Opinion
No. 73A01-1010-CR-547
09-07-2011
JOSEPH DONTAUS BANKS, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT : GILDA W. CAVINESS Caviness Law Office, LLC Rushville, Indiana ATTORNEYS FOR APPELLEE : GREGORY F. ZOELLER Attorney General of Indiana RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT:
GILDA W. CAVINESS
Caviness Law Office, LLC
Rushville, Indiana
ATTORNEYS FOR APPELLEE:
GREGORY F. ZOELLER
Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
APPEAL FROM THE SHELBY SUPERIOR COURT
The Honorable Jack A. Tandy, Judge
Cause No. 73D01 -0908-FD-106
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN , Judge
STATEMENT OF THE CASE
Joseph D. Banks appeals his convictions following a bench trial for resisting law enforcement as a class D felony; criminal recklessness as a class D felony; resisting law enforcement as a class A misdemeanor; and reckless driving, a class B misdemeanor.
I.C. § 35-42-2-2.
I.C. § 35-44-3-3(a).
I.C. § 9-21-8-52.
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We affirm in part, reverse in part, and remand.
ISSUES
1. Whether there is sufficient evidence to support the convictions for criminal recklessness and class A misdemeanor resisting law enforcement.
2. Whether Banks' convictions for class D felony resisting law enforcement, criminal recklessness and reckless driving constitute double jeopardy.
FACTS
At approximately 12:30 a.m. on August 22, 2009, Shelby County Sheriff's Deputy Justin Parker responded to a dispatch regarding several speeding motorcycles traveling east on I-74. As the motorcyclists approached Deputy Parker's location at the 109 mile-marker, he "pulled out into the fast lane of the eastbound side" in front of the motorcycles and activated his emergency lights and siren. (Tr. 8). He observed five motorcycles traveling at a speed "much higher" than the posted speed limit. (Tr. 9). Deputy Parker also observed Deputy Frank Griffin's vehicle, with its emergency lights activated, behind him.
As Deputy Parker initiated a traffic stop of the five motorcyclists, Deputy Griffin began to stop two other motorcyclists. The two motorcyclists slowed to approximately thirty miles per hour and started to pull over into the emergency but then "took off again." (Tr. 67). Deputy Griffin radioed that the two motorcyclists were "'taking off" and approaching Deputy Parker. (Tr. 13). In his rear-view mirror, Deputy Parker observed the two motorcycles in the "fast lane," approaching "at a high rate of speed[.]" (Tr. 13). The motorcyclists passed Deputy Parker at such a high rate of speed that he "couldn't get a color" of the motorcycles or "plate number." (Tr. 13). He estimated their rate of speed to be approximately 100 miles per hour.
With his emergency lights and siren still activated, Deputy Parker began to pursue the two motorcyclists. At one point, he "reach[ed] a speed of 130 miles per hour . . . ." (Tr. 15). Believing that the motorcyclists would "outrun" him, Deputy Parker requested assistance from the Shelbyville City Police Department. (Tr. 15). Deputy Parker continued his pursuit, never losing visual contact of the motorcycles.
Soon Deputy Parker and the motorcycles approached an area of I-74, where Deputy Dennis Ratekin was "working an Operation Pull Over Blitz . . . ." (Tr. 16). Due to Deputy Ratekin's presence in the median, traffic had begun to slow and back up on I-74, near the 116-mile marker exit.
As the motorcyclists and pursuing officers approached the exit, Deputy Parker observed a "semi" in the right lane and a passenger vehicle in the left lane. (Tr. 17). "[I]t appear[ed] that the drivers of the motorcycles [were] getting nervous at this point" as they began to swerve. (Tr. 17). One of the motorcyclists exited the interstate via the exit ramp. The other, subsequently identified as Banks, crossed the median and the westbound lanes of I-74. While trying to evade Deputy Parker, Banks lost control of his motorcycle and lay his motorcycle down on the shoulder of the interstate.
As Banks tried to get back on the motorcycle, Deputy Parker stopped in front of him, exited his vehicle, and yelled at him to stop. Deputy Parker then had to "grab him and take him to the ground to keep him from getting back on the motorcycle." (Tr. 22). Deputy Parker ordered Banks to give him "his hands, his arms" in order to handcuff him. (Tr. 23). Banks, however, refused and kept his arms under his body, lying on top of them. After ordering Banks to give them his hands several times, Deputies Parker and Griffin pried Banks' arms out from under his body, allowing Deputy Ratekin to handcuff him.
A pat down of Banks revealed a handgun "tied on his left waistband." (Tr. 25). The gun was "tied through the trigger mechanism around the gun, no holster or anything, just the open gun with a string tied through the trigger" guard. (Tr. 25). The gun had a magazine clip in it, but the chamber did not contain a bullet. Banks had a permit for the gun.
