Christopher A. Neeley, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Elkhart Superior Court The Honorable Charles C.
Wicks, Judge Trial Court Cause No. 20D05-1408-F6-126
ATTORNEY FOR APPELLANT Elizabeth A. Bellin Elkhart, Indiana
ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General
of Indiana Katherine Modesitt Cooper Deputy Attorney General
Christopher A. Neeley appeals his convictions for
intimidation as a level 6 felony and resisting law
enforcement as a class A misdemeanor. Neeley raises two
issues, one of which we find dispositive and revise and
restate as whether the trial court abused its discretion in
admitting officer testimony. We reverse.
and Procedural History
On the evening of August 26, 2014, Linda Hooley was traveling
to her home along County Road 35 when she observed a man
walking on the road. She was concerned because County Road 35
does not have a lot of walkers and it was very foggy that
evening. Linda believed that she had seen the same person
walk past her home a few times in the past. The walker, later
identified as Neeley, caught her attention because he
appeared to be walking with "no purpose, " in which
he proceeded very slowly and was looking at the cars that
were passing by him. Transcript at 173. She also thought he
looked like a stranger, which caused some alarm. Her husband
Brad Hooley arrived home minutes later, Linda brought up the
walker to him, and Brad responded that he had observed the
walker as well. They decided to call the police.
Officer Cleo Sheppard with the Middlebury Police Department
responded to the dispatch, which had posted at approximately
10:00 p.m. The dispatcher told Officer Sheppard that
"they did have a couple calls of a peeping Tom . . . and
a suspicious person in the area of County Road 22 and
35." Id. at 205. Officer Sheppard came upon an
individual matching the description walking northbound with
traffic on County Road 35, which did not have a shoulder.
Noting the "minor traffic infraction" of walking
with traffic, Officer Sheppard engaged with the walker
"since this was the subject in question . . . ."
Id. at 207. Officer Sheppard put his spotlight on
Neeley and, using his PA system, told him to stop, but Neeley
did not do so. Officer Sheppard exited his vehicle and
attempted to stop him, again Neeley did not stop, and Officer
Sheppard then returned to his car. Using his PA system
Officer Sheppard then again asked Neeley to stop, believed
Neeley might jump a fence and run, and he checked on the
status of assisting officers.
After approximately ten minutes, Officer Andrew Ahlersmeyer
of the Elkhart County Sheriff's Department arrived to
assist from the opposite direction, from which Officer
Sheppard advised him to approach and "light the subject
up so we can get him to stop." Id. at 211.
Figuring that Neeley might run, Officer Sheppard
"grabbed" Neeley to "detain him."
Id. at 212-213. Officer Sheppard pulled Neeley's
hat upward and recognized him, as Officer Sheppard was
familiar with Neeley based on previous encounters with him.
While holding Neeley, Officer Sheppard told him to untense
his muscles because in his experience an individual could
"be setting you up for . . . a sucker punch or
anything." Id. at 217. Officer Ahlersmeyer
grabbed the other side of Neeley. Officer Sheppard asked
Neeley where he was going, and Neeley responded "to a
friend's house, " but Officer Sheppard believed that
house was a former residence of his grandparents and was not
occupied by someone Neeley currently knew. Id. at
218. At some point, Middlebury Police Officer Aaron Smartt
also arrived on the scene.
The officers asked Neeley multiple times for a place they
could transport him, or, alternatively, for a phone number so
they could call his dad or someone else to come and pick him
up. About thirteen minutes following Officer
Ahlersmeyer's arrival and Neeley's detention, and
after being threatened by Officer Sheppard, Neeley told
Officer Sheppard: "If you didn't have that vest on
I'd f--- you up." Officer Sheppard "took it as
that that [Neeley] wants to do something to [him]."
