Shoup v. State

Full title: Steven Daniel Shoup, Appellant-Defendant v. State of Indiana…

Court: Court of Appeals of Indiana

Date published: May 22, 2024

No. 23A-CR-1654 (Ind. App. May. 22, 2024)

Opinion

23A-CR-1654

05-22-2024

Steven Daniel Shoup, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff

ATTORNEYS FOR APPELLANT EDWARD M. SMID MICHAEL J. BRUZZESE SMID LAW, LLC FISHERS, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA IAN MCLEAN DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA

Riley, Judge.

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.

Appeal from the Hamilton Superior Court The Honorable J. Richard Campbell, Judge Trial Court Cause No. 29D04-2203-F6-1386

ATTORNEYS FOR APPELLANT

EDWARD M. SMID MICHAEL J. BRUZZESE

SMID LAW, LLC FISHERS, INDIANA

ATTORNEYS FOR APPELLEE

THEODORE E. ROKITA ATTORNEY GENERAL OF INDIANA IAN MCLEAN DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA

Riley, Judge.

STATEMENT OF THE CASE

[¶1] Appellant-Defendant, Steven Shoup (Shoup), brings this interlocutory appeal of the trial court's denial of his motion to dismiss based on a claim of improper venue.

[¶2] We affirm.

ISSUE

[¶3] Shoup presents this court with one issue, which we restate as: Whether venue is proper in Hamilton County.

FACTS AND PROCEDURAL HISTORY

[¶4] On February 11, 2022, around 11:40 p.m., Officer Kevin Matt (Officer Matt) of the Fishers Police Department was patrolling in his fully marked, duty issued patrol car traveling eastbound on 96^th Street. Officer Matt observed a vehicle, later determined to be driven by Shoup, that he believed was traveling in excess of the forty-miles-per-hour speed limit. Officer Matt decided to perform a traffic stop of the vehicle. At the intersection of 96^th Street and Hague Road while he was driving directly behind Shoup's vehicle, Officer Matt activated the emergency lights on his patrol car. Initially, Shoup stopped his vehicle in the single-lane access road to the Interstate 69 (I69) on-ramp. Believing that this was an unsafe location to conduct the traffic stop, Officer Matt used the loudspeaker on his patrol vehicle to direct Shoup to pull his vehicle forward. Shoup did so, merging onto the I69 on-ramp. Shoup then pulled over to the shoulder of the on-ramp and parked.

[¶5] Officer Matt approached Shoup's vehicle and announced the purpose of the traffic stop. Additional officers arrived to assist. Shoup is alleged to have then fled in his vehicle from the scene of the traffic stop, resulting in a high-speed chase on I69 that ended near Binford Boulevard when the officers discontinued their pursuit. Subsequent investigation revealed Shoup to be the driver of the vehicle alleged to have fled.

[¶6] On March 4, 2022, the State filed an Information, charging Shoup with Level 6 felony resisting law enforcement. On January 1, 2023, Shoup filed a motion to dismiss, arguing that, pursuant to Indiana Code section 35-34-1-4(a)(10), a "jurisdictional impediment" to the prosecution existed because the offense occurred in Marion County. (Appellee's App. Vol. II, p. 2).

[¶7] On April 24, 2023, the trial court held a hearing on Shoup's motion. At the hearing, Shoup clarified that he sought dismissal of the charge and/or a change of venue to Marion County. In support of this combined motion, Shoup argued that the offense took place entirely in Marion County such that trial could only be venued there. Shoup requested that the trial court take judicial notice of the probable cause affidavit, and video from Officer Matt's patrol vehicle was admitted into evidence. The video showed that Officer Matt activated his patrol vehicle's emergency lights while both he and Shoup were on 96^th Street, as well as the location of Shoup's initial stop on the on-ramp access road and Shoup's final stop on the on-ramp's shoulder.

[¶8] On May 5, 2023, the trial court issued its Order, denying Shoup's motion. The trial court found that Officer Matt had activated his emergency lights on 96^thStreet, which is the dividing line between Marion and Hamilton counties, and that, by statute, both counties have venue for offenses committed on that street. The trial court further concluded that Shoup was in police custody continuously from the moment Officer Matt activated his emergency lights through the entire traffic stop. The trial court concluded that, because Shoup had allegedly fled from a traffic stop that began in Hamilton County, that county was the proper venue for any criminal offense that occurred during the traffic stop.

[¶9] On May 19, 2023, Shoup filed a motion seeking to have the Order denying his motion certified for interlocutory appeal. On June 19, 2024, the trial court granted Shoup's certification motion. On October 27, 2023, we accepted jurisdiction over Shoup's appeal.

