author: MATHIAS, Judge.

text:
    Thomas H. ANDREWS, Appellant, v. STATE of Indiana, Appellee.
    No. 29A02-1112-MI-1166.
    Court of Appeals of Indiana.
    Nov. 21, 2012.

      Cara Schaefer Wieneke, Wieneke Law Offices, LLC, Plainfield, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Thomas Andrews (“Andrews”) filed a petition in Hamilton Circuit Court requesting that his name be removed from Indiana’s sex offender registry. Specifically, Andrews, who was convicted of sex offenses in Massachusetts in 1984, argued that his name should be removed from the registry pursuant to our supreme court’s decision in Wallace v. State, 905 N.E.2d 371 (Ind.2009). Because we conclude that requiring Andrews to register as a sex offender violates Article 1, Section 24 of the Indiana Constitution prohibiting ex post facto laws, and that Indiana state courts do not have the authority to consider whether federal statutory penalties attach to Andrews’s conduct, we reverse and remand with instructions to the trial court to grant Andrews’s petition for removal from the sex offender registry.

Facts and Procedural History

In 1984, a grand jury in the Commonwealth of Massachusetts indicted Andrews for the following offenses under two separate cause numbers: six counts of rape and abuse of a child under cause number 84-1074 and two counts of indecent assault and battery of a child under the age of fourteen years under cause number 84-1075. Andrews pleaded guilty to four of the six counts of rape and abuse of a child and to both counts of assault and battery of a child. The court imposed consecutive sentences for the convictions under the separate cause numbers, and in the aggregate, Andrews was ordered to serve a minimal term of executed prison time with several years of probation. Ultimately, Andrews was discharged from his probation for all convictions on or about December 14,1989.

In 1993, Andrews, who had married, moved to Indiana to be closer to his wife’s family. In 1996, Andrews moved to Colorado, but then returned to Indiana in 1997. He has resided in Indiana since 1997. For over twenty-five years, Andrews has owned and operated a business that was eventually incorporated under Indiana law and does business as Pro Image & Associates, LLC. Andrews works from his home address, but travels to locations in and out of the state to meet with his company’s clients.

In 2006, the State of Indiana notified Andrews that he was required to register as a sexually violent predator, and that he was required to register for life. Andrews registered as required by the State. But, on January 6, 2011, Andrews filed a petition requesting removal of his name from the registry and arguing that pursuant to our supreme court’s 2009 decision in Wallace v. State, 905 N.E.2d 371 (Ind.2009), he is not required to register as a sex offender. The State opposed Andrews’s petition and the parties filed cross-motions for summary judgment.

The summary judgment hearing was held on November 17, 2011. At the hearing, the State argued that Wallace did not apply to Andrews’s circumstances, but also that Andrews was required to register as a sex offender under the federal Sex Offender Registration and Notification Act, which Congress passed in 2006 (hereinafter referred to as “USSORNA”). On November 30, 2011, the trial court granted the State’s motion for summary judgment and denied Andrews’s motion. Andrews now appeals.

I. Indiana’s Sex Offender Act and Wallace v. State

Indiana’s Sex Offender Registration Act (“INSORA”) currently codified at Indiana Code chapter 11-8-8 was first enacted in 1994. INSORA required persons convicted of certain sex crimes to register as sex offenders. But sex offenders convicted in another jurisdiction prior to the act’s June 30, 1994 effective date were not required to register. Moreover, the duty to register was prospective only and terminated when the offender was no longer on probation or discharged from parole. See Wallace, 905 N.E.2d at 375. Therefore, when Andrews moved to Indiana, he was not required to register as a sex offender under INSORA in effect at that time.

But in 2001, INSORA was amended to require all offenders convicted of certain sex offenses to register as sex offenders regardless of the date of their conviction. This change in the law was challenged under the Ex Post Facto Clause contained in the Indiana Constitution in Wallace. In that case, Wallace was charged with two counts of child molesting in 1988, and pleaded guilty to one count in 1989. Wallace completed his sentence and probation in 1992, two years before the General Assembly first passed the Act requiring persons convicted of child molesting to register as sex offenders.

In 2003, Wallace was notified that he was required to register as a sex offender. Wallace insisted that he was not required to register because his 1989 plea agreement did not require him to do so. Thereafter, Wallace was charged with Class D felony failing to register as a sex offender, and was found guilty as charged.

On appeal of his conviction, Wallace claimed that INSORA violated the ex post facto prohibitions of Article 1, Section 24 of the Indiana Constitution and Article 1, Section 10 of the United States Constitution because his crime was committed and his sentence was served before the Act was enacted in 1994. Our supreme court initially observed:

The United States Constitution provides that “[n]o State shall ... pass any ... ex post facto Law.” The Indiana Constitution provides that “[n]o ex post facto law ... shall ever be passed.” Among other things “[t]he ex post facto prohibition forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” The underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties.

Id. at 377 (internal citations omitted). The court then addressed Wallace’s claims only under the Indiana Constitutional provision and applied the “intent-effects” test to determine whether INSORA imposed punishment. After assuming without deciding that the General Assembly intended INSORA to be non-punitive, the court considered “whether the statutory scheme is so punitive in effect as to negate that intention thereby transforming what had been intended as a civil regulatory scheme into a criminal penalty.” Id. at 878.

To examine INSORA’s effects, our supreme court applied seven factors promulgated by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Those factors are

[1] [w]hether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

Id. at 379 (citing Mendoza-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554 (footnotes omitted)).

The court made the following observations with regard to each of the seven factors: 1) “the Act’s registration and notification provisions impose substantial disabilities on registrants” because “the Act imposes significant affirmative obligations and a severe stigma on every person to whom it applies[;]” 2) the Act’s “dissemination provision at least resembles the [historical] punishment of shaming” and are “comparable to supervised probation or parole[;]” 3) the Act “overwhelmingly applies to offenses that require a finding of scienter for there to be a conviction[;]” 4) the Act’s deterrent effect is substantial and promotes community condemnation of the offender, which are both included in the traditional aims of punishment; 5) the Act applies “only to behavior that is already, and exclusively, criminal[;]” 6) the “Act advances a legitimate purpose of public safety” to “protect the public from repeat offenders[;]” and 7) although the Act serves as a legitimate means to protect the public from sex offenders, the registration and disclosure requirements are not “tied to a finding that the safety of the public is threatened” because “information on all sex offenders [is] available to the general public without restriction and without regard to whether the individual poses any particular future risk.” Id. at 380-84.

After weighing the seven factors, and concluding that only the sixth factor weighed in favor of treating INSORA’s effects as regulatory and non-punitive, the court concluded that as applied to Wallace, “the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed.” Id. at 384. See also Hevner v. State, 919 N.E.2d 109, 112-13 (Ind.2010) (concluding that as applied to Hevner, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because on the date Hevner committed possession of child pornography, a first time offender was not classified as a sex offender under the Act); Cf. Jensen v. State, 905 N.E.2d 384, 394 (Ind.2009) (concluding that the effects of the Act are non-punitive when applied to Jensen because the “broad and sweeping” disclosure requirements were in place and applied to Jensen at the time of his guilty plea in 2000; therefore requiring him to register for life under the 2006 amendment to the Act does not violate Indiana’s constitutional prohibition against ex post fact laws); Herron v. State, 918 N.E.2d 682, 684 (Ind.Ct.App.2009) (citing Jensen and concluding that the. Act is not an ex post facto law as applied to Herron because he was required by Arizona to register as a sex offender when he committed his offense). In this case, Andrews argues that we need look no further than Wallace to determine that, as applied to Andrews, the Act violates Indiana’s prohibition against ex post facto laws.

At the summary judgment hearing, the State conceded that if Andrews’s offense had been committed in Indiana, like Wallace, Andrews would not be required to register under INSORA. Tr. pp. 38-34. But in its brief, the State argued because Andrews committed his offenses in Massachusetts he is not “entitled to the benefit of the ex post facto doctrine under the Indiana Constitution.” Appellee’s Br. at 19. The State also asserted that Andrews is required to register under Massachusetts law, and therefore he must register in Indiana as required by Indiana Code sections 11-8-8-4.5 and 5. Sections 11-8-8-4.5 and 5 define the term “sex offender” and “sex or violent offender” respectively and in part as “a person who is required to register as a sex offender in any jurisdiction[.]” And Indiana Code section 11-8-8-19(f) requires persons who must “register as a sex or violent offender in any jurisdiction” to “register for the period required by the other jurisdiction or the period described in” section 11-8-8-19, whichever is longer.

However, at the oral argument held in this appeal, the State conceded that Andrews is not required to register as a sex offender in Massachusetts as a matter of law. Specifically, Massachusetts’s sex offender registration system is distinct from Indiana’s in that offenders who committed their crimes prior to the law’s enactment are entitled to a hearing before the Sex Offender Registry Board to determine whether the offender poses a risk of reof-fending or is a danger to the community, and therefore, whether the sex offender is required to register at all. See Doe v. Sex Offender Registry Bd., 450 Mass. 780, 882 N.E.2d 298, 308-09 (2008).

In light of its concession that Andrews is not required to register under INSORA, the State is left only with its argument that Andrews has an independent duty to register under federal law. In 1994, Congress began to require States to maintain federally compliant systems for sex-offender registration and community notification. Failure to do so resulted in the loss of certain law enforcement funds.

“In an effort to make these state schemes more comprehensive, uniform, and effective, Congress in 2006 enacted [USSORNA] as part of the Adam Walsh Child Protection and Safety Act” for the stated purpose of protecting the public from sex offenders. Carr v. United States, -U.S.-, 130 S.Ct. 2229, 176 L.Ed.2d 1152 (2010); 42 U.S.C. § 16901. Rather than establishing a federal agency to implement USSORNA, Congress, through its spending power, Article I, Section 8, directed all states and the District of Columbia to create local registries that comply with specific national standards. 42 U.S.C. §§ 16911(10), 16912(a). Included in its many provisions,

[US]SORNA instructs States to maintain sex-offender registries that compile an array of information about sex offenders; to make this information publicly available online; to share the information with other jurisdictions and with the Attorney General for inclusion in a comprehensive national sex-offender registry; and to “provide a criminal penalty that includes a maximum term of imprisonment that is greater than 1 year for the failure of a sex offender to comply with the requirements of this sub-chapter.” Sex offenders, in turn, are required to “register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student,” and to appear in person periodically to “allow the jurisdiction to take a current photograph, and verify the information in each registry in which that offender is required to be registered.”

