cases that help define use of force.

The #1 community for Gun Owners in Indiana

Member Benefits:

  • Fewer Ads!
  • Discuss all aspects of firearm ownership
  • Discuss anti-gun legislation
  • Buy, sell, and trade in the classified section
  • Chat with Local gun shops, ranges, trainers & other businesses
  • Discover free outdoor shooting areas
  • View up to date on firearm-related events
  • Share photos & video with other members
  • ...and so much more!
  • Rating - 100%
    1   0   0
    Jul 3, 2008
    3,619
    63
    central indiana
    Converted file par

    FOR PUBLICATION


    ATTORNEY FOR APPELLANT:****ATTORNEYS FOR APPELLEE:
    JASON J. PATTISON****KAREN M. FREEMAN-WILSON
    Rogers & Dove****Attorney General of Indiana
    North Vernon, Indiana
    GRANT H. CARLTON
    Deputy Attorney General
    Indianapolis, Indiana

    IN THE COURT OF APPEALS OF INDIANA
    PAUL NANTZ, )
    )
    Appellant-Defendant, )
    )
    vs. ) No. 40A04-0006-CR-237
    )
    STATE OF INDIANA, )
    )
    Appellee-Plaintiff. )




    APPEAL FROM THE JENNINGS CIRCUIT COURT
    The Honorable Jon W. Webster, Judge
    Cause No. 40C01-9911-DF-963



    January 11, 2001
    OPINION - FOR PUBLICATION


    RILEY, Judge
    STATEMENT OF THE CASE
    Appellant-Defendant, Paul Nantz (Nantz), appeals his conviction for pointing a firearm, a Class D felony, Ind. Code § 35-47-4-3(b).
    We affirm.
    ISSUES
    Nantz raises four issues on appeal, which we restate as follows:
    1.****Whether there was sufficient evidence to sustain his conviction for Pointing A Firearm.
    2.****Whether the trial court properly instructed the jury on all elements of the charged crime.
    3.****Whether he received ineffective assistance of trial counsel.
    4.****Whether his sentence was manifestly unreasonable.
    FACTS AND PROCEDURAL HISTORY
    ****In 1998, Ralph Mahoney (Mahoney) brought a bulldozer to Nantz’s property located on seventy-three acres in Jennings County, Indiana. Mahoney was using the bulldozer to grade the road on Nantz’s property leading to his house; however, during the process of grading the road the bulldozer broke down. Thus, Mahoney asked Nantz to allow him to keep the bulldozer in Nantz’s barn until Mahoney could fix it. The bulldozer remained on Nantz’s property for a year and on November 29, 1999, Mahoney and his wife, Suzanne Smith (Smith) returned to Nantz’s property to retrieve the bulldozer. Also, Mahoney hired a driver, Donald Petro (Petro), to help him load the bulldozer on a trailer.
    Smith drove a separate vehicle onto the property and stopped at the Nantz residence, while Mahoney and Petro proceeded to the barn to retrieve the bulldozer. It is uncontroverted that Mahoney, Smith and Petro entered Nantz’s property without his permission. Smith talked with Nantz and offered to pay him for the bulldozer. See footnote Mahoney then approached Nantz and Smith and offered to pay Nantz for the bulldozer. Nantz, who was intoxicated at the time, became angry and ordered Mahoney off his property. Nantz then walked in his house and returned with a pistol. Nantz walked to the barn area and held the gun to Petro’s head and ordered him off the property. Meanwhile Mahoney and Smith left the property and called the police. The police later recovered a loaded nine-millimeter pistol from Nantz’s vehicle.
    The police arrested Nantz and subsequently charged him with pointing a firearm, a Class D felony, and battery by bodily waste, a Class D felony. A jury trial was held on February 10, 2000, and Nantz was convicted on both counts. See footnote He was thereafter sentenced to three years for each count, with the sentences to be served consecutively.
    ****This appeal followed.
    DISCUSSION AND DECISION
    I. Sufficiency of the Evidence
    ****Nantz asserts that the State failed to present sufficient evidence in order to support his conviction of pointing a firearm. Essentially, Nantz argues that he put forth sufficient evidence in support of his defense of property defense and the State did not rebut this defense.
    In reviewing claims of insufficient evidence, our court neither reweighs the evidence nor judges the credibility of witnesses. Elliott v. State, 690 N.E.2d 774, 776 (Ind. Ct. App. 1998). We consider only the evidence supporting the judgment and all the reasonable inferences drawn therefrom. Id. If each element of the crime is supported by substantial evidence, we will affirm. Id. “If there is substantial evidence of probative value from which a trier of fact could find guilt beyond a reasonable doubt, we will affirm the conviction.” Newman v. State, 677 N.E.2d 590, 593 (Ind. Ct. App. 1997)(citing Gant v. State, 668 N.E.2d 254, 255 (Ind. 1996)).
    To convict Nantz of pointing a firearm as a Class D felony the State was required to prove that he knowingly or intentionally pointed a loaded firearm at another person. Ind. Code § 35-47-4-3. Petro testified that Nantz pointed a pistol at his head and ordered him off the property. Nantz admits that he waived a loaded firearm while ordering Petro off his property, but contends that he never intentionally pointed the firearm at Petro. It was within the jury’s province to believe Petro’s testimony rather than Nantz’s testimony and it is not our role to reweigh this evidence. Furthermore, the testimony of the victim alone is sufficient to support a conviction . Waldon v. State, 684 N.E.2d 206, 207 (Ind. Ct. App. 1997) trans. denied. Thus, the State presented sufficient evidence to establish beyond a reasonable doubt that Nantz pointed a loaded firearm at Petro.
    Nonetheless, Nantz argues that his actions were justified because he was defending his property. Ind. Code § 35-41-3-2 (c), provides the following with regard to whether a person may use force to defend his or her property:
    With respect to property other than a dwelling or curtilage, a person is justified in using reasonable force against another person if he reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in his possession, lawfully in possession of a member of his immediate family, or belonging to a person whose property he has authority to protect. However, a person is not justified in using deadly force unless that force is justified under subsection (a) of this section. See footnote

