NAJAM, Judge.

In Barnes v. State, 953 N.E.2d 473, 474-75 (Ind.2011), our supreme court held on rehearing that "the Castle Doctrine is not a defense to the crime of battery or other violent acts on a police officer."1 In so holding, the Barnes court noted that "[t]he General Assembly can and does create statutory defenses to the offenses it criminalizes, and the crime of battery against a police officer stands on no different ground. What the statutory defenses should be, if any, is in its hands." Id. at 475.

In its legislative response to Barnes, the General Assembly found and declared that "it is the policy of this state to recognize the unique character of a citizen's home and to ensure that a citizen feels secure in his or her own home against unlawful intrusion by another individual or a public servant." Ind.Code § 35-41-3-2(a) (emphasis supplied).2

In this case of first impression, David Cupello appeals his conviction, following a bench trial, for battery on a law enforcement officer, as a Class A misdemeanor. We address two issues presented for our review:

1. Whether the State presented sufficient evidence that an off-duty constable was engaged in the performance of his official duties to support Cupello's conviction.

We first hold that the State presented sufficient evidence that the off-duty constable, Robert Webb, was engaged in the performance of his official duties. However, we also hold that, under the statute enacted by our legislature in response to Barnes, the Castle Doctrine is an affirmative defense to the crime of battery on a law enforcement officer when that officer has unlawfully entered the person's dwelling. And we hold that, on the facts of this case, Cupello exercised reasonable force under Indiana Code Section 35-41-3-2(i)(2) to prevent or terminate an unlawful entry by a public servant into his home. Thus, we reverse Cupello's conviction.

Facts and Procedural History

On January 23, 2014, Cupello had a telephone conversation with a staff member of Emerson Village Apartments ("Emerson Village") in Indianapolis, where he resided, which ended when Cupello hung up on the staff member. In order to "find out what the issue was," Emerson Village dispatched John Lloyd, the office manager, and Christopher Amond, a maintenance technician, to Cupello's apartment. Tr. at 6. But, before they arrived, Lloyd and Amond encountered Cupello in the second-floor hallway that led to his apartment. When Cupello saw Lloyd and Amond, he cursed at them and threatened to call the police. In response, Lloyd and Amond left, and Amond called Constable Webb, an off-duty Pike Township Constable whom Emerson Village employed part time as a "courtesy officer." Id. at 10. As a courtesy officer, Constable Webb took calls on the property, resolved any issues reported by the office, performed random patrols, and locked the laundry room and pool.

Amond reported to Constable Webb that Cupello "had been verbally intimidating," id. at 11, and, thus, Constable Webb went to Cupello's apartment to investigate "reports of intimidation," id. at 13. Constable Webb knocked and Cupello opened the door. The record does not disclose whether Constable Webb identified himself as a Pike Township Constable or wore his Pike Township uniform, but Constable Webb and Cupello had encountered each other on a prior occasion.

When Cupello opened the door, without Cupello's knowledge or consent, Constable Webb placed his foot just inside the threshold of the door, which opened inwards toward the interior of the apartment. Although Constable Webb did not have a warrant to enter Cupello's apartment, his standard practice is to situate his foot in this way "to make sure [he] can talk to [people] and to keep them from slamming the door in [his] face." Id. at 15. While standing at the door, Constable Webb questioned Cupello about the incidents with Emerson Village's staff members, and Cupello complained to Constable Webb that Amond had repeatedly harassed him by revving his vehicle's engine whenever he drove past Cupello's apartment. Cupello stated that he wanted to press charges, but Constable Webb explained that Cupello could not do so "for just revving your motor." Id. at 12.

When Constable Webb told Cupello that he could not press charges against Amond, Cupello became upset, ended the conversation, and, simultaneously, slammed the door to his apartment. Because Constable Webb had placed himself inside the threshold, the door struck Constable Webb in his foot, shoulder, and head.3 After the first slam of the door, Constable Webb began to push back against the door in an effort to free his foot, which was stuck, and Cupello continued to attempt to shut his door. In doing so, he slammed it two more times in rapid succession and harder than his first effort. The door struck Constable Webb both times, but Cupello managed to close it on the third attempt. After the second contact with the door, Constable Webb told Cupello that he was under arrest for battery on an officer, and, once the door had closed, Constable Webb demanded that Cupello open the door so that Constable Webb could arrest him.

When Cupello refused to open the door, Constable Webb called for a backup officer and called the Emerson Village office for a key to Cupello's apartment. Then, without a warrant, Constable Webb and the backup officer unlocked Cupello's door with the key, entered his apartment, and arrested him. Constable Webb arrested Cupello solely for hitting him with the door. Constable Webb did not witness the commission of any other alleged crime. That same day, the State charged Cupello with battery on a law enforcement officer, as a Class A misdemeanor.