[¶10] Shoup now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

[¶11] Article I, section 13 of the Indiana Constitution provides that a criminal defendant has a right to be tried "in the county in which the offense shall have been committed." This right is also protected by statute. See Ind. Code § 35-32-2-1(a) ("Criminal actions shall be tried in the county where the offense was committed, except as otherwise provided by law."). Although a defendant has this constitutionally and statutorily based right, venue is not an element of a criminal offense. Alkhalidi v. State, 753 N.E.2d 625, 628 (Ind. 2001). Therefore, the State must prove venue by a preponderance of the evidence, not beyond a reasonable doubt. Id. A defendant may properly challenge venue through a pre-trial motion. Wurster v. State, 715 N.E.2d 341, 348-49 (Ind. 1999). The defendant bears the burden of establishing his claim for dismissal. See Smith v. State, 993 N.E.2d 1185, 1188 (Ind.Ct.App. 2013), trans. denied. A defendant who appeals the denial of a motion to dismiss appeals from a negative judgment and, therefore, must establish that the trial court's judgment was contrary to law. Id. A judgment is contrary to law only where the evidence is without conflict and leads inescapably to the conclusion that the defendant was entitled to relief. Id.

[¶12] Shoup argues on appeal, as he did below, that the only proper venue is Marion County because all the elements comprising the offense took place there. The State charged Shoup in Hamilton County with Level 6 felony resisting law enforcement. A person who knowingly or intentionally "flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself or herself and ordered the person to stop" commits Class A misdemeanor resisting law enforcement. I.C. § 35-44.1-3-1(a)(3). The offense becomes a Level 6 felony if the person uses a vehicle to commit it. I.C. § 35-44.1-3-1(c)(1)(A).

[¶13] While we agree with Shoup that his flight occurred in Marion County, we cannot agree that all the elements of the offense took place there. Venue is not limited to the place where a defendant acts. Baugh v. State, 801 N.E.2d 629, 631 (Ind. 2004). Indeed, our legislature "may provide for concurrent venue when elements of the crime are committed in more than one county." Id. at 632. As is particularly relevant to the instant case, by statute "[i]f an offense is committed on a public highway . . . that runs on and along a common boundary shared by two (2) or more counties, the trial may be held in any county sharing the common boundary." I.C. § 35-32-2-1(i).

[¶14] Venue for a chain of criminal events may lay in any county in which any of the events occurred. Neff v. State, 915 N.E.2d 1026, 1034 (Ind.Ct.App. 2009), trans. denied. To determine whether the various acts comprising the crime are a single chain of events, we look at whether the acts in one county are integrally related to the crime committed in another county. Sears v. State, 456 N.E.2d 390, 391-92 (Ind. 1983). The acts establishing venue need not be part of the actus reas of the charged offense. For example, in Spoonmore v. State, 411 N.E.2d 146, 147 (Ind.Ct.App. 1980), Spoonmore and his accomplice abducted, tore the clothing of, and beat their victim in Delaware County but drove to Henry County before raping her. Spoonmore was charged with the single offense of rape in Delaware County, and after his conviction, challenged the venue of his trial. Id. This court held that venue in Delaware County was proper because the abduction, abuse, and tearing of the victim's clothing that took place there were part of a "single chain of events" that culminated in the rape in Henry County.¹ Id. This was true even though Spoonmore was not criminally charged for any of the Delaware County acts. Similarly, in Andrews v. State, 529 N.E.2d 360, 364 (Ind.Ct.App. 1988), trans. denied, Andrews was charged in Noble County with two Counts of incest even though he had intercourse with his victim in Whitley County. In affirming his convictions, we relied on evidence that, while in Noble County, Andrews had told his victim that he had a birthday present for her but that she would not receive it until they were alone. Id. The next day, Andrews had his victim accompany him to a location in Whitley County, where he subjected her to sexual intercourse. Id. We held that

1 The Spoonmore court relied upon a subsequently repealed statute, Indiana Code section 35-1.1-2-1(d) (1980), which provided that "[i]f the commission of an offense is commenced in one county and is consummated in another county, trial may be had in either of the counties." This reliance does not lessen Spoonmore's precedential value, as our supreme court held in Davis v. State, 520 N.E.2d 1271, 1273-74 (Ind. 1988), that that provision merely codified a common law venue principle and that deletion of the statutory provision did not necessarily mean legislative disapproval. The Davis court reaffirmed the principle that "[w]here a crime commences in one county and is continued into adjoining counties, then the charge may be filed in any of the involved counties." Id. at 1274.

