Lemon v. State

• Decision Date: 06 July 2007
• Docket Number: No. 49A02-0605-CR-375.,49A02-0605-CR-375.
• Citation: 868 N.E.2d 1190
• Parties: Tyhesha LEMON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

868 N.E.2d 1190

Tyhesha LEMON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0605-CR-375.

Court of Appeals of Indiana.

July 6, 2007.

Barbara J. Simmons, Oldenburg, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Tyhesha Lemon ("Lemon") was convicted in Marion Superior Court of Class A misdemeanor battery. She appeals and argues that the evidence presented is insufficient to support her battery conviction. Concluding that the evidence is insufficient to support Lemon's conviction, we reverse.

Facts and Procedural History¹

On the afternoon of February 13, 2006, Lemon, accompanied by her son and a friend, went to the parking lot of Handleman Company in Marion County to place a valentine card on the windshield of a Handleman employee, Ronald Walls ("Walls"). At the time, Lemon was a former girlfriend of Walls. While returning from Lunch, Walls saw Lemon and her friend in the parking lot. Lemon threatened to vandalize Walls's vehicle. Walls proceeded to the Handleman building and spoke to Handleman's Chief Security Officer, Jeffrey Mishler ("Mishler") about the situation. Mishler is a private security guard and is not a law enforcement officer. Walls and Mishler proceeded to walk outside to the parking lot and found Lemon kneeling down near the rear tire on the driver's side of Walls's vehicle.

After Mishler observed Lemon in the Handleman parking lot, he issued a verbal challenge to Lemon and tried to determine what she was doing. In response to Mishler's challenge, Lemon stood up and started to back away from the vehicle with her hands in her pockets. Lemon did not vandalize or otherwise damage the vehicle. Mishler told Lemon that she was trespassing. Thereupon, Lemon continued to back away, and became argumentative, but did not verbally refuse to leave.

When Lemon did not leave instantly, Mishler immediately approached Lemon and attempted to put her in a transport hold to gain control of her. He stated that she was being arrested for trespass. Mishler took hold of Lemon in order to handcuff her. Lemon struggled in an attempt to resist being handcuffed. Mishler attempted to place Lemon over the trunk of a car, but had to force her to the ground to gain physical control. During the struggle, a cut Mishler had received on his hand a few days earlier reopened and began to bleed. According to the testimony at trial, the cut on Mishler's hand may have been opened during the struggle by one of Lemon's fingernails or by the handcuffs scratching his hand.

After Lemon was handcuffed, Mishler took Lemon inside the Handleman building to the security office. Lemon continued to struggle on the way to the office. Once inside the security office, Mishler tried to place Lemon over a desk in an attempt to control her, but Lemon continued to struggle and was forced to the floor. While being forced to the floor by Mishler, Lemon sustained a cut lip.

Officers from the Marion County Sheriff's Department arrived at the scene and found Lemon lying on the floor inside the security booth with her hands handcuffed behind her back. According to these officers, Lemon cooperated with them as they arrested her for battery, disorderly conduct, and vandalism, but not for trespass.

The State charged Lemon with Class A misdemeanor battery, Class A misdemeanor criminal mischief, and Class B misdemeanor disorderly conduct. The State dismissed the criminal mischief charge prior to trial. During a bench trial on March 9, 2006, and following the presentation of the State's evidence, the trial court found Lemon not guilty of disorderly conduct. Lemon also moved to dismiss the battery charge, arguing that Mishler did not have the authority to arrest Lemon as he was not a law enforcement officer and Lemon did not commit a felony in his presence. The trial court took the motion under advisement.

On April 6, 2006, the trial court determined that Lemon committed a breach of the peace, thus providing Mishler with the right to hold Lemon until officers arrived. Upon that determination the trial court found Lemon guilty of Class A misdemeanor battery. Lemon was then sentenced to sixty days, with fifty-two days suspended. Additional facts will be provided as necessary.

Standard of Review

Our standard of review for sufficiency claims is well settled. We neither reweigh the evidence nor judge the credibility of the witnesses. Cox v. State, 774 N.E.2d 1025, 1028 (Ind.Ct.App.2002). We only consider the evidence most favorable to the judgment and the reasonable inferences that can be drawn therefrom. Id. "Where there is substantial evidence of probative value to support the judgment, it will not be disturbed." Armour v. State, 762 N.E.2d 208, 215 (Ind.Ct.App.2002), trans. denied. "The conviction will be affirmed unless we conclude that no reasonable trier of fact could find the defendant guilty beyond a reasonable doubt." Norris v. State, 755 N.E.2d 190, 192 (Ind.Ct. App.2001), trans. denied.