    Thus, Nantz argues that he used reasonable force to defend his property and therefore, his actions were justified. If self-defense is supported by the evidence, the State must disprove at least one element of the defense beyond a reasonable doubt. Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999); see also Hanic v. State, 406 N.E.2d 335, 339 (Ind. Ct. App. 1980) (on review, self–defense cases are analogous to defense of property cases). However, the State may refute a claim of self-defense by direct rebuttal or by relying on the evidence presented in its case-in-chief. Mariscal v. State, 687 N.E.2d 378, 381 (Ind. Ct. App. 1997), reh’g denied, trans. denied. It is the factfinder’s decision to determine whether a claim of self-defense has been disproved. Pointer v. State, 585 N.E.2d 33, 36 (Ind. Ct. App. 1992). “A conviction in spite of a claim of self-defense will be reversed only if no reasonable person could say that the claim was negated by the prosecution beyond a reasonable doubt.” Id.
    ****Consequently, to establish his defense of property defense, Nantz was required to prove that he used reasonable force to prevent or terminate a trespass or to defend his property or his family’s property or property he was authorized to protect. The State argues that the force used by Nantz, pointing a loaded gun at Petro, constitutes deadly force and thus, was unreasonable force under the statute. Since Nantz does not assert that he was attempting to protect himself or a third person and contends rather that he was defending his property interest in the bulldozer, he was prohibited under the statute from using deadly force. However, Nantz argues that he did not use deadly force; that instead his conduct constituted the threat of deadly force and that the threat of deadly force was reasonable force under the circumstances.
    "‘Deadly force’ means force that creates a substantial risk of serious bodily injury.” Ind. Code § 35-41-1-7. There appears to be no case in Indiana addressing whether the conduct at issue here, pointing a loaded firearm, constitutes deadly force as referred to in the defense of property statute, Ind. Code § 35-41-3-2 (c). However, in Spurlock v. State, 675 N.E.2d 312, 316 (Ind. 1996), our supreme court concluded that pointing a loaded firearm at a police officer was sufficient evidence to support a conviction for criminal recklessness. “A person commits criminal recklessness when he recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person.” Id. (citing Ind. Code § 35-42-2-2.). Thus, within the context of a charge of criminal recklessness, pointing a loaded firearm is considered an action that creates a substantial risk of bodily injury to another person. See Id.
    Our supreme court has also held that brandishing an unloaded firearm can create a substantial risk of bodily injury. Al-Saud v. State, 658 N.E.2d 907, 910 (Ind. 1995). The Al-Saud court noted that: “The brandishing of a firearm in a congested area or during a dispute can create a variety of risks of bodily injury to others, regardless of whether the weapon is loaded.” Id.
    We find that these concerns equally apply to the case before the court. By pointing a loaded gun at Petro’s head, Nantz created a variety of risks that could have lead to serious bodily injury. In Upp v. State, 473 N.E.2d 1030, 1032 (Ind. Ct. App. 1985), this court affirmed the defendant’s conviction for criminal recklessness. In that case, Upp asserted the defense of property defense, and claimed that although he fired his gun several times, he was not trying to hit the trespasser in his back yard. Id. at 1031, 1032. We concluded that even assuming that Upp was not attempting to shoot the trespasser, his behavior still created a substantial risk of bodily injury because Upp could have missed his aim or a bullet could have struck a stone, ricocheted and injured the trespasser. Id at 1032.
    Although Nantz did not fire his handgun as the defendant did in Upp, by pointing the gun at Petro’s head, the gun could have accidentally discharged or Petro could have grabbed the gun causing serious injury or death to one or both of these men. Further, under Ind. Code § 35-41-3-2(a), Petro may have arguably had the right to use deadly force to defend against Nantz’s action of pointing a loaded firearm at him, creating a substantial risk of injury. “‘Permitting one to threaten to use deadly force leads in dangerous progression to an unacceptable conclusion. Here, the victim would have been entitled to use deadly force to repel the perceived threat.” Commonwealth of Virginia v. Alexander, 260 Va. 238, 241, 531 S.E.2d 567, 569 (2000) (citation omitted). See footnote
    Consequently, we conclude that Nantz’s conduct, pointing a loaded firearm at Petro’s head, was unreasonable force to use to protect his alleged property interest in the bulldozer. Thus, Nantz failed to prove his defense of property defense. Therefore, we find that the evidence was sufficient to support his conviction for pointing a firearm, as a Class D felony.
    II. Jury Instruction
    Nantz contends that the trial court failed to properly instruct the jury as to the material elements of the crime of pointing a firearm, as a Class D felony. Specifically, Nantz contends that the jury was not instructed that the firearm had to be loaded in order to convict Nantz of a Class D felony. Because Nantz’s trial counsel failed to object, Nantz asserts that the failure to properly instruct the jury as to the material elements of the crime is fundamental error. However, even though required by App.Rule 8.3(A)(7), Nantz fails to set forth verbatim the specific instruction to which he now objects. Nonetheless, we will address this issue on its merits.
    ****Our review of the Record shows that the trial court included in its preliminary instructions read to the jury, the following instruction: “The statute defining the offense of pointing a firearm, which was in force at the time of the offense charged in count one, reads in relevant part as follows: … [A] person who knowingly or intentionally, points a firearm at another person commits a Class D felony.” (R. 253). The trial court also gave this same instruction as final instruction number four. (R. 132, 410). These instructions do not state that the firearm must be loaded to constitute a Class D felony.
    However, the trial court’s final instruction number twelve, specifically sets forth the elements of the crime, including that the firearm must be loaded to constitute a Class D felony. Final instruction number twelve reads as follows: See footnote
    The crime of pointing a firearm is defined by statute as follows:
    A person who knowingly or intentionally points a firearm at another person commits a class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.
    To convict the defendant, the State must have proved each of the following elements:
    The Defendant
    (1) knowingly or intentionally
    (2) pointed a firearm
    (3) at [ name] Don Petro
    If the State failed to prove each of these elements beyond a reasonable doubt, you should find the Defendant not guilty.
    If the Stated did prove each of these elements beyond a reasonable doubt, you should find the Defendant guilty of pointing a firearm, a Class A misdemeanor.
    If you further find beyond a reasonable doubt that the firearm was loaded, you should find the Defendant guilty of pointing a firearm, a Class D felony. See footnote