Id. at 2240-41 (citing 42 U.S.C. §§ 16913, 16914,16918-21).

USSORNA imposes a federal obligation on all sex offenders to register in each jurisdiction where the offender resides, works, and goes to school. Specifically, 42 U.S.C. § 16913, USSORNA’s registry requirements provide:

(a) In general
A sex offender [defined to include any offender who was convicted of a sex offense] shall register, and keep the registration current, in each jurisdiction where the offender resides, where the offender is an employee, and where the offender is a student....
(b) Initial registration
The sex offender shall initially register [either] before completing a sentence of imprisonment with respect to the offense giving rise to the registration requirement; or [for those not sentenced to prison] not later than 3 business days after being sentenced....
(c) Keeping the registration current
A sex offender shall [update his registration within] 3 business days after each change of name, residence, employment, or student status [by] appearing] in person in at least 1 jurisdiction involved ... and informing] that jurisdiction of all [relevant] changes....
(d) Initial registration of sex offenders unable to comply with subsection (b) The Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).

The Act also established a federal criminal offense covering any person who (1) “is required to register under [USSORNA],” (2) “travels in interstate or foreign commerce,” and (3) “knowingly fails to register or update a registration.” 18 U.S.C. § 2250. Congress’s intent in enacting 18 U.S.C. § 2250 was simply “to subject to federal prosecution sex offenders who elude [US]SORNA’s registration requirements by traveling in interstate commerce.” Carr, 130 S.Ct. at 2241.

The United States Supreme Court has considered two challenges to USSORNA by convicted sex offenders whose criminal acts occurred prior to USSORNA’s enactment, but because the issues raised were able to be resolved under the plain language of the Act, the Court declined to consider the petitioners’s constitutional challenges to USSORNA. In Carr, the United States Supreme Court examined whether 18 U.S.C. § 2250 “applies to sex offenders whose interstate travel occurred prior to USSORNA’s effective date.” 130 S.Ct. at 2288. The offender in Carr was convicted of a sex offense and completed his interstate travel prior to USSORNA’s effective date.

After examining the plain language of the statute, the Court held that “preenactment travel falls outside the statute’s compass” and stated:

Had Congress intended to subject any unregistered state sex offender who has ever traveled in interstate commerce to federal prosecution under § 2250, it easily could have adopted language to that effect. That it declined to do so indicates that Congress instead chose to handle federal and state sex offenders differently.... To the contrary, it is entirely reasonable for Congress to have assigned the Federal Government a special role in ensuring compliance with [USJSORNA’s registration requirements by federal sex offenders — persons who typically would have spent time under federal criminal supervision. It is similarly reasonable for Congress to have given the States primary responsibility for supervising and ensuring compliance among state sex offenders and to have subjected such offenders to federal criminal liability only when, after [USjSOR-NA’s enactment, they use the channels of interstate commerce in evading a State’s reach.

Id. at 2238.

In Reynolds v. United States, — U.S. -, 132 S.Ct. 975, 181 L.Ed.2d 935 (2012), the Court considered “the date on which this federal registration requirement took effect with respect to sex offenders convicted before [USSORNA] became law.” Id. at 978. The sex offender in Reynolds was convicted in 2001, but engaged in interstate travel after USSOR-NA’s enactment in 2007 and failed to update his registration. The offender relied on the following provision in 42 U.S.C. section 16913 to argue that USSORNA did not apply to him:

The Attorney General shall have the authority to specify the applicability of the [registration] requirements ... to sex offenders convicted before the enactment of this chapter or its implementation in a particular jurisdiction, and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).

On February 28, 2007, “the Attorney General promulgated an Interim Rule specifying that ‘[t]he requirements of [the Act] apply to all sex offenders, including sex offenders convicted of the offense for which registration is required prior to the enactment of that Act.’ ” Reynolds, 132 S.Ct. at 978 (citing 72 Fed.Reg. 8897 (codified at 28 C.F.R. § 72.3)). Despite promulgation of this Rule, the Court held that USSORNA’s registration requirements do not apply to pre-USSORNA offenders until the Attorney General “so specifies.” Id. at 984.

While the Supreme Court has declined to consider ex post facto challenges to USSORNA, the federal circuit courts of appeals have generally rejected ex post facto claims. In particular, the State argues the Seventh Circuit’s rejection of such a challenge in United States v. Leach, 639 F.3d 769 (7th Cir.2011), controls the outcome of this case. The sex offender at issue in Leach was convicted of child molesting in Indiana in 1990. Just before his release from prison in 1994, Indiana’s sex offender registration statute went into effect. When he moved from Indiana to South Carolina in 2008, he failed to notify law enforcement officials in either state that he had changed his residence. Although he eventually reported his move to an Indiana child support enforcement official, he never notified South Carolina authorities of his residence within that jurisdiction.

Leach was eventually arrested and returned to Indiana where he was indicted in federal court for failing to register as a sex offender after traveling in interstate commerce in violation of USSORNA. Leach moved to dismiss the indictment alleging he was indicted in violation of the Ex Post Facto Clauses of the United States and Indiana Constitutions. The district court denied the motion, and Leach entered a conditional guilty plea while preserving his right to appeal.

The Seventh Circuit first addressed Leach’s argument that USSORNA violates the Ex Post Facto Clause under the Indiana Constitution and his reliance on Wallace v. State. The court rejected the challenge, stating:

[T]he question before us is not whether Indiana has adopted a compliant registration system (an issue relating only to its entitlement to certain federal funds, see Carr, 130 S.Ct. at 2232), nor is it whether [USjSORNA — a federal statute — “complies” with the law of any particular state. The Supremacy Clause establishes that state constitutional provisions cannot override federal statutes. See U.S. CONST, art. VI, cl. 2; see also United States v. Baer, 235 F.3d 561, 562 (10th Cir.2000). And even if Indiana’s system were flawed (a point on which we express no opinion), Leach was also required to register in South Carolina and did not. We are thus left only with Leach’s argument that [USjSORNA violates the Ex Post Facto Clause of the United States Constitution.

Id. at 772. The Seventh Circuit then rejected Leach’s federal ex post facto claim because “[a] sex offender violates the statute when, at any time after [USjSORNA was enacted, he travels in interstate commerce and then fails to register. Because the law targets only the conduct undertaken by convicted sex offenders after its enactment, it does not violate the Ex Post Facto Clause.” Id. at 773 (citations omitted). Finally, the court stated that US-SORNA’s registration requirements are triggered without respect to the date of the conviction and federal guidelines require pre-USSORNA offenders to comply with those requirements. “But that does not make them retrospective: [USjSOR-NA merely creates new, prospective legal obligations based on the person’s prior history.” Id. at 773.

Turning to our consideration of whether Andrews is required to register on Indiana’s state registry in light of the Leach decision, we first observe that Leach’s circumstances are factually distinct from those in this case. Leach failed to re-register as a sex offender when he moved to South Carolina in 2008. He was then prosecuted under federal law, in federal district court under 18 U.S.C. § 2250. The Seventh Circuit briefly considered Leach’s Wallace argument, but in the end, indicated that whether Leach was required to register under Indiana’s Act was unavailing because he was required to register in South Carolina under USSORNA, and failed to do so. See id. at 722.

Indiana is the only state that has ever required Andrews to register as a sex offender, and he has resided in Indiana since 1997. But while Andrews may have a federal duty to register under USSORNA if he engages in interstate travel, and could be subject to prosecution in federal district court under 18 U.S.C. § 2250, if he fails to do so, this is not the issue before us.

Andrews has filed his petition in Indiana state court seeking removal of his name from Indiana’s sex offender registry. After acknowledging that our state sex offender registry law does not run afoul of the Ex Post Facto Clause of the United States Constitution, our supreme court concluded in Wallace that Hoosiers are entitled to greater protection under the prohibition on ex post facto laws contained in the Indiana Constitution. Greater protection of Hoosiers’s rights under the Indiana Constitution is not an uncommon principle in our state’s jurisprudence. See Wallace, 905 N.E.2d at 378 (quoting State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.2002)) (stating “[t]he Indiana Constitution has unique vitality, even where its words parallel federal language”).

Andrews, who on the record before us is an apparently rehabilitated and productive citizen of our state, was convicted of a sex offense almost thirty years ago, and well before Indiana enacted INSORA. Accordingly, pursuant to our supreme court’s opinion in Wallace, we must conclude that Andrews’s petition for removal of his name from Indiana’s sex offender registry should have been granted.

Reversed and remanded with instructions to grant Andrews’s petition for removal of his name and any other identifying information from Indiana’s sex offender registry.

VAIDIK, J. and BARNES, J., concur.

      . We heard oral argument in this case on September 5, 2012, at the Robert H. McKinney School of Law in Indianapolis, Indiana. We commend counsel for their superb oral advocacy, and we thank the students, faculty, and school personnel for their hospitality.

      . The Act was formerly codified in Indiana Code chapter 5-2-12.

      .The court observed that Indiana’s Act was similar to Alaska's Act, which the United States Supreme Court concluded does not violate the Ex Post Facto Clause of the United States Constitution. Id. at 378 (citing Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003)). However, the offender in Doe later challenged Alaska’s Act under its State Constitution. The Alaska Supreme Court held that the Act’s "registration, disclosure, and dissemination provisions violate the protection against ex post facto laws afforded by the Alaska Constitution as it applies to defendants who committed their crimes before the legislature enacted ASORA[.]" Doe v. State, 189 P.3d 999, 1019 (Alaska 2008).

      . Like most states, Indiana has not fully implemented USSORNA.

