Opinion
22A-JV-1370
07-06-2023
In the Matter of: H.S., Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
Attorneys for Appellant Valerie Kent Boots Matthew D. Anglemeyer Indianapolis, Indiana Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Marion Superior Court The Honorable Ryan Gardner, Judge The Honorable Regina Tidwell, Magistrate Trial Court Cause No. 49D10-2203-JD-1633
Attorneys for Appellant Valerie Kent Boots Matthew D. Anglemeyer Indianapolis, Indiana
Attorneys for Appellee Theodore E. Rokita Attorney General of Indiana Daylon L. Welliver Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
RILEY, JUDGE
STATEMENT OF THE CASE
[¶1] Appellant-Defendant, H.S., appeals his adjudication which, if committed by an adult, would constitute resisting law enforcement, a Level 6 felony, Ind. Code § 35-44.1-3-1(a)(3), (c)(1)(A); dangerous possession of a firearm, a Class A misdemeanor, I.C. § 35-47-10-5(a); and carrying a handgun without a license, a Class A misdemeanor, I.C. § 35-47-2-1(a)(2) (2021).
[¶2] We affirm.
ISSUE
[¶3] H.S. presents this court with one issue on appeal, which we restate as: Whether the State presented sufficient evidence beyond a reasonable doubt to sustain his adjudication for Level 6 felony resisting law enforcement, if committed by an adult.
FACTS AND PROCEDURAL HISTORY
[¶4] On February 28, 2022, Detectives Sergio De Leon Rodriguez (Detective Rodriguez) and Christopher Smilko (Detective Smilko) of the Indianapolis Metropolitan Police Department were patrolling 37th Street and Keystone Avenue in Indianapolis in the same fully marked police vehicle. The detectives observed a red Chrysler van traveling eastbound on 37th Street approaching Keystone Avenue. The driver did not signal "two hundred feet prior" to turning onto Keystone Avenue. (Transcript Vol. II, p. 33).
[¶5] Detective Smilko, who was driving, pulled behind the van, turned on the emergency lights and siren, and conducted a BMV record search of the vehicle's license plate. The search returned a "hit". (Tr. Vol. II, p. 9). Such a result meant that there "could be [] a wanted person in the vehicle" or that "the registered owner could have a warrant, or a stolen plate." (Tr. Vol. II, p. 9). As the detectives pursued the van, they could see the occupants looking back. The van's driver continued to drive southbound "at a slow rate of speed" and eventually pulled into a Phillips 66 Gas Station at 3402 Keystone Avenue. (Tr. Vol. II, p. 13).
[¶6] After the van had rolled to a complete stop on the far west side of the gas station's parking lot, the detectives quickly exited the vehicle with their guns drawn and indicated that a "felony stop" was in progress. (Exhibit 1, at 1:58). Detective Smilko gave loud verbal commands to the driver, who was later identified as H.S., to turn off the ignition, to throw the keys out of the window, and to exit the vehicle. H.S. complied, and the other occupants also began exiting. Detective Smilko ordered the other occupants to remain inside the vehicle and ordered H.S. to put his hands up and walk backwards. H.S. walked back quickly, and Detective Smilko ordered him to stop. Instead of complying, he turned around, lifted his shirt, and claimed he was not carrying any weapons. Detective Smilko issued another command requiring H.S. to face the other way and to get down on his knees. H.S. began talking to Detective Smilko, explaining something, and at that point, Detective Rodriguez ran over, pinned H.S. against the police vehicle, and placed him under arrest. Before the van was towed and after ordering all other occupants to exit, the detectives conducted an inventory search and found a firearm in the van's center console, with its handle closest to the driver's seat.
[¶7] On March 1, 2022, the State filed a delinquency petition, alleging that H.S. had committed offenses, which if committed by an adult, amounted to one Level 6 felony resisting law enforcement with a vehicle and three Class A misdemeanors - dangerous possession of a firearm, carrying a handgun without a license, and resisting law enforcement.
[¶8] A fact-finding hearing was held on April 17, 2022. Detectives Smilko and Rodriguez testified, and footage from their body cameras was entered into evidence. At the close of the hearing, the juvenile court entered a true finding on all Counts, except for the Class A misdemeanor resisting law enforcement. The juvenile court subsequently issued a dispositional decree, adjudicating H.S. as a delinquent for the Level 6 felony resisting law enforcement and the two Class A misdemeanors, dangerous possession of a firearm, and carrying a handgun without a license. The juvenile court placed H.S. "on standard conditions of probation", imposed several special conditions to his probation, and ordered GPS monitoring until further order from the court. (Appellant's App. Vol. II, p. 16).
The record shows that H.S. will be on probation for six months.
[¶9] H.S. now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION
[¶10] H.S. only contends that the State failed to establish that he committed Level 6 felony resisting law enforcement. "In juvenile delinquency adjudication proceedings, the State must prove every element of the offense beyond a reasonable doubt." C.D.H. v. State, 860 N.E.2d 608, 610 (Ind.Ct.App. 2007), trans. denied. In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of the witnesses. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only the evidence favorable to the judgment and the reasonable inferences supporting it. B.T.E. v. State, 108 N.E.3d 322, 326 (Ind. 2018). An adjudication of juvenile delinquency will be affirmed if a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt. Id.