The trial court held Cupello's bench trial on May 12, 2014. At trial, Cupello argued in defense4 of the charges (1) that Constable Webb was not acting in his capacity as a law enforcement officer but, instead, was "acting in his capacity as an apartment complex employee, as the courtesy officer responding to an apartment issue"; and (2) that the placement of Constable Webb's foot inside the threshold of the door constituted an unlawful entry of his dwelling, and, therefore, Cupello had a statutory right to use reasonable force against Constable Webb to terminate the entry into his home. Id. at 19. The trial court disagreed with Cupello and entered findings that (1) "[Constable Webb] was called because of complaints on [Cupello's] behavior," id. at 49; and (2) because Cupello and Constable Webb had a "consensual encounter" at the threshold of the apartment, Cupello "acquiesced in [Constable Webb's] presence [in] the door frame." Id. at 23, 29, 50. Thus, the court found that Constable Webb had acted in his capacity as a law enforcement officer and that Cupello had consented to Constable Webb's entry, which made the entry lawful. The court, therefore, convicted Cupello as charged and sentenced him to 365 days in Marion County Jail, with 361 days suspended. This appeal ensued.

Discussion and Decision

Cupello alleges two errors. First, he contends that the State presented insufficient evidence to support his conviction because it did not prove that Constable Webb was "engaged in [his] official duty" but, rather, was engaged only in his obligations as a courtesy officer for Emerson Village. I.C. § 35-42-2-1(a)(1)(B). Second, Cupello asserts that, even if Constable Webb was engaged in his official duties as a law enforcement officer, Indiana Code Section 35-41-3-2(i)(2) gave him the right to use reasonable force to prevent or terminate Constable Webb's unlawful entry into his dwelling. We address each argument in turn.

Issue One: Official Duties

Cupello first contends that the State failed to prove that, when he encountered Constable Webb at his door, Constable Webb was engaged in the performance of his official duties, which is a prerequisite to the crime of battery on a law enforcement officer. See I.C. § 35-42-2-1(a)(1)(B). Thus, Cupello argues that the State presented insufficient evidence to support his conviction.

Our standard of review for sufficiency of the evidence claims is well-settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind.2000).

Pillow v. State, 986 N.E.2d 343, 344 (Ind. Ct.App.2013) (citations omitted) (internal quotation marks omitted).

Further, Indiana Code Section 35-42-2-1 states:

Although a constable is a law enforcement officer, see I.C. § 35-31.5-2-185(a)(1), this case is complicated by the fact that, when the incident with Cupello occurred, Constable Webb was off-duty, was working in his capacity as a courtesy officer for Emerson Village, was responding to a call from Emerson Village's management, and apparently never identified himself, either verbally or by appearance, as a law enforcement officer.

Nevertheless, an off-duty police officer can perform his official duties, even when responding to a private call. See Nieto v. State, 499 N.E.2d 280, 281-82 (Ind.Ct.App.1986). Indeed, in Tapp v. State, 406 N.E.2d 296, 302 (Ind.Ct. App.1980), we explained that "it is the nature of the acts performed and not whether the officer is on or off duty, in or out of uniform, which determines whether the officer is engaged in the performance of his official duties." Thus, "when a police officer, whether in uniform or not, takes it upon himself to enforce the law in order to maintain peace and order for the benefit of the public, the officer is performing official duties as a police officer." Nieto, 499 N.E.2d at 282. As such, despite the complications noted above, the State asserts that Constable Webb acted as an officer, not as a private security agent, because he responded to a complaint of intimidation in order "to keep the peace and investigate a possibly criminal incident between Cupello and the apartment staff." Appellee's Br. at 8.

Although the State is correct that Constable Webb's actions evince the execution of the officer's official duties, something more is required: a citizen who encounters an off-duty law enforcement officer must have an objective basis to determine that the officer is acting in his official capacity and not in a private capacity. The holdings in Tapp and its progeny demonstrate this principle.

In Tapp, for instance, we upheld Tapp's conviction for battery on a law enforcement officer after Tapp had bitten Weisheit, "a plainclothes security guard." 406 N.E.2d at 297. Weisheit had approached Tapp after he had observed her shoplift. In holding that Weisheit was engaged in his official duties, we noted that he had "displayed his police badge and announced his status to [her5] and informed her that she was under arrest pursuant to the laws of this state." Id. at 302.