      . The Reynolds Court did not consider whether under the February 28, 2007 Interim Rule, the Attorney General had validly specified the application of the registration requirements to pre-Act offenders. Pre-and post-Reynolds, there has been significant discussion among the federal circuits as to whether the Interim Rule or subsequent guidelines issued by the Attorney General fulfill the requirements of 42 U.S.C. section 16913(d). See e.g. United States v. Gould, 568 F.3d 459, 469-70 (4th Cir.2009) (noting that the Fourth, Seventh, and Eleventh Circuits have concluded that the Interim Rule was a valid specification of the applicability of the registration requirements to Pre-Act offenders): but see U.S. v. Stevenson, 676 F.3d 557, 560 (6th Cir.2012) (holding that issuance of the rule did not comply with the notice and comment procedures prescribed by the Administrative Procedures Act); United States v. Valverde, 628 F.3d 1159, 1162 (9th Cir.2010).

      . The Seventh Circuit briefly addressed the issue of venue because Leach was arrested in South Carolina. However, because Leach was required to update his registration in Indiana when he left the state under USSOR-NA, but failed to do so, the court observed that venue was proper in either Indiana or South Carolina had the federal government opted to prosecute there. Id. at 772.

      . The U.S., Department of Justice recognizes that sex offender registration is conducted at the state level and that each jurisdiction has the authority to determine which offenders will be required to register. Moreover, the federal government acknowledges that despite SORNA, a jurisdiction should not register an offender unless the offender is required to register under the jurisdiction’s laws. Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking, U.S. Department of Justice, Sex Offender Registration and Notification in the United States: Current Case Law and issues (July 2012).

      . Acknowledging that some provisions of US-SORNA may not pass state constitutional muster, Congress enacted 42 U.S.C. § 16925, which contains the stated goal of bringing states into substantial compliance with US-SORNA to assist the state in avoiding the loss of federal funding. Specifically, that section provides in pertinent part:
      (b) State constitutionality
      (1)In general
      When evaluating whether a jurisdiction has substantially implemented this subchapter, the Attorney General shall consider whether the jurisdiction is unable to substantially implement this subchapter because of a demonstrated inability to implement certain provisions that would place the jurisdiction in violation of its constitution, as determined by a ruling of the jurisdiction’s highest court.
      (2) Efforts
      If the circumstances arise under paragraph (1), then the Attorney General and the jurisdiction shall make good faith efforts to accomplish substantial implementation of this subchapter and to reconcile any conflicts between this subchapter and the jurisdiction’s constitution. In considering whether compliance with the requirements of this subchapter would likely violate the jurisdiction's constitution or an interpretation thereof by the jurisdiction’s highest court, the Attorney General shall consult with the chief executive and chief legal officer of the jurisdiction concerning the jurisdiction’s interpretation of the jurisdiction’s constitution and rulings thereon by the jurisdiction’s highest court.
      (3) Alternative procedures
      If the jurisdiction is unable to substantially implement this subchapter because of a limitation imposed by the jurisdiction's constitution, the Attorney General may determine that the jurisdiction is in compliance with this chapter if the jurisdiction has made, or is in the process of implementing reasonable alternative procedures or accommodations, which are consistent with the purposes of this chapter.

      . See e.g. Litchfield v. State, 824 N.E.2d 356, 363 (Ind.2005) (noting that searches of trash are generally permissible under the Fourth Amendment, but applying a stricter analysis under Article 1, Section 11 of the Indiana Constitution and concluding that generally it is "not reasonable for law enforcement to search indiscriminately through people's trash").


source: Caselaw Access Project

author: BARNES, Judge.

license: Public Domain

text:
    PEABODY ENERGY CORPORATION, Peabody Coal Company, LLC, and Black Beauty Coal Company, Appellants-Defendants and Third-Party Plaintiffs, v. Richard F. ROARK, Appellee-Plaintiff, and Beelman Truck Company, Appellee-Third Party Defendant, and North American Capacity Insurance Company, Appellee-Third Party Counterclaim Plaintiff and Third Party Defendant.
    No. 14A01-1112-CT-555.
    Court of Appeals of Indiana.
    Nov. 30, 2012.
    Patrick A. Shoulders, Jean M. Blanton, Ziemer Stayman Weitzel & Shoulders, Evansville, IN, Karl L. Mulvaney, Nana Quay-Smith, Bingham Greenbaum Doll, LLP, Indianapolis, IN, Attorneys for Appellants.
    Todd A. Croftchik, Seipp & Flick, LLP, Lake Mary, FL, Attorney for Appellee, Beelman Truck Company.
    Julia Blackwell Gelinas, Maggie L. Smith, Dean R. Brackenridge, Carrie G. Doehrmann, Frost Brown Todd, LLC, Indianapolis, IN, Attorneys for Appellee, North American Capacity Insurance Company.
   OPINION ON REHEARING

BARNES, Judge.

North American Capacity Insurance Company (“NAC”) petitions for rehearing following our opinion in Peabody Energy Corp. v. Roark, 973 N.E.2d 636 (Ind.Ct.App.2012). We grant NAC’s petition for rehearing; however, we affirm our opinion in all regards.

In our original opinion, we were asked to determine whether Peabody Energy Corporation, Peabody Coal Company, LLC, and Black Beauty Coal Company (collectively, “Peabody”) were additional insureds under an insurance policy (“the Policy”) issued by NAC to Beelman Truck Company (“Beelman”). After considering the language of the Policy’s additional insured endorsement and the designated evidence, we concluded that, because Richard Roark’s injuries arose out of Beelman’s operations, Peabody was an additional insured under the Policy. Peabody, 973 N.E.2d at 642.

In its petition for rehearing, NAC asserts that, although our opinion refers to “coverage,” the opinion does not explain whether NAC had a duty to indemnify or only a duty to defend. NAC claims that an open-ended obligation by NAC to indemnify Peabody would be premature because the underlying case against Peabody is still ongoing and it has not been determined whether Peabody is liable to Roark for any damages. NAC asks us to hold that it only owes a duty to defend and to reserve the determination regarding its duty to indemnify until the underlying case against Peabody has been resolved.

Although NAC’s appellee’s brief acknowledged the general principle that an insurer’s duty to defend is broader than its duty to indemnify, NAC made no argument distinguishing between its potential obligation to defend and its potential obligation to indemnify Peabody based on the facts of the case or the language of the Policy. Nor did NAC argue that it would be premature to determine whether it owed a duty to indemnify at this stage in the proceedings. Instead, throughout its brief, NAC maintained that Peabody was “not entitled to defense or indemnity” from NAC because Peabody was not an additional insured under the Policy. NAC’s Br. pp. 8,15, 21, 23.

It is well settled that any question not argued on appeal cannot be raised for the first time in a petition for rehearing. Carey v. Haddock, 881 N.E.2d 1050,1051 (Ind.Ct.App.2008), opinion on reh’g, trans. denied. Accordingly, NAC may not argue for the first time in its petition for rehearing that it only has a duty to defend Peabody or that it is premature to determine whether it owes a duty to indemnify Peabody. We affirm our opinion in all regards.

VAIDIK, J., and MATHIAS, J., concur.

      . NAC used the term "coverage” throughout its appellee’s brief to describe what the additional insured endorsement does and does not provide to an additional insured. See NAC’s Br. pp. 1, 6, 7, 8, 23. NAC also used the term "coverage” repeatedly in its analysis of other cases.


text:
    STATE of Indiana, Appellant, v. Terry J. HOUGH, Appellee.
    No. 64A05-1203-MI-113.
    Court of Appeals of Indiana.
    Dec. 3, 2012.
    Gregory F. Zoeller, Attorney General of Indiana, Frances Barrow, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellant.
    Kathleen M. Sweeney, Indianapolis, IN, Attorney for Appellee.
   OPINION

MATHIAS, Judge.

Terry Hough (“Hough”) filed a petition in Porter Superior Court requesting that his name be removed from Indiana’s sex offender registry. Specifically, Hough, who was convicted of rape in Pennsylvania in 1993, argued that his name should be removed from the registry pursuant to our supreme court’s decision in Wallace v. State, 905 N.E.2d 371 (Ind.2009). The trial court granted Hough’s petition and the State appeals. Specifically, the State argues that Hough should not be removed from the sex offender registry because he would still be required to register under Pennsylvania’s registry law, and he has an independent duty to register as a sex offender under the federal Sex Offender Registration and Notification Act.

We affirm.

Facts and Procedural History

In 1993, Hough was convicted of rape in Montgomery County, Pennsylvania. He was ordered to serve two to five years incarceration. Hough was released to parole in 1997, and he completed his parole in 1998. Shortly after completing his parole, Hough moved to Indiana.

Pennsylvania enacted its first sex offender registry law, known as Megan’s law, in 1996, while Hough was incarcerated in,that jurisdiction. But Pennsylvania officials did not require Hough to register as a sex offender upon release from incarceration and/or parole because he notified Pennsylvania officials of his move to Indiana. Hough was told that he would be subject to Indiana’s registration requirement, and he did register in Indiana. Appellant’s App. p. 32. Hough also registered in Illinois because he was employed in that state. However, in 2007, Hough received a notice from the State of Illinois that he was no longer required to register as a sex offender. Appellant’s App. p. 34.

On August 19, 2010, Hough filed a petition to remove himself from the Indiana sex offender registry. Hough claimed that he should be removed because his conviction occurred before Indiana and Pennsylvania enacted their sex offender registry laws, and argued that, pursuant to Wallace v. State, 905 N.E.2d 371 (Ind.2009), his petition should be granted. In response, the State argued that under Pennsylvania’s current sex offender registry law, Hough would be required to register for life, and therefore, Wallace is inapplicable to Hough’s situation. The State also claimed that Hough has an independent duty to register under the federal Sex Offender Registration and Notification Act.

After holding a hearing on Hough’s petition, the trial court issued an order granting Hough’s petition to remove his name from the Indiana sex offender registry. The State filed a motion to correct error, which the trial court denied on February 10, 2012. The State now appeals.