    (R. 141). The trial judge read this instruction to the jury as set forth above, excluding the marked out portions. (R. 412). Further, the trial court also included as part of the preliminary instructions and final instructions, as final instruction number three, a reading of the Information which states in pertinent part: “Paul Nantz did knowingly point a loaded firearm, specifically a loaded Ruger P-85 handgun, … at another person, specifically, Don Petro…” (R. 131, 253, 410). Thus, the jury was instructed through final instruction three and twelve that Nantz was accused on pointing a loaded firearm at Petro and that the State was required to prove that the firearm was loaded to convict Nantz.
    Nantz is correct in his contention that it is fundamental error for the trial court to fail to give an instruction setting forth all the elements of the offense. Lacy v. State, 438 N.E.2d 968, 971 (Ind. 1982); Higgins v. State, 690 N.E.2d 311, 315 (Ind. Ct. App. 1997), reh’g denied. However, in this case, there was not a total failure to give such an instruction, a fact apparently overlooked by Nantz. Final instruction number twelve, the elements instruction, sets forth all of the elements of the charged offense. While final instruction number three, which purports to set forth the statute, does not state that the firearm must be loaded to constitute a Class D felony, final instruction number twelve does included this element. Thus, the final instructions, when read together as a whole, instructed the jury on the necessary elements of the charged offense, pointing a firearm, as a Class D felony. See Nicholson v. State, 500 N.E.2d 1175, 1177 (Ind. 1986); Jarrett v. State, 580 N.E.2d 245, 252 (Ind. Ct. App. 1991). Under these circumstances, we do not believe fundamental error occurred here.
    III. Ineffective Assistance of Counsel
    Nantz argues that his trial counsel was ineffective for his failure to tender certain instructions. Specifically, Nantz asserts that his trial counsel should have submitted proposed instructions on the possessory lien statute and the citizen’s arrest statute. Further, Nantz claims that his trial counsel was ineffective for his failure to object to the trial court’s final instruction on the elements of the charge against him.
    The standard by which we review claims of ineffective assistance of counsel is well settled. In order to prevail on a claim of this nature, a defendant must satisfy a two prong test: (1) a showing that counsel’s performance fell below an objective standard of reasonableness based on prevailing professional norms, and (2) a showing that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. State v. Moore, 678 N.E.2d 1258, 1261 (Ind. 1997) reh’g denied, cert. denied (citing Strickland v. Washington, 466 U.S. 668 (1984)).
    However, we need not determine whether counsel’s performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. Strickland, 466 U.S. at 697. To establish prejudice, Nantz must first demonstrate that there is a reasonable probability that, but for counsel’s errors, the result of the proceeding would be different. See Smith v. State, 689 N.E.2d 1238, 1244 (Ind. 1997). Isolated poor strategy or bad tactics do not necessarily amount to ineffective assistance of counsel unless, taken as a whole, the defense was inadequate. Brown v. State, 698 N.E. 2d 1132, 1139 (Ind. 1998), reh’g denied, cert. denied. Furthermore, we “will not lightly speculate as to what may or may not have been an advantageous trial strategy as counsel should be given deference in choosing a trial strategy which, at the time and under the circumstances, seems best.” Whitener v. State, 696 N.E. 2d 40, 42 (Ind. 1998).
    A. Possessory Lien Statute
    Nantz claims that the evidence supported an instruction on the possessory lien statute, Ind. Code § 9-22-5-15, and his counsel was ineffective for failing to request one. A proposed instruction may be given if it is a correct statement of the law, it is supported by the evidence, it is not covered by another instruction, and it does not tend to mislead or confuse the jury. See Barnard v. Himes, 719 N.E.2d 862, 868 (Ind. Ct. App. 1999), trans. denied.
    The possessory lien statute states in pertinent part, “(a)n individual, … that … furnishes storage … on a motor vehicle … at the request of the person who owns the motor vehicle has a lien on the vehicle to the reasonable value of the charges for the … storage …” Ind. Code § 9-22-5-15(a). Nantz claims that the evidence supports an instruction on this statute because he stored Mahoney’s bulldozer at Mahoney’s request. Nantz contends that if this instruction had been given, the jury would have known that there was a legal basis for Nantz’s possession of the bulldozer independent of Nantz’s testimony.
    Assuming for the sake of argument that this is correct, Nantz is nonetheless unable to show that he was prejudiced by his counsel’s failure to request this instruction. Because we have determined that the amount of force used by Nantz to protect his alleged property interest in the bulldozer was unreasonable, the issue of whether or not he had a possessory interest in the bulldozer is moot. Consequently, Nantz was not prejudiced by his attorney’s failure to request this instruction.
    B. Citizen’s Arrest Statute