Discussion and Decision

Lemon argues that the evidence presented was insufficient to support her battery conviction. To convict Lemon of Class A misdemeanor battery, the State was required to prove that Lemon "knowingly or intentionally touch[ed] another person in a rude, insolent, or angry manner" and that the touching resulted "in bodily injury to any other person." Ind. Code § 35-42-2-1(a)(1)(A) (2004).

Specifically, Lemon contends that any injury sustained by Mishler was a result of his unreasonable and unlawful use of force while attempting to arrest her. Neither party disputes that Mishler's actions constituted an arrest. The issue here is whether Mishler's actions constituted a lawful arrest. Both parties also concede that Mishler has no law enforcement powers above and beyond those of a normal citizen.

I. Unlawful Citizen's Arrest

The State argues that Mishler made a valid citizen's arrest pursuant to Indiana Code section 35-33-1-4, which provides in pertinent part:

(a) Any person may arrest any other person if:

(1) the other person committed a felony in his presence (2) a felony has been committed and he has probable cause to believe that the other person has committed that felony; or

(3) a misdemeanor involving a breach of peace is being committed in his presence and the arrest is necessary to prevent the continuance of the breach of peace.

(b) A person making an arrest under this section shall, as soon as practical, notify a law enforcement officer and deliver custody of the person arrested to a law enforcement officer.

Ind.Code § 35-33-1-4 (1998) (emphasis added).

The record conclusively shows that Mishler approached Lemon and informed her that he was arresting her for trespass. Trespass is a Class A misdemeanor. See Ind.Code § 35-43-2-2 (2004). Therefore, at least initially, in order to determine whether the citizen's arrest effected by Mishler was lawful, we must consider whether Lemon's actions immediately prior to the arrest constituted a breach of the peace.

"A breach of the peace includes all violations of public peace, order or decorum." State v. Hart, 669 N.E.2d 762, 764 (Ind.Ct.App.1996) (citing Census Fed. Credit Union v. Wann, 403 N.E.2d 348, 350 (Ind.Ct.App.1980)). "It is a violation or disturbance of the public tranquility or order and includes breaking or disturbing the public peace by any riotous, forceful, or unlawful proceedings." Id. "Thus, a breach of the peace may involve other offenses." Id.

Our supreme court has stated that violence, either actual or threatened, is an essential element of breaching the peace. Price v. State, 622 N.E.2d 954, 960 n. 6 (Ind.1993).² See also Higgins v. State, 7 Ind. 549 (1856) (holding that a person having possessory title to land who enters by force and turns out a person who has naked possession only may be indicted for breaching the peace); State v. Hart, 669 N.E.2d 762 (Ind.Ct.App.1996) (holding that a person who operates a motor vehicle while intoxicated commits a breach of the peace); Nicholson's Mobile Home Sales, Inc. v. Schramm, 164 Ind.App. 598, 330 N.E.2d 785 (1975) (holding that assault and battery by a creditor who is recovering property constitutes a breach of the peace). Yet, as our supreme court has not specifically elaborated upon what actions would constitute violence sufficient to create a breach of the peace, we are left to do so with reference to the facts before us.

Here, Mishler confronted Lemon in the parking lot while she knelt next to Walls's vehicle. Mishler issued a verbal challenge to Lemon, and Lemon became argumentative and backed away from Walls's vehicle. Nothing in the record indicates that Lemon had engaged in or threatened any acts of violence toward Mishler's person or to the person of anyone else at the scene. All that the record before us establishes is that Lemon left a valentine card on Walls's vehicle and was kneeling by a rear tire of the vehicle when confronted by Mishler.

Despite this lack of actual violence or imminent threat of violence, and without allowing Lemon a reasonable period of time to leave the premises of her own volition, Mishler immediately approached Lemon, grabbed her, and wrestled with her in order to place her in a transport hold. Lemon resisted Mishler's unilateral use of force. Thus, Lemon and Mishler engaged in a physical altercation only after Mishler grabbed Lemon. There was no imminent threat of or actual use of violence by Lemon until Mishler initiated physical contact with her. Without any imminent threat of or actual violence, Lemon's failure to immediately leave the parking lot, in and of itself, was not a breach of the peace.

Still, the State argues that Lemon's threat to vandalize Walls's vehicle was conduct that constituted a breach of the peace. We are aware of no case in Indiana or any other jurisdiction that has held that the mere threat to...