I. Indiana’s Sex Offender Act and Wallace v. State

Indiana’s Sex Offender Registration Act (“INSORA”) currently codified at Indiana Code chapter 11-8-8 was first enacted in 1994. INSORA required persons convicted of certain sex crimes to register as sex offenders. But sex offenders convicted in another jurisdiction prior to the Act’s June 30, 1994 effective date were not required to register. Moreover, the duty to register was prospective only and terminated when the offender was no longer on probation or discharged from parole. See Wallace, 905 N.E.2d at 375.

But in 2001, INSORA was amended to require all offenders convicted of certain sex offenses to register as sex offenders regardless of the date of their conviction. This change in the law was challenged under the Ex Post Facto Clause contained in the Indiana Constitution in Wallace. In that case, Wallace was charged with two counts of child molesting in 1988, and he pleaded guilty to one count in 1989. Wallace completed his sentence and probation in 1992, two years before the General Assembly first passed the Act requiring persons convicted of child molesting to register as sex offenders.

In 2003, Wallace was notified that he was required to register as a sex offender. Wallace insisted that he was not required to register because his 1989 plea agreement did not require him to do so. Thereafter, Wallace was charged with Class D felony failing to register as a sex offender, and was found guilty as charged.

On appeal of his conviction, Wallace claimed that INSORA violated the ex post facto prohibitions of Article 1, Section 24 of the Indiana Constitution and Article 1, Section 10 of the United States Constitution because his crime was committed and his sentence was served before the Act was enacted in 1994. Our supreme court initially observed:

The United States Constitution provides that “[n]o State shall ... pass any ... ex post facto Law.” The Indiana Constitution provides that “[n]o ex post facto law ... shall ever be passed.” Among other things “[t]he ex post facto prohibition forbids the Congress and the States to enact any law ‘which imposes a punishment for an act which was not punishable at the time it was committed; or imposes additional punishment to that then prescribed.’ ” The underlying purpose of the Ex Post Facto Clause is to give effect to the fundamental principle that persons have a right to fair warning of that conduct which will give rise to criminal penalties.

Id. at 377 (internal citations omitted). The court then addressed Wallace’s claims only under the Indiana Constitutional provision and applied the “intent-effects” test to determine whether INSORA imposed punishment. After assuming without deciding that the General Assembly intended INSORA to be non-punitive, the court considered “whether the statutory scheme is so punitive in effect as to negate that intention thereby transforming what had been intended as a civil regulatory scheme into a criminal penalty.” Id. at 378.

To examine INSORA’s effects, our supreme court applied seven factors promulgated by the United States Supreme Court in Kennedy v. Mendoza-Martinez, 372 U.S. 144, 168-69, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963). Those factors are

[wjhether the sanction involves an affirmative disability or restraint, [2] whether it has historically been regarded as a punishment, [3] whether it comes into play only on a finding of scienter, [4] whether its operation will promote the traditional aims of punishment-retribution and deterrence, [5] whether the behavior to which it applies is already a crime, [6] whether an alternative purpose to which it may rationally be connected is assignable for it, and [7] whether it appears excessive in relation to the alternative purpose assigned.

Id. at 379 (citing Mendozar-Martinez, 372 U.S. at 168-69, 83 S.Ct. 554 (footnotes omitted)).

The court made the following observations with regard to each of the seven factors: 1) “the Act’s registration and notification provisions impose substantial disabilities on registrants” because “the Act imposes significant affirmative obligations and a severe stigma on every person to whom it applies!;]” 2) the Act’s “dissemination provision at least resembles the [historical] punishment of shaming” and are “comparable to supervised probation or parolef;]” 3) the Act “overwhelmingly applies to offenses that require a finding of scienter for there to be a conviction!;]” 4) the Act’s deterrent effect is substantial and promotes community condemnation of the offender, which are both included in the traditional aims of punishment; 5) the Act applies “only to behavior that is already, and exclusively, criminal!;]” 6) the “Act advances a legitimate purpose of public safety” to “protect the public from repeat offenders!;]” and 7) although the Act serves as a legitimate means to protect the public from sex offenders, the registration and disclosure requirements are not “tied to a finding that the safety of the public is threatened” because “information on all sex offenders [is] available to the general public without restriction and without regard to whether the individual poses any particular future risk.” Id. at 380-84.

After weighing the seven factors, and concluding that only the sixth factor weighed in favor of treating INSORA’s effects as regulatory and non-punitive, the court concluded that as applied to Wallace, “the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because it imposes burdens that have the effect of adding punishment beyond that which could have been imposed when his crime was committed.” Id. at 384. See also Hevner v. State, 919 N.E.2d 109, 112-13 (Ind.2010) (concluding that as applied to Hevner, the Act violates the prohibition on ex post facto laws contained in the Indiana Constitution because on the date Hevner committed possession of child pornography, a first time offender was not classified as a sex offender under the Act); Cf. Jensen v. State, 905 N.E.2d 384, 394 (Ind.2009) (concluding that the effects of the Act are non-punitive when applied to Jensen because the “broad and sweeping” disclosure requirements were in place and applied to Jensen at the time of his guilty plea in 2000; therefore requiring him to register for life under the 2006 amendment to the Act does not violate Indiana’s constitutional prohibition against ex post facto laws); Herron v. State, 918 N.E.2d 682, 684 (Ind.Ct.App.2009) (citing Jensen and concluding that the Act is not an ex post facto law as applied to Herron because he was required by Arizona to register as a sex offender when he committed his offense). In this case, Hough argues that we need look no further than Wallace to determine thát, as applied to Hough, the Act violates Indiana’s prohibition against ex post facto laws.

The State does not dispute that if Hough’s offense had been committed in Indiana, he would not be required to register for the reasons expressed in Wallace. However, the State asserts that Hough is required to register for life under Pennsylvania’s sex offender registry law, and therefore he must register in Indiana as required by Indiana Code sections 11-8-8-4.5 and 5. Sections 11-8-8-4.5 and 5 define the term “sex offender” and “sex or violent offender” respectively and in part as “a person who is required to register as a sex offender in any jurisdictionf.]” And Indiana Code section 11-8-8-19© requires persons who must “register as a sex or violent offender in any jurisdiction” to “register for the period required by the other jurisdiction or the period described in” section 11-8-8-19, whichever is longer.

The State claims that Hough would be required to register as a sex offender for life in Pennsylvania if he resided in that state. See 42 Pa.C.S.A. § 9795.1(b). While Hough was serving his sentence for rape, Pennsylvania enacted its first sex offender registration law, known as Megan’s Law, and the registration portion of the statute took effect on April 21, 1996. When Hough was released from prison in 1997, he would have been classified as a sexually violent predator under Megan’s Law, which might have required that he register as a sex offender for life. See Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593, 595 (1999). But the Williams court held that the sexually violent predator provisions of the Act violated the procedural due process guarantees of the Fourteenth Amendment, and struck all of the relevant provisions of Megan’s Law I pertaining to sexually violent predators. Id. at 607-08.

Thereafter, on May 10, 2000, Megan’s Law I was amended, and the amended version, Megan’s Law II, went into effect on July 9, 2000. Under Megan’s Law II, which is the law currently in effect in Pennsylvania, an offender convicted of rape is required to register for life. See 42 Pa.C.S.A. § 9795.1(b). Pennsylvania’s courts have repeatedly held that the Megan’s Law’s registration requirements are not punitive and do not implicate the ex post facto clauses of the federal and state constitutions. See e.g. Commonwealth v. Williams, 574 Pa. 487, 832 A.2d 962, 984 (2003). We agree with the State that if he resided in Pennsylvania, Hough would be required to register as a sex offender for life. Commonwealth v. Wilson, 589 Pa. 559, 910 A.2d 10, 15-16 (2006); Commonwealth v. Gaffney, 557 Pa. 327, 733 A.2d 616, 622 (1999).

Our court recently considered circumstances similar to those presented in this case in Burton v. State, 977 N.E.2d 1004 (Ind.Ct.App.2012). The sex offender in Burton was convicted in Illinois of aggravated criminal sexual assault in 1987. After he served his six-year sentence, Illinois enacted its sex offender registration law under which Burton was required to register as a sex offender for ten years. He was later convicted of sex offender registration violations in 2003 and 2007. Because the ten-year registration period started over after his 2007 violation, Illinois law would require Burton to register in Illinois if he resided there. After moving to Indiana in 2009, he was convicted of failing to register as a sex or violent offender in our state and was sentenced to one year incarceration. When he was released from prison, Burton registered as a sex offender until October 2009, but failed to register thereafter. In April 2011, Burton was charged with failing to register pursuant to Indiana Code section 11 — 8—8— 17. Burton unsuccessfully moved to dismiss the charges on the ground that the requirement to register violated the ex post facto provision of the Indiana Constitution.

Responding to Burton’s appeal of the denial of his motion to dismiss, the State argued that Burton was required to register in Illinois when he moved to Indiana and therefore the requirement to register in Indiana imposed no additional burden on him. Observing that if Burton’s sex offense had occurred in Indiana, Wallace would dictate dismissal of the charges, we concluded that as a resident of Indiana, “Burton has the protection of our constitution as to the application of our [INSORA], without regard to the fact that he was convicted of the qualifying sex offense in Illinois. It is for us, not Illinois, to determine who is required to register under our” Act. Id. at 1009.

We also rejected the State’s claim that Burton should be required to register in Indiana under the Full Faith and Credit Clause of the United States Constitution. Our court concluded that the clause was not implicated in Burton’s case because the “requirement by Illinois under its law that Burton register as a sex offender in Illinois is no more than that; it is not a requirement to register anywhere else.... Our decision has no effect on the enforcement of the Illinois requirement.” Id. at 1010.

We reach the same conclusion in this case. As a resident of Indiana since 1998, Hough is entitled to the protections afforded to him by the Indiana Constitution. Therefore, even though he would be required to register as a sex offender under Pennsylvania’s laws, Indiana’s law controls. Because he was convicted of a sex offense before Indiana enacted INSORA, requiring Hough to register as a sex offender would violate Indiana’s constitutional prohibition against ex post facto laws. See Wallace, 905 N.E.2d at 384.