    Nantz also argues that his trial counsel was ineffective by failing to request an instruction on the citizen’s arrest statute. This statute provides in part that: “Any person may arrest any other person if: … the other person committed a felony in his presence; … or … [if] 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.” Ind. Code § 35-33-1-4. Nantz argues that this instruction was supported by the evidence because he believed that Petro was committing felony theft by stealing the bulldozer, and thus, he had the right to attempt to arrest him. Nevertheless, Nantz’s own testimony did not support the giving of this instruction. Nantz testified that he was waving the gun around and yelling at Petro to get off his property. (R. 365). At no time did Nantz testify that he was attempting to arrest Petro, instead Nantz made it clear that he was attempting to force Petro off his property. Thus, because Nantz was not attempting to make a citizen’s arrest, an instruction on this statute was not supported by the evidence and would not have been given if tendered. See Barnard, 719 N.E.2d at 868.
    Thus, Nantz’s trial counsel was not ineffective for failing to tender an instruction on the citizen’s arrest statute.
    C. Failure to Object to the Elements Instruction
    Nantz also argues that his trial counsel was ineffective for failing to object to the trial court’s final instruction on the elements of the charged offense. Since we have previously found herein that the elements instruction was proper, we conclude that Nantz’s trial counsel was not ineffective for failing to object to this instruction.
    IV. Sentencing
    ****Finally, Nantz asserts that the sentence he received as a result of his conviction was manifestly unreasonable in light of the nature of the offense and the character of the offender. Nantz was sentenced to a three-year term of imprisonment, which is the maximum possible sentence for a Class D felony. See Ind. Code § 35-50-2-7. Nantz concedes that the trial court properly enumerated all of the aggravating and mitigating factors in its sentencing order; however, he argues that the trial court did not properly weigh these factors. Specifically, Nantz asserts that under the circumstances of this case, it was unreasonable to give a man with his health problems the maximum sentence possible.
    It is within the trial court’s discretion to determine Nantz’s sentence and thus, the trial court’s sentence will be reversed only upon a showing of abuse of that discretion. See Ballard v. State, 715 N.E.2d 1276, 1279 (Ind. Ct. App. 1999). “We will not revise a sentence that is authorized by statute unless the sentence is manifestly unreasonable in light of the nature of the offense and the character of the offender. A sentence is manifestly unreasonable if no reasonable person could consider the sentence appropriate.” Ladd v. State, 710 N.E.2d 188, 192 (Ind. Ct. App. 1999). We review cases under this rule with the knowledge that reasonable minds may differ on the appropriateness of a sentence, and due to the degree of subjectivity involved in the sentencing process, it is not appropriate for a reviewing court to substitute its opinion for that of the trial court. Id.
    When enhancing a sentence, the trial court must identify all significant mitigating and aggravating circumstances. Johnson v. State, 725 N.E.2d 864, 867 (Ind. 2000). However, the weight to be given any one aggravating or mitigating factor is to be determined by the trial judge during sentencing. Ballard, 715 N.E.2d at 1279. One aggravating factor alone is sufficient to impose consecutive sentences and to enhance the presumptive sentence. Buzzard v. State, 712 N.E.2d 547, 554 (Ind. Ct. App. 1999), trans. denied. Additionally, an enhanced sentence may be composed when the only aggravating circumstance is the defendant’s prior criminal history. Isaacs v. State, 673 N.E.2d 757, 765 (Ind. 1996).
    ****In its sentencing order, the trial court found the following aggravating factors: (1) Nantz had at least twelve prior misdemeanor convictions and one felony conviction; (2) the firearm was loaded and Nantz’s actions created a substantial risk of serious bodily injury and death; (3) there is a substantial probability of future criminal activity; (4) there was a need for correctional treatment best conducted by a penal facility; (5) a lesser sentence would depreciate the seriousness of the crime; and (6) alcohol played a substantial role in Nantz’s actions. (R. 189). The trial court further identified the following mitigating factors: (1) Nantz’s extreme poor health and his age; (2) the fact that Nantz is a veteran; (3) that his incarceration will be a hardship to his wife; (4) that there were circumstances tending to justify his acts, although not rising to the level of a legal defense; (5) provocation; and (6) Nantz’s behavior while incarcerated. (R. 189).
    ****It is clear from the Record of the sentencing hearing and the sentencing order that the trial court thoughtfully considered and weighed all of these factors. As we have said, the weight to be given any one aggravating or mitigating factor is to be determined by the trial judge during sentencing. Ballard, 715 N.E.2d at 1279. We cannot replace our judgment for that of the trial court in determining what weight to assign these factors. Accordingly, we conclude that the trial court’s sentence was reasonable.
    CONCLUSION
    ****Based on the foregoing, we conclude that there is sufficient evidence to support Nantz’s conviction for pointing a firearm, as a Class D felony. We further find that the jury was properly instructed and that Nantz did not receive ineffective assistance of trial counsel. Finally, we conclude that Nantz was properly sentenced.
    ****Affirmed.
    DARDEN, J., and ROBB, J., concur.

