Barnes, J.
Christapher Batchelor appeals his convictions for Level 5 felony battery on a law enforcement officer, Level 6 felony resisting law enforcement, and Class A misdemeanor resisting law enforcement. …
The sole issue is whether the trial court committed fundamental error by giving the jury an instruction regarding the definition of “flee” for purposes of resisting law enforcement.
At about 8:30 p.m. on December 14, 2015, Clay County Deputy Sheriff James Switzer was driving his marked cruiser and saw that Batchelor was driving his truck without wearing a seatbelt. As Deputy Switzer pulled behind Batchelor at a four-way stop in Brazil, he saw Batchelor reach over and put on his seat belt, then signal and turn left. Deputy Switzer activated his lights to initiate a traffic stop, but Batchelor continued driving for one minute and thirty-eight seconds; Deputy Switzer did not immediately activate his siren but did so later at some point. There was a well-lighted gas station at the intersection where Deputy Switzer first activated his lights. Deputy Switzer then followed Batchelor through residential areas, passing a number of street lights and side streets. … Finally, after Deputy Switzer had activated his LED spotlight and shined it on Batchelor’s mirrors, Batchelor pulled over into a gravel parking area on the side of the road.
Batchelor started to get out of his truck as Deputy Switzer got out of his cruiser. Deputy Switzer ordered Batchelor to get on the ground and he complied. … However, Batchelor resisted Deputy Switzer’s attempt to handcuff him. Two other officers then arrived on the scene as backup. Batchelor continued struggling with Deputy Switzer and the other two officers. …
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The State requested and the trial court gave the following instruction:
A person who fails to stop his vehicle promptly “flees” law enforcement when the person attempts to escape from law enforcement or attempts to unnecessarily prolong the time before the person must stop. …
Batchelor did not object to this instruction. The jury found Batchelor guilty as charged on all counts, and the trial court entered judgments of conviction and sentenced him accordingly. …
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Because Batchelor did not object to the instruction at issue, his claim is waived, and he must demonstrate the existence of fundamental error before we may reverse. See Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016). …
… The key issue in this case with respect to the Level 6 felony resisting charge was whether Batchelor “knowingly or intentionally” fled from Deputy Switzer when he waited one minute and thirty-eight seconds to pull over after Deputy Switzer first activated his emergency lights. …
There is no statutory definition of the word “flee” in the Indiana Code. In Cowans v. State, 53 N.E.3d 540 (Ind. Ct. App. 2016), this court attempted to provide some guidance on that issue, in light of the fact that drivers may sometimes delay pulling over for law enforcement out of concern for their personal safety. …
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The challenged jury instruction in this case largely paralleled this language from Cowans. However, the first thing to note is that Cowans expressly predicated the giving of such an instruction upon the defendant’s requesting it; here, the State requested it. On that basis alone, it was erroneous for the trial court to give the instruction where Batchelor did not request it.
The question, then, is whether the instruction was fundamentally erroneous. …
Here, the resisting law enforcement statute clearly requires proof that the defendant “knowingly or intentionally” fled. See I.C. § 35-44.1-3-1. The challenged instruction, however, allowed the jury to convict Batchelor if the State proved that:
(1) The defendant acted with the intent to escape, or
(2) A reasonable driver in the Defendant’s position would not have felt unsafe under the facts of this case to come to an immediate halt, or
(3) That if a reasonable driver in the Defendant’s position would have felt unsafe to come to an immediate halt, the driver would have come to a halt sooner.
Although the first part of the language above correctly states the mens rea for resisting law enforcement, parts two and three alternatively allowed a conviction based on what a “reasonable driver” would have done in Batchelor’s situation. In other words, parts two and three allowed a conviction if the State proved, essentially, that Batchelor was negligent. … Negligence is not the correct mens rea for resisting law enforcement. …
… there is no question Batchelor knew of Deputy Switzer’s wanting to pull him over, there also is no evidence that there was a “high-speed chase” here. It was for the jury to decide whether such a chase that lasted approximately a minute-and-a-half was a knowing or intentional fleeing by Batchelor, not whether it was something a “reasonable” person would have done. We conclude that this misstatement of the mens rea for a resisting law enforcement conviction was sufficient by itself to make the instruction fundamentally erroneous, mandating reversal of Batchelor’s conviction for Level 6 felony resisting law enforcement by fleeing in a vehicle.
There are other problems with the instruction; we need not conclusively determine whether these are fundamental errors, but we point out these errors nonetheless. First, the instruction comes dangerously close to creating an unconstitutional mandatory presumption. A jury instruction that tells the jury that it must infer a presumed fact if the State proves certain predicate facts is a mandatory presumption instruction that relieves the State of its burden of proof in proving all the elements of a crime, in violation of the Due Process Clause of the United States Constitution. See Brown v. State, 691 N.E.2d 438, 444 (Ind. 1998) (citing Francis v. Franklin, 471 U.S. 307, 314-15, 105 S. Ct. 1965, 1971-72 (1985)).
Although the instruction here did not expressly tell the jury that it “must” or “should” presume that Batchelor was fleeing if the State proved certain predicate facts, the use of such words is not always necessary to make an instruction an impermissible mandatory presumption instruction. See Higgins v. State, 783 N.E.2d 1180, 1185-86 (Ind. Ct. App. 2003), trans. denied. …
Another difficulty with the instruction given is that it emphasizes certain evidence—or rather in this case, unduly emphasizes a lack of evidence—and invites the jury to violate its obligation to consider all the evidence. Instructions that single out certain portions of the evidence in such a way are improper, confusing, and misleading. Marks v. State, 864 N.E.2d 408, 411–12 (Ind. Ct. App. 2007) …
We reverse Batchelor’s conviction for Level 6 felony resisting law enforcement by fleeing in a vehicle. Because Batchelor has not presented argument as to how this instructional error would impact his convictions for Level 5 felony battery on a law enforcement officer and Class A misdemeanor resisting law enforcement, those convictions are affirmed. We remand for further proceedings, i.e. retrial, if the State so elects.
Affirmed in part, reversed in part, and remanded.
Najam, J., and Mathias, J., concur.