We are mindful of the State’s concern that by failing to require registration, Indiana will become a haven for sex offenders. However, we can reasonably conclude that the number of sex offenders who might not be required to register pursuant to our supreme court’s decision in Wallace is relatively small. As our court noted in Burton, “[a]ny haven would be only for those who, under our constitution, could not be compelled to register in violation of our state’s prohibition of ex post facto laws.” Op. at 1010.

Finally, the State argues that Hough has a separate registration requirement under the federal Sex Offender Registration and Notification Act (“USSORNA”). We recently considered this argument in Andrews v. State, 978 N.E.2d 494 (Ind.Ct.App.2012). Like the circumstances presented in this case, Andrews was convicted of a sex offense in another state before Indiana enacted INSORA. The State conceded that Andrews was not required to register as a sex offender in Massachusetts, the state where he was convicted of a sex offense. Concluding that Andrews’s duty to register as a sex offender under USSORNA and any resulting federal criminal prosecution if he fails to register was not dispositive of our resolution of whether he was required to register under INSO-RA, we observed:

Indiana is the only state that has ever required Andrews to register as a sex offender, and he has resided in Indiana since 1997. But while Andrews may have a federal duty to register under US-SORNA if he engages in interstate travel, and could be subject to prosecution in federal district court under 18 U.S.C. § 2250, if he fails to do so, this is not the issue before us.
Andrews has filed his petition in Indiana state court seeking removal of his name from Indiana’s sex offender registry. After acknowledging that our state sex offender registry law does not run afoul of the Ex Post Facto Clause of the United States Constitution, our supreme court concluded in Wallace that Hoosiers are entitled to greater protection under the prohibition on ex post facto laws contained in the Indiana Constitution. Greater protection of Hoosiers’s rights under the Indiana Constitution is not an uncommon principle in our state’s jurisprudence. See Wallace, 905 N.E.2d at 378 (quoting State v. Gerschoffer, 763 N.E.2d 960, 965 (Ind.2002)) (stating “[t]he Indiana Constitution has unique vitality, even where its words parallel federal language”).

Op. at 502-03.

Likewise, in the case before us, Indiana is the only state that currently requires Hough to register as a sex offender, and he has resided in our state since 1998. Pursuant to our supreme court’s decision in Wallace, to continue to require that Hough register as a sex offender for a conviction pre-dating the enactment of IN-SORA would violate Indiana’s constitutional prohibition against ex post facto laws. See Ind. Const. Art. 1, § 24; 905 N.E.2d at 384. For all of these reasons, we affirm the trial court’s order granting Hough’s petition to remove his name from the Indiana sex offender registry.

Affirmed.

VAIDIK, J., and BARNES, J., concur.

      . The Act was formerly codified in Indiana Code chapter 5-2-12.

      . The court observed that Indiana’s Act was similar to Alaska’s Act, which the United States Supreme Court concluded does not violate the Ex Post Facto Clause of the United States Constitution. Id. at 378 (citing Smith v. Doe, 538 U.S. 84, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003)). However, the offender in Doe later challenged Alaska’s Act under its state Constitution. The Alaska Supreme Court held that the Act’s "registration, disclosure, and dissemination provisions violate the protection against ex post facto laws afforded by the Alaska Constitution as it applies to defendants who committed their crimes before the legislature enacted ASORA[.]” Doe v. State, 189 P.3d 999, 1019 (Alaska 2008).

      . Had Hough remained in Pennsylvania, he would have been presumed to be a sexually violent predator, but he would have been assessed by the State Board to Assess Sexually Violent Predators. The Board was required to submit a written report to the trial court, and the court would then make an ultimate determination of the offender's status. See Commonwealth v. Williams, 557 Pa. 285, 733 A.2d 593, 597 (1999).

      . We also rejected the State’s argument that because Burton’s continued obligation to register in Illinois stemmed from his 2007 conviction for failure to register, his obligation to register in Indiana does not violate our state’s ex post facto clause. Our court concluded that the date of Burton’s 1987 conviction and it is the law in place on the date of the offense that is relevant to the ex post facto analysis. Op. at 1009-10.


text:
    Jerry VANZYLL, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 34A02-1111-CR-1050.
    Court of Appeals of Indiana.
    Dec. 4, 2012.

      Randy Hainlen and Jeffery W. Elftman, Kokomo, IN, Attorneys for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Monika Prekopa Talbot and Eric Babbs, Deputies Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

MATHIAS, Judge.

Jerry Vanzyll (“Vanzyll”) was convicted in Howard Superior Court of Class B felony dealing in methamphetamine, Class D felony possession of methamphetamine, Class D felony possession of chemical reagents or precursors with intent to manufacture a controlled substance, and Class A misdemeanor resisting law enforcement. Vanzyll appeals his convictions and raises the following three issues:

I. Whether the trial court abused its discretion by allowing a Howard County Jail Guard to testify that Vanzyll admitted to writing a letter that was found at the jail, which was admitted as an exhibit at trial;
II. Whether the evidence was sufficient to prove that Vanzyll resisted law enforcement; and,
III. Whether the evidence was sufficient to prove that Vanzyll manufactured methamphetamine.

We affirm in part, remand in part, and reverse for proceedings consistent with opinion.

Facts and Procedural History

On August 24, 2010, the Howard County Drug Task Force and the Kokomo Police Department SWAT Team were conducting surveillance of a residence in Kokomo, Indiana because the police department had received information that Vanzyll and another individual residing at the residence were manufacturing and selling methamphetamine. During their surveillance, the officers obtained sufficient information to believe that they could apply for and obtain a search warrant of the residence.

To secure the residence prior to obtaining the warrant, officers approached the front and back doors of the home. Officer Brad Reed was wearing a police raid vest and badge. He knocked loudly on the front door and yelled “Kokomo Police Department.” Tr. p. 30. No one responded at the front door, but Officer Reed heard one of the detectives at the back door yelling, so the officer ran to the rear of the residence. He then observed:

Detective Nielson and Captain Salinas giving orders to a subject through, I believe it would have been a kitchen window, to come outside. I approached the door and then I observed Mr. Van-zyll abruptly open the door. It appeared to me as though he was going to attempt to flee the rear of the residence and run through us. He kind of got out the door, had a startled look on his face and abruptly turned and tried to slam the door shut and go back in the house.

Tr. p. 31.

When Vanzyll attempted to slam the door while running back into the residence, it did not shut all the way, so Officer Reed drew his weapon and pushed the door open with his foot. He then “loudly announced police and ordered [Vanzyll] to come to the back door.” Tr. p. 32.

Captain Salinas, who was stationed at the back door of the residence, heard Officer Reed knock on the front door and identify himself as a police officer. He then saw Vanzyll look through a window near the back door. Captain Salinas testified:

[W]hen he did that I positioned myself from where I was towards where he could see me and I was wearing a ballistic gray vest with the police insignia on my right side. I also had my badge that I use when I wear that vest and I lifted it up to show him that it was police and waived [sic] at him and tried to talk to him, I don’t know if he could hear me or not, to come out.

Tr. p. 57.

While Officer Reed was knocking on the front door of the residence, Detective Niel-son, who was also standing at the back door of the residence, could hear someone running back and forth in the house. After Captain Salinas told the detective that he saw Vanzyll looking out the back window, the detective saw the doorknob of the rear door start to turn.

A few second[s] later, that door was flung open and ... Vanzyll stepped out as if he was trying to run past me. As soon as he saw me, he ran, he closed the door quickly and ran back inside the residence ... Myself and Captain Salinas were calling for ... Vanzyll to come back outside after identifying ourselves several times once again.

Tr. pp. 64-65.

Vanzyll did not initially comply with Officer Reed’s order to return to the back door, but a woman approached the back door. The woman refused to leave the house and get on the ground, and therefore, she was forced to the ground by the officers and detained. Vanzyll then returned to the back door holding his hands up but refused commands to exit the residence and “get on the ground.” Tr. p. 36. The officers then forced him on the ground, handcuffed him, and searched him for weapons.

Police officers then entered the residence to make sure that no one else was inside. As they did so, they smelled the overwhelming odor of ammonia, which is associated with the manufacture of methamphetamine. The officers also observed what appeared to be a “one-pot” methamphetamine lab in Vanzyll’s bedroom.

After securing and exiting the residence, the officers applied for and obtained a search warrant. While searching the residence, they found liquid that tested positive for the presence of methamphetamine, a fuel can that tested positive for ammonia, a bottle which tested positive for hydrochloric acid gas, containers with white solid crystals, lye, and drain opener. In Vanzyll’s bedroom, the officers found identification, cash, a Ziploc bag with white residue, which tested positive for the presence of methamphetamine, digital scales, and a glass methamphetamine pipe. The officers also found remnants of a methamphetamine lab in a trash bag in the basement of the residence.

Vanzyll was chai'ged with Class B felony dealing in methamphetamine, Class D felony possession of methamphetamine, Class D felony possession of chemical reagents or precursors with intent to manufacture a controlled substance, and Class A misdemeanor resisting law enforcement. He was also incarcerated in the Howard County jail while awaiting trial. During his incarceration, he wrote a letter to his co-defendant, asking her to tell the police that they slept in the living room of the residence where everyone smokes. The letter was intercepted, and a jail guard asked Vanzyll whether he wrote the letter. The letter and Vanzyll’s statement that he wrote it were admitted at trial over Van-zyll’s objection.

A jury trial began on September 9, 2011, and Vanzyll was found guilty as charged. Vanzyll was ordered to serve a total sentence of eighteen years with six years suspended to probation for the four convictions. Vanzyll now appeals.

I. Admission of the Jail Guard’s Testimony

The admission of evidence is within the sound discretion of the trial court, and we review the court’s decision only for an abuse of that discretion. Boatner v. State, 934 N.E.2d 184, 186 (Ind.Ct.App.2010). The trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court, or if the court has misinterpreted the law. Id.