    Footnote: Smith testified that she offered to pay Nantz for the bulldozer because Nantz claimed that Mahoney owed him money. Nantz also claimed that he and Mahoney had agreed that Nantz would keep the bulldozer for this debt. Smith and Mahoney testified that they did not owe Nantz money and only offered to pay him as a means to recover the bulldozer.

    Footnote: Nantz does not appeal his conviction of battery by bodily waste.
    Footnote: Ind. Code § 35-41-3-2(a) provides as follows: “A person is justified in using reasonable force against another person to protect himself or a third person from what he reasonably believes to be the imminent use of unlawful force. However, a person is justified in using deadly force only if he reasonably believes that that force is necessary to prevent serious bodily injury to himself or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting himself or his family by reasonable means necessary.”
    Footnote: The Alexander court thus held that a deadly weapon may not be brandished solely in the defense of property. Id.; see also State v. Foster, 191 Ariz. 335, 358, 955 P.2d 993, 996 (1998); but see Diffendal v. Commonwealth, 8 Va.App. 417, 421, 382 S.E.2d 24, 26 (1989) and State v. William, 433 A. 2d 765, 769 (Me. 1981).

    Footnote: The marked out portions of this instruction were excluded by the trial court. The trial judge and both counsel initialed these changes.
    Footnote: Nantz asserts that the “loaded firearm” language in final instruction number twelve was stricken from this instruction. However, this assertion is factually incorrect.
     

    djjdnap

    Plinker
    Rating - 0%
    0   0   0
    Jul 16, 2010
    67
    6
    the polis of indiana
    3yrs for kickin ppl off his property wow..

    Wonder if it would have been different if he would have 'brandished' the firearm instead of pointing..
    and i bet in texas he could have shot them and gotten away with it.
     

    Kirk Freeman

    Grandmaster
    Rating - 100%
    8   0   0
    Mar 9, 2008
    47,968
    113
    Lafayette, Indiana
    What aspects of the "use of force" are you looking to address, single?

    Use of force is a very broad category and depends on dozens of variables. Some of the cases you cite above are unpublished and thus do not define anything.

