Opinion
24A-CR-816
08-16-2024
Terry S. Cheek, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Jane Ann Noblitt Columbus, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Michelle Hawk Kazmierczak Deputy Attorney General Indianapolis, Indiana
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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Bartholomew Superior Court The Honorable Jonathan L. Rohde, Judge Trial Court Cause No. 03D02-2306-CM-3040
ATTORNEY FOR APPELLANT
Jane Ann Noblitt
Columbus, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Michelle Hawk Kazmierczak
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] Following a bench trial, Terry Cheek was convicted of resisting law enforcement, a Class A misdemeanor. Cheek appeals and claims that: (1) the State failed to present sufficient evidence to support his conviction; and (2) the trial court abused its discretion in sentencing. We disagree and, accordingly, affirm.
Issues
[¶2] Cheek presents two issues, which we restate as:
I. Whether the State presented sufficient evidence to support Cheek's conviction.
II. Whether the trial court abused its discretion in sentencing Cheek.
Facts
[¶3] On June 21, 2023, the Columbus Police Department ("CPD") received a call that Cheek, who had an active warrant for his arrest, was in the area of a homeless shelter in Columbus. CPD Officer Tyler Boswell, who was familiar with Cheek from prior encounters, was on patrol in the area and saw Cheek riding a bicycle across the State Street bridge. Officer Boswell confirmed that the warrant was still valid, activated the red-and-blue flashing lights on his patrol car, and pulled his car directly in front of Cheek. Upon seeing the officer, Cheek turned his bike around and rode in the opposite direction. Officer Boswell got out of his car and yelled at Cheek to stop. Cheek ignored the officer's commands and continued riding in the opposite direction across the bridge.
[¶4] CPD Officer Kyle Hildebrand and Sergeant Clayton Nolting were also on patrol in the area and saw Cheek riding his bicycle. Officer Hildebrand activated his emergency lights, stopped, and got out of his patrol car. He stood directly in the path of Cheek's bicycle and repeatedly ordered him to stop. Cheek rode straight at Officer Hildebrand and stated, "I am not stopping the bike." Tr. Vol. II p. 17. Cheek rode past Officer Hildebrand and into the path of Sergeant Nolting, who had also gotten out of his vehicle. Sergeant Nolting grabbed Cheek by the collar and pulled him from the bicycle. Sergeant Nolting and Cheek then rolled down an embankment near the bridge. Officer Hildebrand went down the embankment and assisted Sergeant Nolting. As the officers placed Cheek in handcuffs, Cheek resisted by kicking and moving his hands. Officer Boswell arrived to assist and restrained Cheek's legs. Eventually, the officers were able to restrain Cheek, who complained of injuries.
The police summoned an ambulance that took Cheek to the hospital, where he was diagnosed with a broken leg.
[¶5] On June 23, 2023, the State charged Cheek with resisting law enforcement, a Class A misdemeanor, by fleeing Officer Hildebrand after being ordered to stop. A bench trial was held on March 6, 2024, at which the three police officers testified on behalf of the State. Cheek testified in his own defense and admitted that he saw the officers and that he did not stop. He claimed, however, that he could not stop because his brakes were not working and that he did not know the officers were actually law enforcement even though they were in full uniform. The trial court rejected Cheek's claims and found him guilty as charged. The trial court asked Cheek if he wished to proceed to sentencing or schedule sentencing for another date. Cheek, by counsel, agreed to be sentenced at that time. The trial court ordered Cheek to serve one year, all executed in the county jail, with credit for fifteen days served. Cheek now appeals.
Discussion and Decision
I. The State presented sufficient evidence to support Cheek's conviction for resisting law enforcement.
[¶6] Cheek first argues that the State failed to present sufficient evidence to support his conviction for resisting law enforcement, a Class A misdemeanor. We disagree.
[¶7] "Claims of insufficient evidence 'warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility.'" Stubbers v. State, 190 N.E.3d 424, 429 (Ind.Ct.App. 2022) (quoting Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020)), trans. denied. On appeal, "[w]e consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence." Id. (citing Powell, 151 N.E.3d at 262). "'We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt,'" and we will affirm a conviction "unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt." Id. (citing Powell, 151 N.E.3d at 262). Thus, it is not necessary that the evidence overcome every reasonable hypothesis of innocence; instead, the evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. (citing Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007); Sutton v. State, 167 N.E.3d 800, 801 (Ind.Ct.App. 2021)).
[¶8] To convict Cheek of resisting law enforcement as charged, the State was required to prove that Cheek knowingly or intentionally fled from Officer Hildebrand, a law enforcement officer with the CPD, after Officer Hildebrand identified himself by visible or audible means and visibly or audibly ordered Cheek to stop. See Ind. Code § 35-44.1-3-1(a)(3).
