FOR PUBLICATION
ATTORNEYS FOR APPELLANTS:
ATTORNEYS FOR APPELLEE:
EDWARD L. MURPHY, JR.
WILLIAM A. RAMSEY
CHARITY A. MURPHY
Murphy Ice & Koeneman LLP
Fort Wayne, Indiana
GREGORY F. ZOELLER
Attorney General of Indiana
FRANCES BARROW
Deputy Attorney General
Indianapolis, Indiana
FILED
Sep 19 2011, 10:04 am
IN THE
COURT OF APPEALS OF INDIANA
JOHN M. BREWER and
SUSAN B. BREWER,
Appellants-Plaintiffs,
vs.
INDIANA ALCOHOL AND
TOBACCO COMMISSION,
Appellee-Defendant.
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No. 49A02-1011-CT-1276
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Theodore M. Sosin, Judge
Cause No. 49D02-0801-CT-1080
September 19, 2011
OPINION - FOR PUBLICATION
CRONE, Judge
CLERK
of the supreme court,
court of appeals and
tax court
Case Summary
John M. Brewer (“Brewer”) and his wife, Susan B. Brewer,1 appeal a negative jury
verdict in their action against the Indiana Alcohol and Tobacco Commission (“ATC”) for
false arrest and excessive force allegedly used against Brewer during a routine inspection of
their bar, The Wooden Nickel. The state excise officers who conducted the inspection
claimed that Brewer was confrontational and profane and that he disrupted them in their
duties. They arrested him for disorderly conduct and hindering law enforcement. Brewer
later asserted that he was injured during the handcuffing and arrest process and also suffered
emotional and economic damage as a result of the arrest.
When a jury found against him, Brewer filed this appeal, claiming that the trial court
erred in admitting and excluding certain evidence; denying his motion for judgment on the
evidence on the issues of probable cause and contributory negligence; and instructing the jury
on contributory negligence. Finding no reversible error, we affirm.
Facts and Procedural History
Brewer owns a bar called the Wooden Nickel in North Judson. At 10:40 p.m. on June
14, 2003, five excise officers entered the Wooden Nickel to conduct a routine inspection.
The bar was crowded due to a local festival, and the excise police were present to check the
identification of patrons who appeared to be underage. The officers’ goals were to cause as
Brewer’s wife, Susan B. Brewer, was unsuccessful in her claim for loss of consortium. Because her
claim is derivative and she was not involved in the events surrounding her husband’s arrest, we refer to John
Brewer in the narrative as “Brewer” and the appellants collectively as “Brewer.”
1
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little disruption as possible, perform routine checks, and then leave. While four of the
officers checked IDs near the front entrance, Master Officer Kevin Akers walked through the
bar and was confronted by Brewer, who demanded to know why the officers were there. As
Brewer and Officer Akers approached the area near the front entrance, Officer Akers
explained that the excise officers were there for a routine inspection. A routine inspection
involves checking for underage and intoxicated patrons and ensuring that the establishment’s
cleanliness and recordkeeping are in compliance with state alcohol laws.
Brewer continued to demand answers from the officers while the officers were
checking patron IDs. As patrons began to notice the exchange, Officer Akers escorted
Brewer to the front door. Brewer pulled away, and some pushing ensued. Two other officers
escorted him outside, and Brewer cursed and screamed profanities at the officers as they
arrested him for hindering law enforcement and disorderly conduct. During the arrest
process, he told the officers that he had an existing shoulder injury and that he could not
withstand handcuffs, so the officers handcuffed him using a double-cuffing process, to give
his shoulder more leeway. Brewer later asserted that his shoulder injury was exacerbated
during the handcuffing and arrest process and that he also suffered emotional and economic
damage as a result of the arrest.
On June 13, 2005, Brewer filed an action against the ATC, claiming false arrest,
excessive force, and loss of consortium. A jury trial began on October 26, 2009, and the jury
returned a verdict in favor of the ATC on all claims. Brewer now appeals. Additional facts
will be provided as necessary.