    Is there a particular question that you have?
     

    djjdnap

    Plinker
    Rating - 0%
    0   0   0
    Jul 16, 2010
    67
    6
    the polis of indiana
    Curtilage in United States law

    In the USA, curtilage is distinct from a dwelling by virtue of lacking a roof, but distinct from the area outside the enclosure in that it is enclosed within a wall or barrier of some sort.[1]
    This distinction is important in United States law for cases dealing with burglary and with self-defense under the "Castle Doctrine."
    In some state law, such as Florida, burglary encompasses the English common law definition and adds (among other things) curtilage to the protected area of the dwelling into which intrusion is prohibited. Similarly, under Florida's Castle Doctrine a home-owner does not have to retreat within the curtilage.
    The curtilage (like the home) provides a reasonable expectation of privacy and hence in the United States is protected from unreasonable search and seizure under the Fourth Amendment to the United States Constitution. The Open fields doctrine describes how courts distinguish curtilage and "open fields," with the latter not providing privacy.
    It may also be relevant when considering the extent of house arrest.
    In United States v. Dunn, the Supreme Court identified four factors as critical when assessing the limits of curtilage: "the proximity of the area claimed to be curtilage to the home, whether the area is included within an enclosure surrounding the home, the nature of the uses to which the area is put, and the steps taken by the resident to protect the area from observation by people passing by."

    A Castle Doctrine (also known as a Castle Law or a Defense of Habitation Law) is an American legal doctrine claimed by advocates to arise from English Common Law[1] that designates one's place of residence (or, in some states, any place legally occupied, such as one's car or place of work) as a place in which one enjoys protection from illegal trespassing and violent attack. It then goes on to give a person the legal right to use deadly force to defend that place (his/her "castle"), and/or any other innocent persons legally inside it, from violent attack or an intrusion which may lead to violent attack. In a legal context, therefore, use of deadly force which actually results in death may be defended as justifiable homicide under the Castle Doctrine.
    Castle Doctrines are legislated by state, and not all states in the US have a Castle Doctrine. The term "Make My Day Law" comes from the landmark 1985 Colorado statute that protects people from any criminal charge or civil suit if they use force – including deadly force – against an invader of the home.[2] The law's nickname is a reference to the famous line uttered by Clint Eastwood's character Harry Callahan in the 1983 film Sudden Impact, "Go ahead, make my day."

    Duty-to-retreat

    "Castle laws" remove the duty to retreat from an illegal intruder when one is lawfully in one's home.[3] Therefore, any state that imposes a duty to retreat while in the home does not have a "Castle law": the duty-to-retreat clause expressly imposes an obligation upon the home's occupants to retreat as far as possible and verbally announce their intent to use deadly force, before they can be legally justified in doing so to defend themselves.
    For states that do not require the announcement to be "verbal", other indicators may be used. These are typically not defined by statute, and would be left to the court's interpretation, but may include things such as laser sights or the cocking of a firearm. Care should be exercised in studying applicable individual state laws. In the majority of jurisdictions warning shots are illegal, and even brandishing the weapon in a threatening manner can result in criminal charges.



    Adoption by States

    As of the 28th of May, 2010, 31 States

    have some form of Castle Doctrine and/or Stand Your Ground law. Alabama,[9] Alaska, Arizona, California, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, Montana, North Dakota, Ohio, Oklahoma, Rhode Island[10], South Carolina, South Dakota, Tennessee, Texas, Utah,[11] West Virginia and Wyoming have adopted Castle Doctrine statutes, and other states (Montana
    , Nebraska[12], New Hampshire, Pennsylvania and Washington) are currently considering "Stand Your Ground" laws of their own.[13][14][15] Some of the states that have passed or are considering "stand your ground" legislation already are considered "stand your ground" in their case law. Indiana and Georgia, among other states, already had "stand your ground" case law and passed "stand your ground" statutes due to possible concerns of the case law being replaced by "duty to retreat" in future court rulings. Other states, including Washington, have "stand your ground" in their case law but have not adopted statutes; West Virginia had a long tradition of "stand your ground" in its case law[16] before codifying it as a statute in 2008. These states did not have civil immunity for self defense in their previous self defense statutes.

    States with a Stand-your-ground Law

    No duty to retreat, regardless of where attack takes place.

     

    Kirk Freeman

    Grandmaster
    Rating - 100%
    8   0   0
    Mar 9, 2008
    47,968
    113
    Lafayette, Indiana
    Indiana abolished the duty to retreat during the Civil War. Indiana recently recodified an existing rule of law (no duty to retreat) after Florida made national news by eliminating their duty to retreat. See Kirk's Second Rule of the Internet.

    djj, when people saw "castle doctrine", thanks to media misinformation, it can mean many things.

    safe, what do you mean and how do you think it is relevant?
     
    Rating - 100%
    1   0   0
    Jul 3, 2008
    3,619
    63
    central indiana
    What aspects of the "use of force" are you looking to address, single?

    Use of force is a very broad category and depends on dozens of variables. Some of the cases you cite above are unpublished and thus do not define anything.

    Is there a particular question that you have?

    nothing specific.
    just responding to the many "has there ever been a case of xyz?"

    so i'm posting the ones i find that show something interesting..

    I am specifically looking for any case involving a shooting at a stolen car.. there was a high profile case a few years ago...

    As to being unpublished, at least these are real cases in Indiana, that show real acts & consequences..
    A little more helpful than people who quote texas law and claim it applies here...
     