[¶11] Indiana Code section 35-44.1-3-1 provides, in relevant part, that
[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 resisting law enforcement, a Class A misdemeanor, except as provided in subsection (c).
Under subsection (c)(1)(A) of the statute, committing the offense with a vehicle is a Level 6 felony.
[¶12] H.S. argues that "[a] driver who sees red and blue flashing lights approaching in his rearview mirror will anxiously assess who[m] the officer is intending to pull over by waiting to see if the police car goes around his vehicle or falls in closely behind his own vehicle." (Appellant's Br. p. 10). He asserts that once he determined that he was being stopped, he made no evasive turns on Keystone Avenue; instead, he drove "approximately three blocks on a road with no shoulder for under a minute so that he could properly pull over in a gas station parking lot." (Appellant's Br. p. 10). According to H.S., the only valid interpretation of the evidence is that he did not drive a considerable distance to establish flight and was only responding to the order to stop.
[¶13] In the context of resisting law enforcement, "[f]light" is "a knowing attempt to escape law enforcement when the defendant is aware that a law enforcement officer has ordered him to stop or remain in place once there." Wellman v. State, 703 N.E.2d 1061, 1063 (Ind.Ct.App. 1998). Flight is not defined by the "speed, mode, and manner of retreat[.]" Id.
[¶14] Detectives Rodriguez and Smilko testified that after H.S. failed to signal when he turned south on Keystone Avenue, they activated the lights and siren of their marked police vehicle and pulled behind H.S. Detective Smilko observed multiple occupants, which could have reasonably included H.S., "turning around and visually looking" back, which suggested that H.S. knew that he was being followed and was being required to stop and remain in place. (Tr. Vol. II, p. 33). Detective Smilko recognized that Keystone Avenue lacks a shoulder where H.S. could have pulled over; however, he stated that in his experience of conducting "hundreds of traffic stops on Keystone [Avenue]", he has never encountered any issues with individuals not halting "in the lane of traffic" when instructed to do so. (Tr. Vol. II, p. 41).
[¶15] H.S.'s assertions that it was less likely that he knew he was being stopped, but when he became aware that he was being stopped, he immediately pulled into the gas station's parking lot and was not attempting to flee from the detectives, are invitations for us to reweigh the evidence, which we cannot do. See Drane, 867 N.E.2d at 146. The juvenile court's interpretation of the evidence that H.S. was attempting to flee after being commanded to stop remains credible, despite the possibility of alternative explanations from the evidence, as H.S. asserts. See Woodard v. State, 770 N.E.2d 897, 901 (Ind.Ct.App. 2002) (where we affirmed Woodward's resisting-law-enforcement conviction because he did not stop in response to the officer's lights and siren as he was "trying to rationalize why [he] would be pulled over," passed an apartment complex, two gas stations, and a grocery store before stopping at the location he desired to stop), trans. denied. Likewise, the evidence is sufficient to show that H.S. knowingly or intentionally fled from law enforcement using a vehicle.
[¶16] In sum, we conclude that the State presented sufficient evidence beyond a reasonable doubt that H.S. committed what would have been a Level 6 felony resisting law enforcement, if committed by an adult.
CONCLUSION
[¶17] Based on the foregoing, we conclude that the State presented sufficient evidence beyond a reasonable doubt to support H.S.'s Level 6 felony resisting law enforcement adjudication.
[¶18] Affirmed.
[¶19] Altice, C. J. concurs
[¶20] Pyle, J. dissents with separate opinion
Pyle, Judge dissenting with opinion.
[¶21] I respectfully dissent from my colleagues' opinion affirming the True finding of the juvenile court. I do not believe that the State proved beyond a reasonable doubt that H.S. knowingly or intentionally fled from law enforcement.
[¶22] The State had the burden of proving that H.S. knowingly or intentionally fled from "a law enforcement officer after the officer had, 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[.]" IND CODE § 35-44.1-3-1(a)(3). Using my colleagues' definition of "flight," there must be proof beyond a reasonable doubt that H.S. knowingly attempted to escape law enforcement after becoming aware that law enforcement wanted him to stop. Wellman v. State, 703 N.E.2d 1061, 1063 (Ind.Ct.App. 1998). I do not believe the State met its' burden. For example, the body camera footage reveals that it was merely fifty-four seconds from the time that law enforcement had informed dispatch that they had received a "hit" until their car came to a complete stop in the gas station parking lot. As my colleagues ably point out, H.S. drove at a "slow rate of speed." (Tr. Vol. II, p. 13). There was no evidence that H.S. took any steps to evade or avoid being stopped by law enforcement. Yes, the occupants were looking at the officers from inside the vehicle and Detective Smilko testified that people normally stop in their lane of traffic rather than move to a safer place, but the question is whether H.S. was knowingly or intentionally fleeing. There was insufficient evidence to prove beyond a reasonable doubt that H.S. was knowingly or intentionally trying to escape or evade apprehension.
[¶23] For this reason, I would reverse the True finding of the juvenile court concerning resisting law enforcement.