Likewise, in Nieto we also upheld a conviction for battery on a law enforcement officer. There, Officer Fourkiller responded to a private phone call to his home from his friend Gomez regarding a domestic dispute between Gomez's mother and Nieto. Fourkiller responded in his personal vehicle and was dressed in plain clothes, and Nieto struck him after Fourkiller "advised Nieto to calm down and not hit the women anymore." 499 N.E.2d at 281. Although the facts do not state that Fourkiller identified himself as an officer, Nieto "knew Fourkiller was a police officer" and the reason for the officer's presence. Id.

However, in City of Fort Wayne v. Moore, 706 N.E.2d 604 (Ind.Ct.App.1999), a negligent hiring and retention case, we affirmed the trial court's determination that Stanford, an off-duty officer with the City of Fort Wayne, had acted outside the scope of his employment with the City. There, Stanford attacked Moore, and, during the altercation, Stanford "identified himself as `an officer'" but "never displayed a badge, did not mention the City of Fort Wayne, did not handcuff Moore[,] and never informed Moore that he was under arrest." Id. at 605. And Stanford drove "his personal vehicle and was not wearing a police uniform or any other apparel that might alert a citizen that Stanford was a police officer." Id.

In other words, it is the State's burden to prove by objective evidence that a citizen who has encountered a law enforcement officer either knew or should have known that he was dealing with an officer, a factual predicate that is consistent with our law in other contexts. For example, subsection (a)(3) of our resisting law enforcement statute requires the State to prove that a person fled "after the officer has, by visible or audible means... identified himself or herself and ordered the person to stop." I.C. § 35-44.1-3-1(a)(3). And, similarly, Indiana Code Section 9-30-2-2 requires an officer who makes an arrest or issues an information and summons in connection with the operation of a motor vehicle provide indicia to the operator of the vehicle that he is, in fact, a law enforcement officer. That provision provides:

Id.

Thus, where the State seeks to prove that an off-duty law enforcement officer is engaged in the execution of his official duties, it must satisfy a two part test: the State must prove by objective evidence that (1) the nature of the acts performed demonstrate that the officer sought to enforce the law to maintain peace and order for the benefit of the public; and (2) the citizen knew or should have known both that the person was an officer and that the officer was acting in his official, and not his private, capacity. See, e.g., Tapp, 406 N.E.2d at 297, 302; Nieto, 499 N.E.2d at 282.

We now apply this test and hold that, under our highly deferential standard of review, the State met its burden here. The evidence most favorable to the trial court's judgment demonstrates that Constable Webb went to Cupello's apartment to respond to a complaint of intimidation, which may have been a criminal act pursuant to Indiana Code Section 35-45-2-1. Thus, the State proved that Constable Webb took it upon himself to enforce the law in order to maintain peace and order.

Moreover, although the record does not disclose whether Constable Webb wore his uniform or otherwise objectively identified himself as a law enforcement officer, the evidence establishes that Cupello and Webb had dealt with one another on a prior occasion. And, when Constable Webb confronted Cupello on this occasion, Cupello told Constable Webb that he wished to press charges against Amond for harassment. A reasonable inference from this evidence is that Cupello knew that Constable Webb was both a law enforcement officer and acting in his official capacity. The State, therefore, met its burden on the second prong as well.

Thus, we hold that the State presented sufficient evidence to prove that Constable Webb was performing his official duties when he confronted Cupello. We turn now to the questions of whether Cupello had a statutory right to exclude Constable Webb from his home and whether Cupello used reasonable force to do so.

Issue Two: The Castle Doctrine

Cupello contends that, even if Constable Webb was engaged in his official duties as a law enforcement officer, Indiana Code Section 35-41-3-2(i)(2) gave him the right to use reasonable force to prevent or terminate Constable Webb's unlawful entry into his dwelling. Specifically, Cupello's claim is that the State presented insufficient evidence to rebut his affirmative defense to the State's allegation that he battered a law enforcement officer. We apply the same standard of review to such challenges as we do to other challenges to the sufficiency of the evidence. Murrell v. State, 960 N.E.2d 854, 857 (Ind.Ct.App.2012). "A conviction must be affirmed 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. We consider only the probative evidence and reasonable inferences supporting the judgment." Id.