    Last edited:

    IndySSD

    Master
    Rating - 100%
    8   0   0
    Jun 14, 2010
    2,817
    36
    Wherever I can CC le
    Indiana abolished the duty to retreat during the Civil War. Indiana recently recodified an existing rule of law (no duty to retreat) after Florida made national news by eliminating their duty to retreat. See Kirk's Second Rule of the Internet.

    djj, when people saw "castle doctrine", thanks to media misinformation, it can mean many things.

    safe, what do you mean and how do you think it is relevant?


    I mean to say that if the defendant felt as though the three people on his property were attempting to take the bulldozer without his consent ( It is noted in the case that there was a verbal agreement that the dozer was to remain with Nanz for a debt owed *unless I misread it * ) and he used a firearm to prevent the criminal trespass and theft of the property (dozer) that is rightfully within his possession that the bill that was signed into law (Quoted below) in Indiana in 2006 would have protected him from prosecution or at least proved him innocent of unlawfully pointing a firearm.

    For someone to show up a YEAR after abandoning a piece of equipment trying to get it back with two others after agreeing to leave it with the homeowner as payment for a debt would lead me to believe he was trying to strong arm Nanz into giving up a dozer that he rightfully owned.

    Now, this is complicated by the fact that apparently Nanz spit on someone and I'm sure there's a lot of "Flavor" that we're missing out on in this description but I belive that if someone is supposed to do something for me that I've paid them for, they don't do the job and instead of getting my money back, they leave a piece of equipment with me and they return A YEAR later with friends to try and force me to let them take it, I'm fully justified in defending my rightfully possessed property with a firearm, whether I'm forced to discharge it or not.




    HOUSE ENROLLED ACT No. 1028
    AN ACT to amend the Indiana Code concerning firearms and self-defense.

    Be it enacted by the General Assembly of the State of Indiana:

    SECTION 1. IC 35-41-3-2 IS AMENDED TO READ AS FOLLOWS [EFFECTIVE JULY 1, 2006]: Sec. 2. (a) A person is justified in using reasonable force against another person to protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force. However, a person:
    (1) is justified in using deadly force; only and
    (2) does not have a duty to retreat;
    if the person reasonably believes that that force is necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible felony. No person in this state shall be placed in legal jeopardy of any kind whatsoever for protecting the person or a third person by reasonable means necessary.
    (b) A person:
    (1) is justified in using reasonable force, including deadly force, against another person; and
    (2) does not have a duty to retreat;
    if the person reasonably believes that the force is necessary to prevent or terminate the other person's unlawful entry of or attack on the person's dwelling, or curtilage, or occupied motor vehicle.
    (c) With respect to property other than a dwelling, or curtilage, or an occupied motor vehicle, a person is justified in using reasonable force against another person if the person reasonably believes that the
    force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in the person's possession, lawfully in possession of a member of the person's immediate family, or belonging to a person whose property the person has authority to protect. However, a person:

    (1) is not justified in using deadly force; unless and
    (2) does not have a duty to retreat;
    only if that force is justified under subsection (a).
    (d) A person is justified in using reasonable force, including deadly force, against another person and does not have a duty to retreat if the person reasonably believes that the force is necessary to prevent or stop the other person from hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight. For purposes of this subsection, an aircraft is considered to be in flight while the aircraft is:
    (1) on the ground in Indiana:
    (A) after the doors of the aircraft are closed for takeoff; and
    (B) until the aircraft takes off;
    (2) in the airspace above Indiana; or
    (3) on the ground in Indiana:
    (A) after the aircraft lands; and
    (B) before the doors of the aircraft are opened after landing.
    (e) Notwithstanding subsections (a), (b), and (c), a person is not justified in using force if:
    (1) the person is committing or is escaping after the commission of a crime;
    (2) the person provokes unlawful action by another person with intent to cause bodily injury to the other person; or
    (3) the person has entered into combat with another person or is the initial aggressor unless the person withdraws from the encounter and communicates to the other person the intent to do so and the other person nevertheless continues or threatens to continue unlawful action.
    (f) Notwithstanding subsection (d), a person is not justified in using force if the person:
    (1) is committing, or is escaping after the commission of, a crime;
    (2) provokes unlawful action by another person, with intent to cause bodily injury to the other person; or
    (3) continues to combat another person after the other person withdraws from the encounter and communicates the other person's intent to stop hijacking, attempting to hijack, or otherwise seizing or attempting to seize unlawful control of an aircraft in flight
     
    Rating - 100%
    1   0   0
    Jul 3, 2008
    3,619
    63
    central indiana
    I mean to say that if the defendant felt as though the three people on his property were attempting to take the bulldozer without his consent ( It is noted in the case that there was a verbal agreement that the dozer was to remain with Nanz for a debt owed *unless I misread it * ) and he used a firearm to prevent the criminal trespass and theft of the property (dozer) that is rightfully within his possession that the bill that was signed into law (Quoted below) in Indiana in 2006 would have protected him from prosecution or at least proved him innocent of unlawfully pointing a firearm.