[¶9] Cheek argues that the State presented insufficient evidence to prove that he knowingly fled from Officer Hildebrand. In support of this argument, he refers to his own testimony, in which he claimed that his brakes did not work well. Cheek also testified that he was not required to stop his bike "just because somebody is standing on the sidewalk ...." Tr. Vol. II p. 21. He further testified that, although he saw that the officers were in uniform, "that doesn't mean they are police officers." Id. at 22.
[¶10] The State, however, presented evidence that Cheek turned his bike around and rode the opposite way when Officer Boswell stopped his car in Cheek's path. Furthermore, Officer Hildebrand testified that he stood directly in the path of Cheek's bicycle on the sidewalk and repeatedly ordered him to stop. Instead of stopping, however, Cheek stated that he was not stopping, rode past Officer Hildebrand, and rode into the path of Sergeant Nolting. After Sergeant Nolting pulled Cheek from the bicycle, Cheek continued to resist the officers, which also supports an inference that Cheek had no intention of stopping despite Officer Hildebrand's repeated commands to stop. Moreover, videos from Officer Hildebrand's body camera and patrol car camera largely corroborate the officers' testimony. We agree with the State that, by his actions and his words, Cheek clearly demonstrated his intent to flee from Officer Hildebrand.
[¶11] It was the trial court's role as the finder of fact to assess the witnesses' credibility and weigh the evidence. The trial court here clearly discredited Cheek's testimony and credited that of the officers. We may not second-guess the trial court's credibility determinations on appeal. Stubbers, 190 N.E.3d at 429) (citing Powell, 151 N.E.3d at 262). We, therefore, conclude that the State presented sufficient evidence to support Cheek's conviction for resisting law enforcement by fleeing from Officer Hildebrand after being ordered to stop.
II. The trial court did not abuse its sentencing discretion.
[¶12] Cheek also contends that the trial court abused its discretion by sentencing him to one year executed, with credit for time served. Cheek argues that the trial court abused its discretion by: (1) proceeding to sentencing immediately after the trial, thereby denying Cheek and his counsel the opportunity to prepare for sentencing; and (2) sentencing Cheek without explaining the reason for the sentence.
[¶13] The trial court did proceed to sentencing immediately following the trial. The trial court, however, specifically asked Cheek if he wished to proceed to sentencing immediately or wished to set a sentencing hearing to be held at a later time. Cheek, by counsel, requested that the sentencing be held "[t]oday, if the court would." Tr. Vol. II p. 23. Because he affirmatively requested that the trial court proceed immediately to sentencing, Cheek cannot now be heard to complain that this constituted error. See Batchelor v. State, 119 N.E.3d 550, 558 (Ind. 2019) (noting that a party cannot take advantage of errors which he himself commits, invites, or induces the trial court to commit).
The Batchelor Court also noted that a "passive lack of objection," standing alone, is insufficient to establish invited error. Id. Instead, there must be "some evidence that the error resulted from the appellant's affirmative actions as apart of deliberate, 'well-informed' trial strategy." Id. Here, Cheek's counsel affirmatively requested an immediate sentencing hearing, which is sufficient to invoke invited error.
[¶14] Regarding Cheek's claim that the trial court abused its discretion by failing to explain its reasons for sentencing Cheek to one year, Cheek cites no authority for his claim that a trial court is required to do so when sentencing a misdemeanor defendant. To the contrary, the statute governing sentencing for Class A misdemeanors simply provides that "[a] person who commits a Class A misdemeanor shall be imprisoned for a fixed term of not more than one (1) year[.]" Ind. Code § 35-50-3-2. Thus, trial courts are not required to articulate aggravating or mitigating circumstances before imposing sentence on a misdemeanor conviction. Stephenson v. State, 53 N.E.3d 557, 561 (Ind.Ct.App. 2016).
[¶15] We have also held that "'abuse of discretion review of a sentence, which concerns a trial court's duty to issue a sentencing statement along with its findings of aggravators and mitigators, has no place in reviewing a misdemeanor sentence.'" Id. (quoting Morris v. State, 985 N.E.2d 364, 367 (Ind.Ct.App. 2013), aff'd in relevant part on reh'g, 985 N.E.2d 364). Thus, we cannot say that the trial court abused its discretion by failing to issue a sentencing statement or otherwise explain the reason for its sentencing decision.
Conclusion
[¶16] The State presented sufficient evidence to support Cheek's conviction for resisting law enforcement, a Class A misdemeanor, by knowingly fleeing Officer Hildebrand after Officer Hildebrand audibly ordered Cheek to stop. Also, the trial court did not abuse its discretion by sentencing Cheek immediately after the bench trial or by failing to explain the reason for its sentencing decision. Accordingly, we affirm the trial court's judgment.
[¶17] Affirmed.
Crone, J., and Bradford, J., concur.