Vanzyll argues that his statements to the jail guard admitting that he wrote the letter should not have been admitted at trial because he was not afforded the protections of Miranda. In response, the State contends that Miranda does not apply because Vanzyll was not questioned by the jail guard about a criminal matter; rather, he was questioned about breaking the administrative rules of the jail.

Custody, as that term is applied under Miranda, is a “term of art that specifies circumstances that are thought generally to present a serious danger of coercion.” Howes v. Fields, — U.S.-, 132 S.Ct. 1181, 1189, 182 L.Ed.2d 17 (2012). And the Supreme Court has “repeatedly declined to adopt any categorical rule with respect to whether the questioning of a prison inmate is custodial” even when the “prisoner is removed from the general prison population and questioned about events that occurred outside the prison.” Id. at 1187 (emphasis added).

In Howes, inmate Fields, who was serving a sentence in a Michigan jail, was escorted to a conference room by two armed sheriffs deputies and questioned concerning allegations that he engaged in sexual conduct with a twelve-year-old boy before he was incarcerated. Fields was not restrained during the interview and was told he could leave whenever he wanted. The door to the conference room was sometimes open and sometimes shut during the interview that lasted between five and seven hours. When Fields became agitated halfway through the interview, he was told to sit down but that if he did not want to cooperate he could leave. Although Fields stated on several occasions that he no longer wanted to talk to the deputies, they continued to question him and he eventually confessed. When the interview was finally over, Fields had to wait approximately twenty minutes for a corrections officer to escort him back to his jail cell.

As a result of this interrogation, Fields was charged with criminal sexual conduct and prior to trial moved to suppress his confession pursuant to Miranda. His motion was denied and his renewed objection at trial was overruled. After he unsuccessfully challenged his conviction on direct appeal, he filed a petition for writ of habeas corpus in federal district court. The district court and Sixth Circuit Court of Appeals concluded that his confession should have been suppressed, but the United States Supreme Court disagreed. The court held that Fields “was not in custody within the meaning of Miranda” because he was told he could end the interview and return to his cell, he was not physically restrained or threatened, and was questioned in a well-lit conference room where the door was sometimes left open. Id. at 1193-94.

In this case, Corrections Officer Gregory Burns testified that he confiscated a letter that Vanzyll wrote to his girlfriend, who was also an inmate at the Howard County Jail, which violated the jail’s rules. After finding and reading the letter taped to the bottom of a desk in a classroom, Officer Burns proceeded to Vanzyll’s jail cell and questioned Vanzyll about the letter. Vanzyll was not free to leave his cell or the officer’s presence during the questioning, but the questioning appears to have been brief in duration. In response to Officer Burns’s questions, Vanzyll admitted that he wrote the letter and that his girlfriend was an inmate at the jail as well. Tr. p. 324. The letter contains incriminating statements. But Officer Burns did not question Vanzyll about those statements. He limited his questioning to whether Vanzyll wrote the letter and whether it was intended for a female inmate.

Officer Burns’s interview of Vanzyll was far shorter and much less formal than the interrogation upheld in Howes. Although Vanzyll was not free to leave his cell, he was neither threatened nor physically restrained during Burns’s questioning. There is nothing in the record that would lead us to conclude that Vanzyll was made to feel uncomfortable or coerced during the brief interview; it was a simple inquiry as to whether he wrote the letter and for whom it was intended. Under these facts and circumstances, Vanzyll was not in custody for the purposes of Miranda, and the admission of Officer Burns’s testimony concerning Vanzyll’s statements about the letter was not an abuse of discretion. Moreover, we observe that Vanzyll does not appeal the actual admission of the letter itself, and it is noteworthy that Van-zyll has written his full name and what appears to be his social security number in the letter, both apparently to identify himself to his girlfriend for the purposes of her future visitation of him in jail.

II. Sufficient Evidence

When we consider a challenge to the sufficiency of evidence to support a conviction, we neither reweigh the evidence nor judge the credibility of the witnesses; instead, we respect the exclusive province of the trier of fact to weigh any conflicting evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). We consider only the probative evidence and reasonable inferences supporting the verdict, and we will affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

A. Resisting Law Enforcement

Vanzyll was charged and convicted of Class A misdemeanor resisting law enforcement. Specifically, the charging information provides: Vanzyll “did knowingly flee from Brad Reed, a law enforcement officer, after said officer identified himself by visible or audible means and visibly or audibly ordered said defendant to stop[.]” Appellant’s App. p. 14; see also Ind.Code § 35-44.1-3-1(a)(3) (2012).

A police officer’s order to stop need not be limited to an audible order to stop. The order to stop may be given through visual indicators. Evidence of a proper visual order to stop is based on the circumstances surrounding the incident and whether a reasonable person would have know that he or she had been ordered to stop.

Fowler v. State, 878 N.E.2d 889, 895 (Ind.Ct.App.2008) (citing Spears v. State, 412 N.E.2d 81, 83 (Ind.Ct.App.1980)).

Vanzyll argues that the evidence is insufficient to support his conviction because he had no obligation to answer the door when the officers knocked, and he was not ordered to stop when he was standing at the rear door of the residence. From the evidence admitted at trial, a reasonable jury could conclude that Vanzyll was aware that police officers were stationed at the front and back doors of the residence, and that those officers wanted him to exit the residence. But there is no evidence from which a reasonable fact-finder could conclude that the officers ever ordered Vanzyll to stop at any point before or after he had opened the back door and then ran back into the residence.

Vanzyll accurately observes that he “had no obligation to comply with officer’s [sic] requests that he answer the door.” Appellant’s Br. at 11 (citing Hardister v. State, 849 N.E.2d 563 (Ind.2006)). And the State concedes that Vanzyll was not required to open the door to the officers when they knocked, but argues that he committed resisting law enforcement when he ran back inside the house. Specifically, the State argues that:

Defendant was aware that the officers were outside and that they wanted him to come outside. Yet, when he finally opened the door, Defendant ran back inside the house, fleeing from the officers. That at that specific moment no officer ordered him to stop is irrelevant because before and after he returned inside the house, the officers did order him to go to the back door.

Appellee’s Br. at 14.

The State unconvincingly attempts to analogize the facts of this case to those in Wellman v. State, 703 N.E.2d 1061 (Ind.Ct.App.1998). In that case, Wellman stepped outside his residence to talk to officers who were investigating a report of child abuse. Wellman spoke to the officers for several minutes but was generally uncooperative. Wellman then told the officers that he was going back inside his residence, at which point the officer told him not do to so. Wellman disobeyed the order, went inside the house and locked the door behind him.

Wellman was convicted of resisting law enforcement for entering his house despite the officer’s command to remain outside. Our court affirmed his conviction on appeal after concluding that Wellman fled from law enforcement by disobeying the officer’s command to remain outside.

Conversely, in this case, Vanzyll did not leave his residence, and he had no obligation to do so when Officer Reed knocked on the front door. Vanzyll was never given a command to stop. Vanzyll was not given any command by Officer Reed until after he shut the back door and returned to the interior of the residence. After Vanzyll returned to the interior of the residence, Officer Reed ordered him to return to the back door and exit the residence. Although Vanzyll did not immediately comply with Officer Reed’s order, he did exit peaceably after a short period of time had elapsed.

Under these facts and circumstances we conclude that the State’s evidence was not sufficient to prove that Vanzyll fled from Officer Reed. We therefore reverse his resisting law enforcement conviction and remand this case to the trial court with instructions to vacate its judgment of conviction and sentence on that count.

B. Manufacture of Methamphetamme

Vanzyll was charged and convicted of Class B felony dealing in methamphe-tamme. Specifically, the charging information provides: “Vanzyll did knowingly manufacture methamphetamme[.]” Appellant’s App. p. 11. See also Ind.Code § 35-48^4-1.1(a) (2008) (“A person who ... knowingly or intentionally ... manufactures ... methamphetamme, pure or adulterated ... commits dealing in metham-phetamme, a Class B felony[.]”). The term “manufacture” is defined in Indiana Code section 35-48-1-18 as:

(1) the production, preparation, propagation, compounding, conversion, or processing of a controlled substance, either directly or indirectly by extraction from substances of natural origin, independently by means of chemical synthesis, or by a combination of extraction and chemical synthesis, and includes any packaging or repackaging of the substance or labeling or relabeling of its container. It does not include the preparation, compounding, packaging, or labeling of a controlled substance:
(A) by a practitioner as an incident to his administering or dispensing of a controlled substance in the course of his professional practice; or
(B) by a practitioner, or by his authorized agent under his supervision, for the purpose of, or as an incident to, research, teaching, or chemical analysis and not for sale; or
(2) the organizing or supervising of an activity described in subdivision (1).

Vanzyll concedes that there was sufficient evidence to prove that all the necessary components for manufacturing meth-amphetamme were found in the residence, but argues that the State failed to prove that there was an active methamphetamme lab in the residence. The State argues that it proved that there was an active methamphetamme lab at the residence, but also relying on the definition of manufacture quoted above, the State contends that the term manufacture “does not require that the meth lab be active.” Appel-lee’s Br. at 17.

Vanzyll extrapolates facts from three cases in support of his assertion that the State must present evidence of an active methamphetamme lab to prove that he manufactured methamphetamme. Vanzyll cites to Bush v. State, 772 N.E.2d 1020, 1028 (Ind.Ct.App.2002), trans. denied, which is often cited for its holding that a conviction for manufacturing of a controlled substance does not require that manufacturing be completed or that there be actual product. He also relies on Robertson v. State, 877 N.E.2d 507 (Ind.Ct.App.2007), in which we affirmed the dealing in methamphetamme conviction in part because two law enforcement officers testified that the several items used in the manufacture of methamphetamine found in Robertson’s house led them to conclude that Robertson was “actively manufacturing methamphetamine using the red phosphorous method.” Id. at 516. Finally, Vanzyll directs our attention to Traylor v. State, 817 N.E.2d 611 (Ind.Ct.App.2004), trans. denied, in which we concluded that the evidence was sufficient to support Traylor’s conviction for manufacturing methamphetamine where police officers found items commonly used in the manufacture of methamphetamine, and a State police officer testified that the “reaction vessel that was found during the search was a ‘batch of meth cooking right there.’ ”

Id. at 620 (record citation omitted). But Vanzyll has not cited to any case explicitly requiring evidence of an active methamphetamine lab to prove manufacturing as that term is defined in Indiana Code section 85-38-1-18.