    For someone to show up a YEAR after abandoning a piece of equipment trying to get it back with two others after agreeing to leave it with the homeowner as payment for a debt would lead me to believe he was trying to strong arm Nanz into giving up a dozer that he rightfully owned.

    Now, this is complicated by the fact that apparently Nanz spit on someone and I'm sure there's a lot of "Flavor" that we're missing out on in this description but I belive that if someone is supposed to do something for me that I've paid them for, they don't do the job and instead of getting my money back, they leave a piece of equipment with me and they return A YEAR later with friends to try and force me to let them take it, I'm fully justified in defending my rightfully possessed property with a firearm, whether I'm forced to discharge it or not.

    The law did not change that much in 2001 .. You still can not use deadly force to protect property outside of your dwelling..


    "Nonetheless, Nantz argues that his actions were justified because he was defending his property. Ind. Code § 35-41-3-2 (c), provides the following with regard to whether a person may use force to defend his or her property:
    With respect to property other than a dwelling or curtilage, a person is justified in using reasonable force against another person if he reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in his possession, lawfully in possession of a member of his immediate family, or belonging to a person whose property he has authority to protect. However, a person is not justified in using deadly force unless that force is justified under subsection (a) of this section. See footnote
    "
     

    Timjoebillybob

    Grandmaster
    Rating - 100%
    1   0   0
    Feb 27, 2009
    9,362
    149
    it seems in NANTZ a barn is not part of curtalige..

    The law did not change that much in 2001 .. You still can not use deadly force to protect property outside of your dwelling..


    "Nonetheless, Nantz argues that his actions were justified because he was defending his property. Ind. Code § 35-41-3-2 (c), provides the following with regard to whether a person may use force to defend his or her property:
    With respect to property other than a dwelling or curtilage, a person is justified in using reasonable force against another person if he reasonably believes that the force is necessary to immediately prevent or terminate the other person's trespass on or criminal interference with property lawfully in his possession, lawfully in possession of a member of his immediate family, or belonging to a person whose property he has authority to protect. However, a person is not justified in using deadly force unless that force is justified under subsection (a) of this section. See footnote
    "

    What I don't get about this is he is justified in using reasonable force if he reasonably believes that it is necessary. Pointing a firearm at someone is not against the law if you are justified in using reasonable force.
    IC 35-47-4-3
    Pointing firearm at another person
    Sec. 3. (a) This section does not apply to a law enforcement officer who is acting within the scope of the law enforcement officer's official duties or to a person who is justified in using reasonable force against another person under:
    (1) IC 35-41-3-2; or
    (2) IC 35-41-3-3.
    (b) A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.

    Whether it is deadly force or not doesn't matter, the state should of had to prove that he didn't have a right to use reasonable force to charge/convict him of it.
     
    Last edited:
    Rating - 100%
    1   0   0
    Jul 3, 2008
    3,619
    63
    central indiana
    What I don't get about this is he justified in using reasonable force if he reasonably believes that it is necessary. Pointing a firearm at someone is not against the law if you are justified in using reasonable force.
    IC 35-47-4-3
    Pointing firearm at another person
    Sec. 3. (a) This section does not apply to a law enforcement officer who is acting within the scope of the law enforcement officer's official duties or to a person who is justified in using reasonable force against another person under:
    (1) IC 35-41-3-2; or
    (2) IC 35-41-3-3.
    (b) A person who knowingly or intentionally points a firearm at another person commits a Class D felony. However, the offense is a Class A misdemeanor if the firearm was not loaded.

    Whether it is deadly force or not doesn't matter, the state should of had to prove that he didn't have a right to use reasonable force to charge/convict him of it.

    that court says otherwise...

    "****Consequently, to establish his defense of property defense, Nantz was required to prove that he used reasonable force to prevent or terminate a trespass or to defend his property or his family’s property or property he was authorized to protect. The State argues that the force used by Nantz, pointing a loaded gun at Petro, constitutes deadly force and thus, was unreasonable force under the statute. Since Nantz does not assert that he was attempting to protect himself or a third person and contends rather that he was defending his property interest in the bulldozer, he was prohibited under the statute from using deadly force. However, Nantz argues that he did not use deadly force; that instead his conduct constituted the threat of deadly force and that the threat of deadly force was reasonable force under the circumstances.
    "‘Deadly force’ means force that creates a substantial risk of serious bodily injury.” Ind. Code § 35-41-1-7. There appears to be no case in Indiana addressing whether the conduct at issue here, pointing a loaded firearm, constitutes deadly force as referred to in the defense of property statute, Ind. Code § 35-41-3-2 (c). However, in Spurlock v. State, 675 N.E.2d 312, 316 (Ind. 1996), our supreme court concluded that pointing a loaded firearm at a police officer was sufficient evidence to support a conviction for criminal recklessness. “A person commits criminal recklessness when he recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person.” Id. (citing Ind. Code § 35-42-..."
     
    Top Bottom