Id. at 224-225. At about the same time, Officer
Sheppard observed that Neeley was still tensing his muscles,
raising his arms, and "powering up." Id.
at 225. The officers then did a pat down for officer safety,
and Officer Sheppard had made the decision in his mind that
Neeley "was going to jail" if he "couldn't
find no where to go . . . ." Id. at 226. Neeley
also began to directly stare at the officers giving Officer
Sheppard "the feeling get ready cause it's going to
happen, " but he did not believe there was "much of
a problem" because at that point there were four
officers on the scene. Id. at 228. Officer Sheppard
believed that Neeley was "powering up again, "
which would give Neeley "enough strength to forcibly
activate himself" to potentially break a hold.
Id. at 228-229. As the officers placed Neeley under
arrest by placing him in handcuffs, Neeley "started to
pull away again" or "stiffened up" and
"wouldn't . . . put his hands behind his back"
before Officer Smartt "took a better grip" and they
"were able to secure him and place him in handcuffs . .
. ." Id. at 229, 308.
On August 28, 2014, the State charged Neeley with
intimidation as a level 6 felony and resisting law
enforcement as a class A misdemeanor for forcible resistance.
On January 15, 2015, Neeley filed a motion to suppress,
asserting that information and evidence obtained from the
search "was unlawfully obtained because police lacked
authority to stop or search [him] under the
4thAmendment of the U.S. Constitution or Article
I, [Section] 11 of the Indiana Constitution."
Appellant's Appendix at 54. On May 21, 2015, the court
held a hearing on the motion, and on July 21, 2015, it denied
On August 13, 2015, the court commenced a jury trial. The
court granted Neeley a continuing objection to the testimony
of the police officers as fruit of the poisonous tree in that
the arrest was "unlawful" and "was made
without probable cause" or due process under the Fourth
Amendment and Article 1, Section 11 of the Indiana
Constitution. Transcript at 143. In granting Neeley's
continuing objection, the court instructed Neeley's
counsel: "You do not need to be jumping up and down and
making continuous objections during the officer's
testimony." Id. at 144.
During the testimony of Officer Sheppard, the court admitted
into evidence a video recording taken by Officer
Ahlersmeyer's dash cam depicting Officer Sheppard driving
behind Neeley as he walked with traffic and Neeley attempting
to walk past Officer Ahlersmeyer's police car. The
recording captured audio of the interaction between Neeley
while he was being detained by the officers, although the
individuals are not shown. In the recording, which was played
for the jury, Officer Sheppard can be heard asking Neeley to
untense his muscles, and, after asking Neeley where he was
headed, Officer Sheppard stated "I'd be damned if I
let you hurt me, " to which Neeley replied "I
ain't gonna hurt you." State's Exhibit 2 at
6:50-6:59. At one point, Officer Sheppard stated
"I'll do the same damn shit again, beat your ass and
put you in jail." Id. at 7:02-7:07. Officer
Sheppard then asked Neeley again where he would like to go or
if there was somewhere he could go. After again requesting
that Neeley untense his muscles, one of the other officers
informed Neeley: "There's three of us and there
could potentially be a fourth here with a dog in a minute,
" that "you're going to get hurt, " and
that "we don't want to do that." Id.
at 8:00-8:11. Soon after, one of the officers stated to
Neeley: "It's your dad or jail." Id.
at 10:19-10:21. Officer Sheppard also stated at one point:
"Stop, Chris. You know I know that game and I know what
you're thinking, so you better stop. I'm tellin'
you right now. You do that again, you will kiss the ground.
I'm not going to play that." Id. at
Regarding the manner in which Officer Sheppard dealt with
Neeley as depicted in the video, Officer Sheppard testified:
"that is what he understands. That is what he reacts to
and thirdly, he knows that I don't play that type of game
especially at night like that." Transcript at 222. On
cross-examination, Officer Sheppard testified that he did not
have a report that Neeley was involved in being a peeping Tom
or trespassing and that it was not illegal to walk at night.
He also indicated that he "did not see [Neeley]
committing any crimes" when he came upon Neeley walking
along the roadway. Id. at 245. He indicated that he
"did not have any articulable suspicion . . . about any
criminal activity" on the part of Neeley when he was
following Neeley along the road. Id. at 248. Officer
Sheppard also admitted that he did not bring up the fact ...