At trial, Officer Reed testified that “immediately upon entering the residence we were struck with an overwhelming strong odor of ammonia or odor I would associate with the manufacturing of methamphetamine, through my experience.” Tr. p. 41. During the protective sweep of the residence, Detective Nielson observed pseu-doephedrine blister packs and what he believed to be a one-pot methamphetamine lab in a plastic bucket. Officer Melton also believed there was a methamphetamine lab inside the house after he observed a can of Coleman fuel, blister packs, and two-liter bottles with a substance it them. He testified that “there was the smell of chemicals in the house, you could smell it. There’s no other smell like it when you deal with a meth lab, all meth labs pretty much smell the same. There’s just no other odor like it. It’s very distinct so that’s how I know its usually involved in a meth lab.” Tr. p. 81.

Photographs of the methamphetamine lab in the plastic bucket found in Vanzyll’s bedroom were admitted at trial, and Officer Melton found ninety-six pseudoephed-rine tablets and digital scales in that bedroom. In addition, State Trooper Josh Mallor testified to finding lye and drain opener containing sulfuric acid in the residence, which items are commonly used in the manufacture of methamphetamine. He also took samples of the liquid found in the two liter bottles. Officer Melton explained the process of cooking methamphetamine to the jury, including that after the ingredients are combined, a liquid is produced, which then has to be processed into a powder form. Tr. p. 291. The sample of liquid removed from one of the two-liter bottles indicated the presence of methamphetamine. Tr. p. 300. Finally, the officers also found remnants of a methamphetamine lab in a black trash bag in the basement.

Although no law enforcement officer specifically testified that the methamphetamine lab was active, the evidence in this case was sufficient for the jury to conclude that Vanzyll was in the process of manufacturing methamphetamine, which had not yet been reduced to its final solid form. We therefore affirm Vanzyll’s Class B felony dealing in methamphetamine conviction.

Conclusion

The trial court did not abuse its discretion when it admitted the jail guard’s testimony that Vanzyll admitted to writing the letter that was also admitted at trial as State’s Exhibit 8A. The evidence was sufficient to prove that Vanzyll manufactured methamphetamine. However, the State failed to present sufficient evidence that Vanzyll committed Class A misdemeanor resisting law enforcement, and therefore, we reverse that conviction.

Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.

VAIDIK, J., and BARNES, J., concur.

      . Oral argument was held in this appeal on October 31, 2012 in the Fine Arts Center at the Seeger Junior/Senior High School in West Lebanon, Indiana. We express our deep gratitude to the students, faculty, and staff at the school and to the local bench and bar for their outstanding hospitality.

      . Effective July 1, 2012, Title 35 Article 44 was repealed and replaced with Title 35 Article 44.1. Subsection 1(a)(3) of the resisting law enforcement statute was not changed under Article 44.1.

      . In Hardister v. State, 849 N.E.2d 563, 570 (Ind.2006), our supreme court observed, "[i]n response to a 'knock and talk’ residents have the right to deny officers admission and to refuse to answer questions.... If residents exercise this right, officers generally must leave and secure a warrant if they want to pursue the matter.”
      In that case, our supreme court also observed that flight in response to a knock on the door is not the functional equivalent of denying officers admittance. Unprovoked flight "adds to the information available to the officers. ‘It is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such' and warrants further investigation by police.” Id. (citations omitted). But it does not create an exigent circumstance that justifies warrantless entry and pursuit of fleeing residents through a house. Id. at 571.


author: BAKER, Judge.

text:
    LANE ALAN SCHRADER TRUST as Trustee under the Trust Agreement dated 16th day of November, 1999, and known as Lane Alan Schrader Self-Declaration of Trust, Appellant-Petitioner, v. Larry GILBERT and Nancy J. Malecki, Appellees-Respondents.
    No. 75A04-1112-PL-676.
    Court of Appeals of Indiana.
    Dec. 4, 2012.
    Eric C. McNamar, Bernie W. Keller, Keller Macaluso LLC, Carmel, IN, Attorneys for Appellant.
    Kevin C. Tankersley, Winamac, IN, Attorney for Appellees.
   OPINION GRANTING REHEARING

BAKER, Judge.

In the instant case, appellant-defendant Lane Alan Schrader as Trustee for the Lane Alan Schrader Self-Declaration Trust (the Trust) appealed a trial court’s determination that a legal survey was defective and its imposition of two previous surveys to determine the correct boundary lines of the Trust property. This Court concluded that the while the trial court’s conclusion that the legal survey was defective was not clearly erroneous, the trial court had erred by imposing the two previous surveys. We determined that under the applicable statute, there were three options from which a trial court could choose, including rejecting the legal survey and ordering the county surveyor to mark the boundary lines based upon the evidence that the trial court had before it, including previous surveys. Lane Alan Schrader Trust v. Gilbert, 974 N.E.2d 516, 524 (Ind.App.2012).

Now the Trust petitions for rehearing, arguing that, in essence, this Court instructed the trial court that it could do what we said was erroneous, namely, impose the two previous surveys. Because it is apparent that our opinion has not been understood, we grant the Trust’s petition for rehearing to reiterate what we previously stated.

Under Indiana Code section 36-2-12-14, the trial court has three options:

(1) It may accept the original survey;
(2) It may reject the original survey, and it is permitted to order that a new survey be performed by a different surveyor from the surveyor who performed the original survey;
(3) It may reject the original survey and order the county surveyor to locate and mark the boundary lines with durable markers in the proper places according to the trial court’s findings based upon evidence presented to it, including previous surveys.

974 N.E.2d at 524. Thus, the trial court could order the county surveyor to mark new boundary lines based on the evidence presented to it, which may include previous surveys.

Applied to the instant case, if the trial court chose option three and believed that the Turning Point and Progressive Surveys were correct, then it should have ordered the county surveyor to mark the boundary lines accordingly. This is not unfairly imposing these surveys, inasmuch as they were part of the evidence presented to the trial court. Likewise, in choosing option three, the trial court’s decision would be appealable.

Petition for rehearing granted for the purpose of clarification. Otherwise, we stand by our previous opinion.

ROBB, C.J., and BRADFORD, J., concur.


author: PYLE, Judge.

text:
    Mitchell BURTON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 71A03-1203-CR-129.
    Court of Appeals of Indiana.
    Dec. 5, 2012.

      Stanley F. Wruble, III, South Bend, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Ryan D. Johanningsmeier, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

PYLE, Judge.

STATEMENT OF THE CASE

Mitchell Burton (“Burton”) appeals his conviction of resisting law enforcement, a class D felony.

We reverse and remand.

ISSUE

The following issue is dispositive: whether the trial court abused its discretion in refusing to give Burton’s tendered self-defense and resistance of unlawful force instructions.

FACTS

At approximately 4:30 a.m. on December 25, 2010, Norman Northcutt (“Northcutt”) noticed a silver car parked across the street from his South Bend home. The car was parked in the opposite direction of what it should have been facing.

Approximately thirty minutes later, Northcutt heard a loud “bang,” and he looked out the window to see what had caused the noise. (Tr. 161). He saw that the silver car had bumped into the front of the pickup truck that it was facing. Northcutt was concerned that the person inside the car needed help, and he called 911 to report what had happened.

South Bend Police Officer Erik Schlegel-milch (“Officer Schlegelmilch”) responded to a dispatch describing an accident involving a “vehicle ... up against another parked vehicle.” (Tr. at 108). Officer Schlegelmilch was the first officer to arrive in Northcutt’s neighborhood, and South Bend Police Officers Andrew Witt (“Officer Witt”) and Jonathon Gray (“Officer Gray”) arrived shortly thereafter. All three officers were in uniform and all arrived in fully-marked patrol cars.

Officer Schlegelmilch parked his patrol car behind the silver car. The patrol car’s red and blue emergency lights were activated, and the car’s dash camera automatically began recording.

The DVD of the events recorded by the camera shows that exhaust was coming from the silver car. Officer Schlegel-milch’s car was parked in the street a short distance behind and to the right of the car. As Officer Schlegelmilch approached the car, Officer Witt walked behind him, and a police car, driven by Officer Gray, arrived at the scene.

Officer Schlegelmilch walked past the passenger side to the front of the ear and shined his flashlight into the car. He informed Officer Witt that there was a person inside. This person was later identified as Burton. Burton apparently pushed the accelerator, and Officer Schlegelmilch told Officer Witt to “Wake his ass up; he’s hitting the accelerator.” (DVD at 1:00). Officer Witt, who was positioned at the driver’s side of the car, tried to open the car door and began tapping on the window with his flashlight. While Officer Witt tapped on the driver’s side window, Officer Gray approached and began tapping on the passenger side window.

Burton apparently awakened, and Officer Gray reacted by pointing his service revolver at the car and twice ordering Burton to “shut the car off and open the door.” (DVD at 1:35-40). Officer Gray then stated, “If you move, I will shoot you in your fucking head.” (DVD at 1:50).

While Officer Schlegelmilch walked toward his patrol car, Officer Witt, in an apparent attempt to break the glass and gain entry, began repeatedly striking the silver car’s driver’s side window with his flashlight. Officer Schlegelmilch handed Officer Witt a special tool, and Officer Witt used it to break the car window. Officer Witt opened the passenger door as Officer Gray holstered his service revolver and came around the back of the car. Both officers grabbed Burton and wrestled him to the ground. At that point, the view from the police camera is partially blocked by the silver car, but it appears that all three officers began to struggle with Burton, who repeatedly stated something that is indiscernible on the DVD. As Burton, who appeared to be writhing on the ground, shouted that he was not resisting, at least one officer began to punch him. A fourth officer arrived, and the officers handcuffed Burton. Burton was then taken to the hospital, where he was treated for multiple injuries, including fractures of facial bones.