Indiana Code Section 35-41-3-2 provides:

As stated above, our legislature enacted the relevant provisions of Indiana Code Section 35-41-3-2 in response to our supreme court's opinion on rehearing in Barnes. We now apply that statute here.8

The probative evidence and reasonable inferences supporting the judgment are undisputed and lead unerringly to the conclusion that Constable Webb unlawfully entered Cupello's dwelling by placing his foot within the threshold of the apartment door without lawful justification. As our supreme court explained in Middleton v. State, 714 N.E.2d 1099, 1101 (Ind.1999):

And, in Indiana, "any breach of the threshold, however slight, by any part of the body" constitutes criminal residential entry. Williams v. State, 873 N.E.2d 144, 148 (Ind.Ct.App.2007); see I.C. § 35-43-2-1.5.

Our jurisprudence regarding resisting law enforcement during an arrest performed within the arrestee's home also sheds light on what it means for an officer to unlawfully enter another's dwelling. See Harper v. State, 3 N.E.3d 1080, 1085 (Ind.Ct.App.2014); Adkisson v. State, 728 N.E.2d 175, 178 (Ind.Ct.App.2000).9 In Adkisson, a police officer questioned the defendant about an alleged battery. The officer approached her closed door, and, when she answered, he

728 N.E.2d at 176-77.

We reversed Adkisson's conviction for resisting law enforcement and stated that, although the officer "arguably had probable cause to believe that Adkisson had committed battery" and, therefore, "the right to arrest her without a warrant, ... absent consent, the Fourth Amendment [nevertheless] requires that ... an officer may only enter a defendant's home to make the arrest when exigent circumstances exist that make it impracticable to obtain a warrant first." Id. at 177. Thus, we held that the officer had acted unlawfully when he entered Adkisson's home, see id. at 178, which meant that the State could not prove an essential element of the crime, namely, that "the officer was lawfully engaged in the execution of his duties as an officer," id. at 177.11

In this court's recent opinion in Harper, we reached the same conclusion as in Adkisson where officers had lied to obtain consent to enter the defendant's home in order to conduct a warrantless arrest. Harper, 3 N.E.3d at 1081. We equated the officer's "use of a `ruse' to enter Harper's home" with the "Adkisson's deputy's decision to place his foot in Adkisson's doorway to prevent her from closing her door." Id. at 1085.

Here, as in Adkisson and Harper, Constable Webb did not have a warrant to enter Cupello's apartment, nor does any exception to the warrant requirement apply. And while the officers in Adkisson and Harper had probable cause to conduct a warrantless arrest, here, Constable Webb lacked probable cause to invade Cupello's residence in the first instance.12 Constable Webb had no lawful justification for breaching the threshold of Cupello's apartment, and, in so doing, he was not lawfully engaged in the execution of his duties as an officer. See Adkisson, 728 N.E.2d at 177.

Thus, as a matter of law, Cupello was entitled to use reasonable force to terminate Constable Webb's unlawful entry and to prevent further entry by Constable Webb into his home. See I.C. § 35-41-3-2(i)(2) To prevent entry into his home, Cupello used reasonable force when he closed the door. Given that Constable Webb had inserted his foot to prevent the door from closing, Cupello's natural response was to persist in attempting to close the door, and, while several tries were required, his conduct to thwart the unlawful entry was not disproportionate to the entry itself.

Given the undisputed evidence, the State attempts, as it did at trial, to negate Cupello's affirmative defense by arguing that the evidence supports an inference that Cupello consented to Constable Webb's entry into his home. Despite the fact that Cupello testified that he did not give Constable Webb permission to enter his home, the trial court accepted the State's argument, finding that Cupello acquiesced in Constable Webb's entry by having a conversation with Constable Webb at the threshold of his apartment. But we reject the notion that a conversation held at the threshold of one's home is, in itself, an invitation for a law enforcement officer to enter the home. To the contrary, as our supreme court has succinctly stated:

Cox v. State, 696 N.E.2d 853, 858 (Ind. 1998). Had Cupello wished to invite Constable Webb into his home, he would have made that invitation explicit, and Constable Webb would not have needed to place his foot in the threshold surreptitiously. The conversation at the door provided neither consent nor acquiescence to Constable Webb's entry.

Nevertheless, the State argues that, under Indiana Code Section 35-41-3-2(j)(4), Cupello lacked justification to use force because he had a reasonable belief that Constable Webb was acting lawfully or engaged in the lawful execution of his duties. But we have already established that Constable Webb acted unlawfully when he breached the threshold of Cupello's dwelling. See, e.g., Adkisson, 728 N.E.2d at 177 (holding that the unlawful entry into a private dwelling is not a lawful execution of an officer's duties). Therefore, we reject the State's argument.