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Discussion and Decision
I. Admissibility of Evidence
Brewer first asserts that the trial court erred in admitting certain evidence and
excluding other evidence. We apply an abuse of discretion standard when reviewing a trial
court’s decision to admit or exclude evidence. Hatter v. Pierce Mfg., Inc., 934 N.E.2d 1160,
1173 (Ind. Ct. App. 2010), trans. denied (2011). An abuse of discretion occurs where the
trial court’s decision is clearly against the logic and effect of the facts and circumstances
before it or the reasonable, probable, and actual deductions to be drawn therefrom. Id.
Brewer challenges the trial court’s admission of data from his psychological test, exclusion
of the deposition testimony of his purported expert, and exclusion of evidence that he was
never charged with a crime following his arrest.
A. Admission of Psychological Test Data
Brewer contends that the trial court erred in admitting raw data from a psychological
test that he underwent during the course of the mental health treatment he received following
the incident at The Wooden Nickel. To establish reversible error, Brewer must demonstrate
not only that the trial court erroneously admitted the evidence, but also that such evidence
was likely to have a prejudicial impact upon the mind of the average juror, thereby
contributing to the verdict. Granger v. State, 946 N.E.2d 1209, 1217 (Ind. Ct. App. 2011).
Here, Brewer challenges the trial court’s admission of the ATC’s Exhibit H containing
raw data collected by clinical psychologist Daniel L. Schultz as part of an extensive
psychological test he conducted on Brewer. Notably, the ATC’s Exhibit G was admitted
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without objection. Exhibit G contains Dr. Schultz’s summary of the results of Brewer’s
psychological test. Brewer contends that he was prejudiced by the admission of Exhibit H
because the raw data was not intended to be analyzed by nonprofessional people such as
jurors. However, the data formed the basis for Dr. Schultz’s summary; thus, it was relevant
in providing support for his findings. Moreover, Brewer did not object during closing
argument when the ATC’s counsel referenced some of Brewer’s individual test responses
contained in Exhibit H. As such, he has failed to preserve this error for appeal. See Johnson
v. State, 928 N.E.2d 893, 899 (Ind. Ct. App. 2010) (stating that failure to object to improper
statements made during closing argument results in waiver of issue for appeal).
B. Exclusion of Expert Testimony
Brewer also claims that the trial court erred in excluding the deposition testimony of
his purported expert. “No error in ... the exclusion of evidence ... is ground for ... vacating,
modifying or otherwise disturbing a judgment or order or for reversal on appeal, unless
refusal to take such action appears to the court inconsistent with substantial justice.” Ind.
Trial Rule 61. Thus, to obtain a reversal, Brewer must demonstrate that the exclusion of the
testimony amounted to an abuse of discretion and that he was prejudiced thereby. Dan
Cristiani Excavating Co. v. Money, 941 N.E.2d 1072, 1078-79 (Ind. Ct. App. 2011), trans.
dismissed.
Here, Brewer challenges the trial court’s exclusion of the deposition testimony of his
purported expert, former SWAT Commander Timothy Corbett. A review of the record
shows that the trial court excluded both parties’ purported experts, both for the same reason:
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their lack of specific experience as excise officers.2 In his deposition, Commander Corbett
testified regarding his extensive work as a SWAT team leader. He lacked specific
experience as an excise officer, but had some experience working backup for the excise
police in the late 1970s and early 1980s. It was upon this limited backup experience that he
based his opinion that the excise officers could have prevented the incident with Brewer by
taking control over the bar from the outset, i.e., turning up the lights, silencing the band, and
cutting off the drink orders. Based on the foregoing, he stated that he did not believe that
probable cause existed for Brewer’s arrest.
We conclude that the trial court could have admitted Commander Corbett’s testimony
to explain general law enforcement principles pertaining to crowd control. Such general
principles were relevant to the case and are not limited to a specific department within law
enforcement. Any deficiencies stemming from the officer’s lack of specific experience in the
area of excise policing would go to the weight and not admissibility of his testimony. See
McIntosh v. Cummins, 759 N.E.2d 1180, 1184 (Ind. Ct. App. 2001) (stating that expert
witness’s competency may be determined by his knowledge of the subject generally and that
any lack of knowledge on specific subject goes to the weight and not admissibility of his
opinion).