On December 28, 2010, the State charged Burton with Count 1: resisting law enforcement, a class D felony; Count 2: battery to a law enforcement officer (Witt), a class A misdemeanor; Count 3: battery to a law enforcement officer (Gray), a class D felony; and Count 4: battery to a law enforcement officer (Schlegelmilch), a class D felony. A jury trial was held in February of 2012, and the jury found Burton guilty of Count 1 and not guilty of the battery counts. The trial court subsequently sentenced Burton to a suspended sentence of eighteen months and one year of probation. The trial court stated that good behavior on probation would result in the reduction of the felony conviction to a misdemeanor conviction. Burton now appeals his conviction.

DECISION

Burton contends that the trial court abused its discretion in refusing to give tendered jury instructions that addressed his right to defend himself and/or use force under the circumstances of this case. The purpose of an instruction is to “inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.” Wilson v. State, 842 N.E.2d 443, 445 (Ind.Ct.App.2006) (quoting Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind.2003), cert. denied), trans. denied. A trial court erroneously refuses to give a tendered instruction, or part of a tendered instruction, if: (1) the instruction correctly sets out the law; (2) evidence supports the giving of the instruction; and (3) the substance of the instruction is not covered by the other instructions given. Id. at 445-46. As a general rule, instruction of the jury lies within the sound discretion of the trial court. Id.

The following are the salient instructions proposed by Burton:

Defendant’s Proposed Jury Instruction No. 1: The law does not allow a police officer to use more force than necessary to [ejffect an arrest, and if he does use such unnecessary force, he thereby becomes a trespasser, and an arrestee therefore may resist the arrester’s use of excessive force by the use of reasonable force to protect himself against great bodily harm or death. If you find that Officers Witt, Schlegelmilch, and Gray used more force than necessary to effectuate the arrest, then the accused was permitted to resist the arrest to such an extent as necessary to protect himself from great bodily harm or death, and you must find him not guilty of resisting law enforcement.
Defendant’s Proposed Jury Instruction No. 2: An individual has a right to act upon appearances of actual and immediate danger if he sincerely believes such apparent danger exists. It need be only apparent to a reasonable person under the circumstances. He will not be accountable for an error in judgment as to the amount of force necessary, provided he acted honestly. The law protects persons who feel compelled to act at such times even though in retrospect it is proved they have erred.
Defendant’s Proposed Jury Instruction No. 3: Your decision as to whether the accused was acting in self-defense must be based on what the situation appeared to be to the accused rather than what the actual facts might have been. Defendant’s Proposed Jury Instruction No. 4: The defense of self-defense is defined by the law as follows:
No person in this State shall be placed in legal jeopardy of any kind whatsoever for protecting himself ... by reasonable means necessary.
A person is justified in using reasonable force against another person to protect himself ... from what he reasonably believes to be the imminent use of unlawful force....

Notwithstanding the above, a person is not justified in using force if:

1. he is committing, or is escaping after the commission, of a crime;
2. he provokes unlawful action by another person with intent to cause bodily injury to the other person; or
3. he has entered into combat with another person or is the initial aggressor, unless he withdraws from the encounter and communicates to the other person his intent to do so and the other person nevertheless continues or threatens to continue unlawful action.

The State has the burden of disproving this defense beyond a reasonable doubt.

(App. 12-15).

Among other reasons, the trial court refused to give the proposed jury instructions because the evidence did not support the giving of the instructions. In general, “a defendant in a criminal case is entitled to have the jury instructed on any theory of defense that has some foundation in the evidence.” Howard v. State, 755 N.E.2d 242, 247 (Ind.Ct.App.2001). We apply this rule even if the evidence is weak and inconsistent, so long as the evidence presented at trial has some probative value to support it. Id. Accordingly, Burton was entitled to a jury instruction on self-defense if there was some evidence that he was justified in using reasonable force against the officers to protect himself from what he believed to be the imminent use of unlawful force.

The camera on Officer Schlegel-milch’s car recorded a scene where Burton was sleeping and apparently pressing his car’s accelerator while he slept. Burton was awakened by Officer Witt pounding on his driver’s side window, Officer Schlegel-milch shining his flashlight through the windshield, and Officer Gray pounding on the passenger’s side window. Moments later, Officer Gray pointed his service revolver at Burton and demanded that he turn off the car and open the door, only to declare within the next few seconds that any movement would result in the officer shooting Burton in his “fucking head.” (DVD at 1:50): Within a few more seconds, Officer Gray, who had just threatened to kill Burton, helped Officer Witt drag Burton from the car onto the ground. The officers then proceeded to fracture Burton’s facial bones. While we recognize that the officers testified to different versions of what the DVD depicted, we must conclude that the DVD provides a strong evidentiary foundation that warrants the giving of the self-defense instruction.

In addition, Burton was entitled to jury instructions on excessive force by police officers if there was some evidence that the officers’ use of force was excessive, that is, objectively unreasonable under the Fourth Amendment in light of the facts and circumstances confronting the officers. See Shoultz v. State, 735 N.E.2d 818, 823-24 (Ind.Ct.App.2000) (citing Graham v. Connor, 490 U.S. 386, 395-97, 109 S.Ct. 1865, 104 L.Ed.2d 443 (1989)), trans. denied, When considering whether police force is unreasonable, courts consider various factors including, “the severity of the crime at issue; whether the suspect poses an immediate threat to the safety of the officers or others”; and whether the suspect “is actively resisting arrest or attempting to evade arrest by flight.” Id. at 824. The “reasonableness of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight.” Id. (citing Graham, 490 U.S. at 396, 109 S.Ct. 1865). However, “‘the reasonableness inquiry’ in an excessive force case is an objective one: the question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstance confronting them, without regard to their underlying intent or motivation.” Id. (citing Graham, 490 U.S. at 396-97,109 S.Ct. 1865).

There is no doubt that the DVD provides evidence that a recently awakened Burton could have been confused and/or scared for his life when Officer Gray threatened to shoot him, Officer Witt broke into the car, and both officers pulled him out of the car and threw him to the ground. The DVD provides evidence from which a jury could conclude that Burton was not an immediate threat to the officers or anyone else; indeed, the officers were investigating a non-injury accident where a sleeping Burton allowed his vehicle to bump into another vehicle. Furthermore, the DVD can be reasonably interpreted to show that Burton offered no resistance prior to being pulled from the car and only defensive resistance to multiple blows from three officers after being thrown to the ground. Again, while we recognize that the officers testified to different versions of what occurred, we conclude that there is also a strong evidentiary foundation to warrant the giving of tendered Instructions 1 through 3.

A trial court’s refusal to give tendered instructions is subject to harmless error analysis. Snell v. State, 866 N.E.2d 392, 399 (Ind.Ct.App.2007). In determining whether the refusal warrants reversal, we must assess whether the defendant was prejudiced by the trial court’s failure to give the instruction. Bragg v. State, 695 N.E.2d 179, 180 (Ind.Ct.App.1998).

In the present case, the jury was not instructed that Burton was justified in protecting himself under circumstances where the DVD showed that the police officers may have used excess force to extract a recently awakened and dazed Burton from the car and to subdue him as he tried to protect himself from an officer who had threatened to kill him for no apparent reason. The jury would have been so apprised if the trial court had given the tendered instructions. Without the instructions, the jurors were permitted to find Burton guilty of resisting law enforcement even if they believed Burton’s claim that he lawfully used reasonable force to protect himself from the threat of great bodily harm. The trial court’s error was not harmless, and the conviction must therefore be vacated. See id.

We reverse and remand with instructions that the trial court vacate the conviction.

FRIEDLANDER, J., and BROWN, J., concur

      . Burton was convicted of resisting law enforcement under Indiana Code § 35-44-3-3(b)(1)(B). Public Law 126-2012, § 54 reco-dified the statute as Indiana Code § 35-44.1-3-1, effective July 1, 2012.

      . At trial, the officers testified that they tased, kicked, and struck Burton in an attempt to subdue him.

      . As the State notes in its brief, Burton failed to conform to Indiana Rule of Appellate Procedure 46(A)(8)(e) by not setting out a verbatim statement of the tendered instructions in the argument section of his brief. Such failure may result in waiver of the issue on review. See Davis v. State, 892 N.E.2d 156, 163 (Ind.Ct.App.2008). Burton did, however, set out the tendered instructions in the statement of the facts section of his brief. Because our review is not significantly hindered, we choose to decide the issue on its merits.

      .The State contends that Burton fails to specify in his brief which of the four tendered instructions were erroneously refused. We ascertain from Burton's brief that he is specifically arguing the trial court abused its discretion in not giving Instructions 1 through 3 (pertaining to the right to defend against perceived excessive force) and Instruction 4 (pertaining to the statutory right to self-defense).

      . Instruction 4 partially follows the language of Indiana’s self-defense statute. See Ind. Code § 35-41-3-2.

      . Here, the trial court cited as one of its reasons for refusing to give Proposed Jury Instruction No. 1 that our supreme court's initial decision in Barnes v. State, 946 N.E.2d 572 (Ind.2011), aff'd on reh'g, 953 N.E.2d 473 (2011), a case addressing the use of force against unlawful entry of one’s home, had the effect of overturning Shoultz. We note that Barnes did not address the facts and circumstances of Shoultz and did not overturn the case. In addition, the Barnes decision made no mention of Wilson v. State, 842 N.E.2d 443 (Ind.Ct.App.2006), trans. denied, the case that forms the basis for Proposed Jury Instruction No. 1.

      . The conflict experienced by the jury is illustrated by the following comments made by the trial judge at Burton's sentencing hearing: [T]he jury had some difficulty with this case. And some difficulty reaching the conclusion that they did.
      A comment was made to me by ... I don’t know who, but by one of the jurors, when they were leaving and essentially saying to me, “Well, Judge, just remember when you sentence Mr. Burton that he’s already gotten his punishment.”

      And quite honestly, I don’t get it. I mean, I really don’t. I don't understand why this happened like this. I don’t understand why it had to happen like this.
      (Tr. 400-01). .