Andrews's actions in telling his daughter, whom he had a history of molesting, that he planned to give her a birthday present the following day, when they were alone, and in driving her the next day to a secluded locale, where they had intercourse, comprise a single chain of events. The conversation that occurred in Noble County between Andrews and the victim was integrally related to the incest that occurred the next day in Whitley County. Recent cases have shown that when the various acts which comprise the crime are part of the 'single chain of events,' the charge may be brought in the county where the acts began or ended.

Id. (quotation omitted). Thus, venue was established by a discussion that was not part of the actus reas of the rape and which, in and of itself, was not criminal in nature. Id.

[¶15] Here, one of the elements of Level 6 felony resisting law enforcement is that an officer "has, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself or herself and ordered the person to stop[.]" I.C. §§ 35-44.1-3-1(a)(3), (c)(1)(A); see Conley v. State, 57 N.E.3d 836, 838-39 (Ind.Ct.App. 2016) (affirming Conley's resisting law enforcement conviction despite his challenges to the evidence supporting the elements of an officer identifying himself and ordering Conley to stop), trans. denied. Officer Matt activated the emergency lights on his fully marked Fishers Police Department patrol car while he was driving directly behind Shoup on 96^th Street, thus identifying himself as a police officer and ordering Shoup to stop. These acts took place on the dividing line between Hamilton and Marion Counties and were integrally related to the traffic stop from which Shoup allegedly fled. See Spoonmore, 411 N.E.2d at 147; Andrews, 529 N.E.2d at 364. Therefore, we conclude that the alleged offense commenced on 96^th Street but then culminated in Marion County. Because the offense started on 96^thStreet, venue was proper in Hamilton County pursuant to Indiana Code section 35-32-2-1(i).

[¶16] While acknowledging that venue is properly established where some, but not all, of the elements of an offense occur in the venue county, Shoup contends that no element of the offense took place in Hamilton County because his vehicle stopped moving only in Marion County and because Officer Matt's first order to him was to pull forward onto the I69 on-ramp.² Shoup is mistaken. For purposes of resisting law enforcement, an officer's order to stop is not limited to an audible order. Fowler v. State, 878 N.E.2d 889, 894 (Ind.Ct.App. 2008). Rather, an order to stop may also be issued through visual indicators. Id. Whether a proper visual command to stop has been issued is assessed based on the circumstances surrounding the incident and "whether a reasonable person would have known that he or she had been ordered to stop." Id. at 89495. We have held that an officer's activation of his patrol vehicle's emergency lights while his and the subject vehicle are moving is a sufficient order to stop. See Bockler v. State, 908 N.E.2d 342, 347 (Ind.Ct.App. 2009) (concluding that police officer's use of his emergency lights was a visual order for Bockler to stop); Czobakowsky v. State, 566 N.E.2d 87, 89 (Ind.Ct.App. 1991) (observing that "[t]his is not to say that the approach of a police officer, coupled with other circumstances such as operating the police vehicle's signal lamps, would not support the conclusion a visual order to stop had been given"); see also I.C. § 9-21-8-35(a)(3) (providing that when an officer displays his vehicle's emergency lights a person driving another vehicle must stop and remain until the officer's vehicle has passed).

2 Shoup also maintains for the first time in his reply brief that the deputy prosecutor's remark at the hearing that "the alleged crime of resisting law enforcement happened in Marion County" was a concession that venue was only proper in Marion County. (Transcript p. 10). However, Shoup takes this remark out of context, as the deputy prosecutor argued that "the alleged crime of resisting law enforcement happened in Marion County, but it started as an incident . . . in Hamilton County." (Tr. p. 10). The State vigorously contested Shoup's motion to dismiss the charge. We do not interpret the deputy prosecutor's argument to be a concession that venue in Hamilton County was improper.

[¶17] Here, while his and Shoup's vehicles were on 96^th Street, Officer Matt visually identified himself as an officer and ordered Shoup to stop by activating the emergency lights on his patrol vehicle. If we were to follow Shoup's argument to its logical conclusion, a defendant who, while driving, immediately fled from an officer who had activated his emergency lights, never pulled over, and somehow managed to elude the officer could not be charged with resisting law enforcement. Shoup's reliance on R.H. v. State, 916 N.E.2d 260, 262-63 (Ind.Ct.App. 2009), trans. denied, is misplaced, as that case did not involve the traffic stop of a moving vehicle. Because an element of the offense of resisting law enforcement occurred on 96^th Street, which by operation of law was in Hamilton County, Shoup's prosecution may continue there.

CONCLUSION

[¶18] Based on the foregoing, we hold that venue properly lies in Hamilton County for purposes of Shoup's Level 6 felony resisting law enforcement charge.

[¶19] Affirmed.

Brown, J. and Foley, J. concur.