Any error notwithstanding, we conclude that Brewer was not prejudiced by the
exclusion of Commander Corbett’s testimony.
2
The thrust of Commander Corbett’s
Testimony from the ATC’s expert, Lieutenant Mark French, was excluded pursuant to an order in
limine.
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explanations and conclusions regarding the excise officers’ alleged deficiencies involves the
officers’ decision to keep the lights low, the music playing, and the drinks flowing during the
course of their inspection. The record contains lengthy testimony from the various excise
officers regarding the different protocols they regularly follow for a raid versus a routine
inspection. Commander Corbett’s opinion as to how the excise officers should have
proceeded echoed the standard protocol for a raid, not a routine inspection. Here, the excise
officers were conducting a routine inspection, for which their standard protocol is to cause as
little disruption as possible while targeting patrons who appear to be underage or intoxicated,
to make the required checks, and to leave. As such, we find no prejudice in the trial court’s
exclusion of Commander Corbett’s testimony.
C. Exclusion of Evidence of No Criminal Charges
Brewer also claims that the trial court abused its discretion in excluding evidence that
he was released without being charged and has not since been charged with any crimes
stemming from the incident at The Wooden Nickel. He predicates his claim on the premise
that the prosecutor’s subsequent decision not to formally charge him was tantamount to a
lack of probable cause to arrest him in the first place. We disagree. The determination of
probable cause depends not upon post-arrest events, but rather, on the facts and
circumstances present “at the moment the arrest was made.” Row v. Holt, 864 N.E.2d 1011,
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1018 (Ind. 2007) (quoting Hunter v. Bryant, 502 U.S. 224, 228 (1991)).3 The State’s
subsequent decision not to charge a suspect “is a post-arrest event that does not suggest
anything about the reasonableness of the arrest.” Id. Thus, we conclude that the excluded
evidence concerning the State’s subsequent decision not to charge Brewer was not probative
of whether probable cause existed to arrest him and that, as such, the trial court acted within
its discretion in excluding it.
II. Probable Cause
In a related argument, Brewer asserts that the trial court erred in denying his motion
for judgment on the evidence on the issue of probable cause. The denial of a motion for
judgment on the evidence lies within the broad discretion of the trial court and will be
reversed only for an abuse of that discretion. Hartford Steam Boiler Inspection & Ins. Co. v.
White, 775 N.E.2d 1128, 1133 (Ind. Ct. App. 2002), trans. denied (2003). Because the
purpose of a motion for judgment on the evidence is to test the sufficiency of the evidence,
we review the trial court’s decision using the same standard that the trial court used in
considering the motion in the first place. Id. In other words, we consider only the evidence
and reasonable inferences most favorable to the non-moving party, and determine whether
3
To the extent Brewer argues that Row is distinguishable due to its involvement of a grand jury, we
disagree, and note that whether the case involves a grand jury’s ultimate decision not to indict a person or a
prosecutor’s ultimate decision not to charge a person by information, both decisions are made subsequent to
arrest and thus are not probative of probable cause to arrest, as measured at the time and place of the arrest.
Also, to the extent Brewer dismisses as mere dicta our supreme court’s discussion of this issue, we note that
the discussion was included to emphasize what evidence may be considered in determining the existence of
probable cause and included as support citations to numerous cases, including a case from the U.S. Supreme
Court.
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there was “no substantial evidence supporting an essential issue in the case.” Chi Yun Ho v.
Frye, 880 N.E.2d 1192, 1201 (Ind. 2008).
Indiana Trial Rule 50(A) provides in pertinent part,
Where all or some of the issues in a case tried before a jury … are not
supported by sufficient evidence or a verdict thereon is clearly erroneous as
contrary to the evidence because the evidence is insufficient to support it, the
court shall withdraw such issues from the jury and enter judgment thereon or
shall enter judgment thereon notwithstanding a verdict. A party may move for
such judgment on the evidence.