On August 24, 2009, the State charged Banks with Count 1, resisting law enforcement as a class D felony; Count 2, criminal recklessness as a class D felony; Count 3, resisting law enforcement as a class A misdemeanor; and Count 4, reckless driving as a class B misdemeanor. The trial court conducted a bench trial on August 20, 2010, after which the trial court found Banks guilty on all charges. Following a sentencing hearing on September 17, 2010, the trial court sentenced Banks to concurrent sentences of two years, with six months executed, on Count 1; two years, with six months executed on Count 2; one year, with six months executed on Count 3; and six months on Count 4.
DECISION
1. Sufficiency of the Evidence
Banks asserts that the evidence is insufficient to support his convictions for resisting law enforcement as a class A misdemeanor and criminal recklessness.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder's role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court's ruling. Appellate courts affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations and citations omitted).
a. Resisting law enforcement
Banks argues that the evidence was insufficient to establish that he forcibly resisted the deputies' attempts to handcuff him. Indiana Code section 35-44-3-3(a)(1) provides that a person who knowingly or intentionally "forcibly resists, obstructs, or interferes with a law enforcement officer . . . while the officer is lawfully engaged in the execution of the officer's duties" commits resisting law enforcement as a class A misdemeanor.
"'Forcibly' is a required element" of resisting law enforcement. Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). "Forcibly resists" means to use "strong, powerful, violent means" to evade a law enforcement official's rightful exercise of his or her duties. Id. A defendant must do more than merely stand his ground to satisfy the requirement of force. Id. at 724. Rather, the evidence must establish that "strength, power, or violence" was directed toward a law enforcement official or there was a "movement or threatening gesture made in the direction of the official." Id.
The force involved, however, "need not rise to the level of mayhem." Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009). While "refusing to present one's arms for cuffing" does not constitute forcible resistance, merely "'stiffening' of one's arms when an officer grabs hold to position them for cuffing would suffice[.]" Id. at 966.
Banks maintains that he only refused to pull his hands out from underneath his body to be handcuffed. He also seems to argue that the manner in which Deputy Parker forced him to the ground prevented him from presenting his arms for cuffing. We find the facts in this case similar to that in Lopez v. State, 926 N.E.2d 1090 (Ind. Ct. App. 2010), trans. denied.
In Lopez, officers "'took [Lopez] to the ground and attempted to put his hands behind his back . . . ." 926 N.E.2d at 1091 (internal citation omitted). Lopez, however, "was lying on his hands and would not put them behind his back," which forced the officers to struggle to place Lopez's hands behind his back. Id. In deciding whether the evidence was sufficient to prove that Lopez acted with the requisite force to sustain his conviction for resisting law enforcement, this court determined that "[i]f the officers were unable to pull his arms out from under him, it is reasonable to infer that he was forcibly resisting their efforts rather than remaining entirely passive." Id. at 1094.
Here, Deputies Parker and Griffin testified that after Deputy Parker forced Banks to the ground, Banks refused to present his arms for cuffing despite repeated commands to do so. Moreover, Deputy Parker testified that they had to "pry [Banks'] arms out from underneath of his body . . . ." (Tr. 23). Deputy Griffin described having to "pull[] on" Banks' arms. (Tr. 75).
We find that the State presented sufficient evidence from which the trial court could infer that Banks forcibly resisted the officers. Banks is asking this Court to reweigh the evidence, which we will not do.
b. Criminal recklessness
Banks also argues that the evidence was insufficient to establish that he committed criminal recklessness with a deadly weapon. Indiana Code section 35-42-2-2(c)(2) provides that a person who recklessly, knowingly, or intentionally "performs an act that creates a substantial risk of bodily injury to another person" while "armed with a deadly weapon," commits criminal recklessness as a class D felony. A "deadly weapon" is defined as a loaded or unloaded firearm. I.C. § 35-41-1-8(a)(1).
In this case, the State charged that Banks committed criminal recklessness by "run[ning] from [l]aw [e]nforcement at a high rate of speed, while armed with a deadly weapon, to-wit: a .40 cal handgun . . . ." (App. 12). Thus, the State was required to prove that Banks recklessly, knowingly, or intentionally evaded pursuing officers at a high rate of speed, thereby creating a substantial risk of bodily injury to another, while armed with a deadly weapon.
The record shows that Banks fled officers at speeds exceeding 100 miles per hour for several miles along an interstate at night. The record further shows that there was traffic on the interstate during the chase, including several motorcycles, "[c]ars, trucks, [and] semis"; and that Banks operated his motorcycle erratically, swerving before crossing the median and westbound lanes of I-74. (Tr. 72). Furthermore, Banks does not dispute that he carried a handgun while he performed these acts. We find that the State presented sufficient evidence to support Banks' conviction for criminal recklessness as a class D felony. Cf. Whitaker v. State, 778 N.E.2d 423, 426 (Ind. Ct. App. 2002) (finding that some "gross deviations" from the traffic code, such as driving at excessive speeds "or intentionally crossing the centerline without a legitimate reason for doing so" support a reckless homicide conviction), trans. denied; Taylor v. State, 457 N.E.2d 594, 598 (Ind. Ct. App. 1983) (finding that "driving forty miles per hour in excess of the speed limit is unreasonable and reckless").
