831), 29 Mass. (12 Pick.) 269, a case alleging trespass against an officer who broke into the plaintiff's house for the purpose of attaching goods pursuant to a writ. The court found the breaking to be unlawful and the attachment to be therefore invalid.

A case similar to Ilsley arose in Indiana later in the nineteenth century. State ex rel. McPherson v. Beckner (1892), 132 Ind. 371, 31 N.E. 950 involved an action for trespass against a constable who, having a writ of replevin ordering him to seize a sewing machine possessed by a resident of McPherson's house, "pushed with great force on [the] outer door of [the] dwelling house, and forced [it] open, against the will and power of [McPherson] ...." 31 N.E. at 950. From a judgment for the defendant, the Supreme Court reversed and granted a new trial. The court stated:

"The writ under which the officer was acting was but a civil process, and did not authorize him to force the outer door of a dwelling. 2 Freem. Ex'ns. Section 256; Snydacker v. Brosse, 51 Ill. 357; note to McGee v. Givan, 4 Blackf. 16; Curtis v. Hubbard, 4 Hill. 437. In actions of replevin a sheriff may, under our statute, (Rev.St.1881, 1271.) in some cases, cause a building or inclosure to be broken open, but no similar statute gives such right to a constable. Except as modified by statute, the common-law principle that every man's house is to be treated as his castle, and kept sacred from forcible intrusion, prevails in this state."

31 N.E. at 951. In holding that the constable's conduct amounted to a trespass, the court incorporated the following language from another case, State v. Armfield, 2 Hawks 246:

" 'The law is clearly settled that an officer cannot justify the breaking open an outer door or window in order to execute process in a civil suit; if he doth, he is a trespasser. A man's house is deemed his castle, for safety and repose to himself and family; but the protection and pose would be illusive and imperfect if a man were deprived of the right of shutting his own door when he sees an officer approaching to execute civil process. If the officer cannot enter peacefully before the door is shut, he ought not to attempt it, for this unavoidably endangers a breach of the peace, and is as much a violation of the owner's right as if he had broken the door at first.' We regard this case as a correct enunciation of the law applicable to the question under consideration. In our opinion the officer, in forcing an entrance into the dwelling house, was guilty of a trespass which rendered his subsequent acts unlawful, and justified the relatrix in resisting his further progress in serving the writ by force. Curtis v. Hubbard, 4 Hill, 437."

31 N.E. at 952. 6 See also 62 Am.Jur.2d Process Section 58 (1...

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