Because Brewer raised a false arrest claim, he was required to demonstrate that the excise
officers lacked probable cause to arrest him. Row, 864 N.E.2d at 1016. Brewer argues that
the officers lacked probable cause as a matter of law, thus entitling him to a judgment on the
evidence. However, in an action for false arrest, probable cause for arrest is normally an
issue for the jury’s determination. Miller v. City of Anderson, 777 N.E.2d 1100, 1104 (Ind.
Ct. App. 2002), trans. denied (2003). “Probable cause exists when, at the time of the arrest,
the arresting officer has knowledge of facts and circumstances that would warrant a person of
reasonable caution to believe that the suspect had committed a criminal act.” Winebrenner v.
State, 790 N.E.2d 1037, 1040 (Ind. Ct. App. 2003). The amount of evidence necessary to
meet the probable cause requirement is determined on a case-by-case basis, and the facts and
circumstances need not relate to the same crime with which the suspect is ultimately charged.
Id.
Here, the excise officers arrested Brewer for disorderly conduct and for hindering
enforcement of the alcohol laws. Indiana Code Section 35-45-1-3 states that disorderly
conduct occurs when a person recklessly, knowingly, or intentionally engages in fighting or
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tumultuous conduct, makes unreasonable noise after a request to stop, or disrupts a lawful
assembly. Indiana Code Section 7.1-5-8-1 states that “it is a Class C misdemeanor for a
person to recklessly hinder, obstruct, interfere with, or prevent the observance or
enforcement” of any provision, rule, or regulation codified under the alcohol and tobacco
statutes. When he applied for his alcohol permit, Brewer consented “to the entrance,
inspection, and search” of his licensed premises by the excise police, with or without a
warrant, to determine his compliance with the alcohol statutes. Ind. Code § 7.1-3-1-6.
The evidence most favorable to the non-moving party, the ATC, indicates that when
the excise officers entered Brewer’s bar to conduct a routine inspection, Brewer exhibited a
confrontational attitude toward the officers from the time he approached and questioned
Officer Akers, to the time he approached the other officers in the midst of their identification
checks, to the time he unleashed his verbal tirade on the way out of the building. As such,
the excise officers had probable cause to believe that Brewer was acting in a disorderly
manner that disrupted their inspection of the premises.
As previously discussed, the various excise officers were questioned concerning the
ordinary procedures for excise police when conducting routine inspections versus full-scale
raids, and the excise officers emphasized that in routine inspections such as the instant one,
their goal is to create as little disruption as possible. To the extent Brewer cites the excise
officers’ failure to silence the music, turn up the lights, and order the bartenders to stop
serving alcohol as evidence that the officers lacked probable cause to arrest him, we note that
even assuming the officers acted in a procedurally deficient manner, such “failure to follow
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the usual procedure is not necessarily evidence of lack of probable cause.” Row, 864 N.E.2d
at 1018.
In sum, the evidence and inferences most favorable to the non-moving party do not
support a finding that, as a matter of law, the excise police lacked probable cause to arrest
Brewer. Consequently, the trial court acted within its discretion in denying Brewer’s motion
for a judgment on the evidence on the issue of probable cause.
III. Contributory Negligence
Finally, Brewer challenges the trial court’s treatment of the issue of contributory
negligence, arguing (A) that the trial court erred in denying his motion for judgment on the
evidence on the issue of contributory negligence; and (B) that the trial court erred in giving
Final Jury Instruction Number 15.