2. Double Jeopardy
Banks next asserts that his convictions for resisting law enforcement as a class D felony, criminal recklessness, and reckless driving violate Indiana's prohibition against double jeopardy. Specifically, he contends that "[f]or his single transgression of driving his motorcycle at a high rate of speed while being pursued by police, [he] was convicted of three separate criminal offenses." Banks' Br. at 12.
Pursuant to Article 1, Section 14 of the Indiana Constitution, "[n]o person shall be put in jeopardy twice for the same offense."
[T]wo offenses are the "same offense" in violation of the Indiana Double Jeopardy Clause if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.Lee v. State, 892 N.E.2d 1231, 1233 (Ind. 2008) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)). Here, Banks argues that his convictions violate the "actual evidence" test.
Under the "actual evidence" test,
the actual evidence presented at trial is examined to determine whether each challenged offense was established by separate and distinct facts. To show that two challenged offenses constitute the "same offense" in a claim of double jeopardy, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.Id. at 1234. "'The Indiana Double Jeopardy Clause is not violated when evidentiary facts establishing the essential elements of one offense also establish only one or even several, but not all, of the essential elements of a second offense.'" Lee, 892 N.E.2d at 1234 (quoting Spivey v. State, 717 N.E.2d 831, 833 (Ind. 2002)).
Application of this test requires the court to "identify the essential elements of each of the challenged crimes and to evaluate the evidence from the jury's perspective . . . ." In determining the facts used by the fact-finder to establish the elements of each offense, it is appropriate to consider the charging information, jury instructions, and arguments of counsel.Id. (internal citations omitted).
Again, the State charged Banks with, and the trial court convicted him of, resisting law enforcement as a class D felony, criminal recklessness, and reckless driving. For the resisting law enforcement conviction, the State was required to establish that Banks (1) knowingly or intentionally (2) used a vehicle (3) to flee from a law enforcement officer (4) after the officer, by visible means, "including operation of the law enforcement officer's siren or emergency lights, identified himself . . . and ordered [Banks] to stop[.]" See I.C. § 35-44-3-3(b)(1)(A). Here, the State specifically charged Banks with fleeing from Deputy Parker.
For the criminal recklessness conviction, the State was required to prove that Banks (1) recklessly, knowingly, or intentionally (2) performed an act that created a substantial risk of bodily injury to another person, (3) while armed with a deadly weapon. See I.C. § 35-42-2-2(c)(2)(A). Specifically, the State charged that Banks "r[a]n from [l]aw [e]nforcement at a high rate of speed," thereby creating a substantial risk of bodily injury to other motorists, while armed with a handgun. (App. 12).
The evidence presented at trial shows that Deputy Parker activated his marked vehicle's lights and sirens in an effort to pull over Banks. Banks, however, refused to stop. The evidence also shows that both before and after Deputy Parker began his pursuit, Banks traveled at a high rate of speed on the interstate. Deputy Griffin testified that when he first observed the group of motorcyclists, he estimated their speed to be approximately 125 miles per hour. He further testified that when Banks "pull[ed] out on [him]" after initially slowing down, he estimated Banks' speed to be at least 125 miles per hour. (Tr. 69). During this entire time, Banks possessed a handgun.
These facts can properly support Banks' convictions for class D felony resisting law enforcement and criminal recklessness. The resisting law enforcement conviction is supported by Banks fleeing Deputy Parker despite Deputy Parker's signals to stop. The criminal recklessness is supported by Banks traveling several miles at excessive speeds while in possession of a handgun. We therefore find no violation of Indiana's prohibition against double jeopardy as to these convictions.
As to Banks' conviction for reckless driving, the State charged, and was required to establish, that Banks (1) drove at "such an unreasonably high rate of speed . . . under the circumstances," (2) endangering the safety or the property of others or (3) blocking the proper flow of traffic. See I.C. § 9-21-8-52(a)(1). Again, the State charged that Banks committed criminal recklessness by "run[ning] from [l]aw [e]nforcement at a high rate of speed . . . ." (App. 12).
It is evident that the State relied upon the same facts, namely, Banks' excessive speed while traveling on I-74, in charging Banks with criminal recklessness and reckless driving. Given the charging information and the evidence presented at trial, we find that there is a "reasonable possibility that the evidentiary facts used by the fact-finder" to establish criminal recklessness may also have been used to establish reckless driving. See Lee, 829 N.E.2d at 1234. Therefore, Banks' convictions for both offenses cannot stand. Accordingly, we remand with directions to vacate Banks' conviction for reckless driving.
Affirmed in part, reversed in part, and remanded. RILEY, J., and BARNES, J., concur.