Finally, the State argues that, because Cupello did not know Constable Webb had placed his foot inside Cupello's apartment, Cupello could not have had a reasonable belief that force was necessary to prevent or terminate Constable Webb's entry. We cannot agree. Cupello merely attempted to end the conversation with Constable Webb by closing the door. However, when he tried to close the door, he discovered that Constable Webb had obstructed the path of the door with his foot and that the door would not close. At this point, Constable Webb's foot became stuck, and he began to resist the door. Thus, Cupello began to struggle against Constable Webb, and Cupello slammed the door two more times, harder than in his first attempt. In other words, Cupello discovered Constable Webb's unlawful entry when he first attempted to close the door and, after two more attempts, was able to terminate the unlawful entry into his dwelling. Constable Webb had entered Cupello's apartment without consent, probable cause, reasonable suspicion, or exigent circumstances. Because Constable Webb resisted Cupello's subsequent attempts to close the door, Cupello had a reasonable belief that force was necessary to terminate Constable Webb's unlawful entry into his apartment.

We hold, therefore, that the State presented insufficient evidence to rebut Cupello's affirmative defense. Again, the probative evidence is undisputed. The placement of Constable Webb's foot inside the threshold of the apartment door was an unlawful entry by a public servant into Cupello's dwelling, and Cupello exercised his statutory right under Indiana Code Section 35-41-3-2(i)(2) — which reaffirmed that the Castle Doctrine is an affirmative defense to the crime of battery on a law enforcement officer — to use reasonable force both to terminate that entry and to prevent further access to his home. Cupello used reasonable force by closing his door. Thus, as a matter of law, the facts do not support a conviction for battery on a law enforcement officer.

Reversed.

BRADFORD, J., concurs.

MATHIAS, J., concurs with separate opinion.

MATHIAS, Judge, concurring.

I fully concur in the majority's holding that Cupello exercised reasonable force under Indiana Code section 35-41-3-2 (i)(2) to prevent or terminate Constable Webb's unlawful entry into Cupello's home.

I find it especially disturbing that Constable Webb freely admitted that it was his "standard practice" to place his foot just inside the threshold of the door when talking to someone, to "to keep them from slamming the door in [his] face." Tr. p. 15. As the majority notes, without a warrant, this is an unconstitutional entry into the home, see Middleton, 714 N.E.2d at 1101, and arguably criminal residential entry, see Williams, 873 N.E.2d at 148, I.C. § 35-43-2-1.5. However rude it might be to do so, a private citizen has a right to close his or her door on any unwelcome visitor, including a police officer, unless the officer has a warrant.

I also concur with the majority's conclusion that, under the particular facts and circumstances of this case, the trial court, as the trier of fact, could reasonably conclude that Constable Webb was engaged in the execution of his official duties.

However, despite my concurrence with this conclusion, I would note that confrontations such as the one that occurred in this case — where a citizen encounters an off-duty law enforcement officer working in the private sector but acting in his official capacity — are fraught with ambiguity and room for misunderstanding. See generally Patricia Kubovsak Golla, Annotation, Performance of Public Duty by Off-Duty Police Officer Acting as Private Security Guard, 65 A.L.R.5th 623 (1999).

For the benefit of both law enforcement officers and citizens, the General Assembly should consider clarifying what easily visible and audible indicia are required to place a citizen on notice that he is dealing with an off-duty law enforcement officer who is, nevertheless, acting in his official, and not his private, capacity, as the legislature has already done in Indiana Code section 35-44.1-3-1(a)(3) (resisting law enforcement officers) and section 9-30-2-2 (when a law enforcement officer may make a traffic stop and issue citations). Such indicia might include wearing a standardized vest or uniform and/or displaying a badge and audibly notifying the citizen of his public authority.

Likewise, the General Assembly should consider the clearly intended and confusing appearance of private security personnel dressed in uniforms of the same color, and with identification patches that are the nearly the same, as those worn by sworn officers, as it has done with its strict limitation of blue and red emergency lighting on private vehicles. See Ind.Code § 9-21-7-10 (providing that a person in a non-emergency vehicle may not operate a vehicle with a lamp that displays a red, red and white, or red and blue signal). One need only drive in downtown Indianapolis during the afternoon rush hour to witness such private security personnel routinely stopping traffic with the legal right of way on busy public streets and highways for the benefit of private parking facility owners. These persons do this without any apparent statutory authority,13 and perhaps even commit an infraction when they do so.14

Without such careful consideration and differentiation by the General Assembly, Hoosiers have a right to wonder precisely who has been invested with the public authority to regulate civil society, and to resent the instances where government has apparently delegated public authority to private security for purely private purposes and gains.

Subject to these additional public policy concerns, I fully concur in the majority's decision.