MATHIAS, J.
On November 18, 2007, Barnes and his wife, Mary, were arguing while Barnes was moving out of their apartment. During the argument, Mary tried to call her sister, but Barnes grabbed the phone and threw it against the wall. Mary then used her cell phone to call 911. Mary told the dispatcher that Barnes was throwing things around the apartment but stated that Barnes had not struck her.
Officer Lenny Reed responded to the 911 dispatch. When the officer arrived, he observed Barnes walking out of the apartment. Barnes was carrying a black bag. Officer Reed told Barnes that he was investigating a 911 call. Barnes told Reed that the officer was not needed, and that he should leave because Barnes was leaving. Because Barnes was yelling at the officer, Officer Reed told Barnes that he was going to arrest him for disorderly conduct if Barnes did not calm down. The officer noticed that people outside near the apartment building were staring at Barnes and the officer. While Barnes was yelling at Officer Reed, Mary walked out of the apartment carrying another duffel bag. She threw the bag down on the ground, telling Barnes to take the rest of his things. Mary then walked back into the apartment followed by Barnes, Officer Reed, and another officer who had arrived on the scene. When they reached the doorway of the apartment, Barnes turned around and told the officers that they could not enter. Officer Reed explained they needed to come in to investigate the 911 call. Barnes continued to deny the officers entry. During the argument between Barnes and the officers, Mary called out to Barnes saying, “Don’t do this.” and “Why don’t you let them in.” Tr. pp. 25, 87.
When Officer Reed attempted to walk past Barnes to enter the apartment, Barnes shoved the officer into the hallway. Officer Reed and Barnes continued to struggle and eventually the other officer on the scene grabbed Barnes in a vascular neck restraint and took Barnes to the ground. Barnes continued to struggle and a taser was used to subdue Barnes. Barnes suffered an adverse reaction to the taser and was transported to the hospital.
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Barnes was charged with Class A misdemeanor battery, Class A misdemeanor resisting law enforcement, Class B misdemeanor disorderly conduct, and Class A misdemeanor interference with the reporting of a crime. A jury trial commenced on June 25, 2009. Prior to the start of trial, Barnes tendered a jury instruction concerning the right of a citizen to reasonably resist unlawful entry into the citizen’s home. The trial court refused to give the instruction.
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Barnes argues that the trial court abused its discretion when it refused to give the following jury instruction:
When an arrest is attempted by means of a forceful and unlawful entry into a citizen’s home, such entry represents the use of excessive force, and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.
Appellant’s App. p. 18.
Barnes’s tendered instruction was not covered by the other instructions given. Further, Barnes’s instruction is a correct statement of the law. “Indiana law recognizes the right to reasonably resist the unlawful entry of a police officer into a person’s home.” Robinson v. State, 814 N.E.2d 704, 707 (Ind. Ct. App. 2004) (citing Alspach v. State, 755 N.E.2d 209, 211 (Ind. Ct. App. 2001), trans. denied). “[W]here the arrest is attempted by means of a forceful and unlawful entry into a citizen’s home, such entry represents the use of excessive force and the arrest cannot be considered peaceable. Therefore, a citizen has the right to reasonably resist the unlawful entry.” Adkisson v. State, 728 N.E.2d 175, 179 (Ind. Ct. App. 2000) (citing Casselman v. State, 472 N.E.2d 1310, 1316 (Ind. Ct. App. 1985)).
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. . . [W]e conclude that the evidence reasonably supports the conclusion that Officer Reed’s attempted entry into Barnes’s apartment was unlawful.
Moreover, there is evidence in the record from which a jury could reasonably conclude that Barnes exercised his right to reasonably resist the unlawful entry. Barnes repeatedly told the officers that they could not enter his apartment. When Officer Reed attempted to enter the apartment, Barnes shoved Officer Reed out of the doorway.
Citing Robinson, the State argues that the instruction should not have been given because a defendant may not resist unlawful entry by battering a police officer. In Robinson, police officers responding to a 911 call of a possible domestic disturbance, refused to leave the premises after Robinson told them to leave. When an officer attempted to come onto the porch of the residence, Robinson pushed the officer off of the porch. Robinson appealed his conviction for battery on a law enforcement officer, and we concluded that Robinson’s act of pushing the officer off of his porch was not reasonable resistance. 704 N.E.2d at 708. Specifically, we stated “[t]he right to reasonably resist an unlawful entry does not include the right to commit a battery upon a police officer.” Id.
However, our court also stated: “there can be a fine line between reasonable resistance and battery, but that is for the jury to resolve.” Id. at 709 (emphasis added). Therefore, whether Barnes’s act of shoving Officer Reed out of the doorway of his apartment was battery or “reasonable resistance” is a fact question for the jury to resolve.
Importantly, Barnes’s theory of defense concerning the battery and resisting law enforcement charges was the right to resist unlawful entry into his apartment. . . . The jury would have been properly informed of Barnes’s right to “reasonably resist” Officer Reed’s unlawful entry if the instruction had been given. Because the evidence supported the giving of the instruction, and Barnes’s theory of defense had some foundation in the evidence, the jury’s decision may have been different had it received Barnes’s tendered instruction. For these reasons, the fact that the jury was not instructed on this particular defense cannot be said to be harmless error. Barnes is therefore entitled to a new trial on the charges of battery on a law enforcement officer and resisting law enforcement.
CRONE, J., and BROWN, J., concur.