A. Judgment on the Evidence
Brewer claims that the trial court erred in denying his motion for judgment on the
evidence on the issue of contributory negligence. “[C]ontributory negligence is the failure of
a person to exercise for his own safety that degree of care and caution which an ordinary,
reasonable, and prudent person in a similar situation would exercise …. Contributory
negligence is generally a question of fact for the jury.” Funston v. Sch. Town of Munster,
849 N.E.2d 595, 598 (Ind. 2006).
The evidence most favorable to the non-moving party, the ATC, indicates that Brewer
assumed a confrontational posture from the time he first noticed the officers’ presence inside
the Wooden Nickel. The persistent, loud, and agitated manner in which he addressed the
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officers escalated what was intended to be a low-key ID check into an adversarial situation
requiring the officers to remove him from the sizable crowd inside the bar. His pugnacious
attitude continued with a profanity-laced rant as the officers escorted him outside and
attempted to subdue and handcuff him. Thus, we cannot say, as a matter of law, that Brewer
was not contributorily negligent. As such, the trial court acted within its discretion in
denying his motion for judgment on the evidence on the issue of contributory negligence.
B. Jury Instruction
Finally, Brewer challenges the trial court’s decision to give Final Instruction Number
15 on contributory negligence. We review a trial court’s decision to give or refuse a tendered
instruction for an abuse of discretion. Joyner-Wentland v. Waggoner, 890 N.E.2d 730, 733
(Ind. Ct. App. 2008). In conducting our review, “we consider whether the instruction (1)
correctly states the law, (2) is supported by the evidence in the record, and (3) is covered in
substance by other instructions.” Id. at 734. Jury instructions must be considered not
individually, but as a whole. Lovings v. Cleary, 799 N.E.2d 76, 79 (Ind. Ct. App. 2003),
trans. denied (2004).
Here, the trial court instructed the jury on contributory negligence as follows:
The Defendant, The Indiana Alcohol and Tobacco Commission, claims
that Plaintiff John Brewer’s own acts contributed to the injuries and harm that
the Plaintiff John Brewer claims to have suffered, and that John Brewer’s acts
were one of the reasonable causes of his injuries.
The Defendant, The Indiana Alcohol and Tobacco Commission, has the
burden of proving by the greater weight of the evidence that the Plaintiff John
Brewer’s acts contributed to the events leading to his arrest. If you decide that
John Brewer’s behavior was one of the responsible causes for his arrest, then
John Brewer cannot recover damages, even if the Defendant, the Indiana
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Alcohol and Tobacco Commission, also contributed to the circumstances
surrounding his arrest.
Appellant’s App. at 46 (emphasis added).
Essentially, Brewer argues that Final Instruction Number 15 incorrectly stated the law
because it did not specify that any negligence by Brewer must have been simultaneous with
the fault of the excise police officers.4 Brewer cites Foster v. Owens, 844 N.E.2d 216 (Ind.
Ct. App. 2006), trans. denied, as support for his argument. However, the Foster court used
the phrases “simultaneous with the fault of the defendant” and “enter[ing] into the creation of
the cause of action” as descriptive of the term “proximate cause.” Id. at 221. Moreover, our
supreme court noted in Green v. Ford Motor Co., 942 N.E.2d 791, 795 n.1 (Ind. 2011), that
the Indiana Model Civil Jury Instructions recommend using the term “responsible cause” as a
plain English substitute for “proximate cause,” thus providing better guidance for juries.
Here, the trial court followed the recommendation of the Model Instructions by
including the term “responsible cause” in Instruction Number 15. The court further clarified
the meaning of the term by giving Final Instruction Number 16, which states,
A person’s conduct is legally responsible for causing and [sic] injury if:
1. the injury would not have occurred without the conduct, and
2. the injury was a natural, probable, and foreseeable result of the conduct.
This is called a “responsible cause.”
Appellant’s App. at 47. We conclude that Instructions 15 and 16, taken together, adequately
informed the jury that in order to find Brewer contributorily negligent, they must find that his
To the extent Brewer argues that the evidence in the record does not support the trial court’s decision
to give Final Instruction Number 15, we disagree, based on our discussion in section III(A), supra.
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conduct at the time of the incident, i.e., simultaneous conduct, was a proximate or responsible
cause of his injury.
In sum, we conclude that Final Instruction Number 15 is a correct statement of the
law. As such, the trial court acted within its discretion in giving the instruction to the jury.
Accordingly, we affirm.
Affirmed.
BAILEY, J., and MATHIAS, J., concur.
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