Nita Trott-Fluty v. State of Indiana ( 2014 )

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 Jan 27 2014, 9:43 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JARED MICHEL THOMAS, ESQ. GREGORY F. ZOELLER
Evansville, Indiana Attorney General of Indiana
RICHARD C. WEBSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
NITA TROTT-FLUTY, )
)
Appellant-Defendant, )
)
vs. ) No. 82A05-1306-CR-290
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE VANDERBURG CIRCUIT COURT
The Honorable David D. Kiely, Judge
Cause No. 82C01-1207-FD-912
January 27, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Nita Trott-Fluty (“Trott-Fluty”) was convicted after a jury trial of Resisting Law
Enforcement, as a Class D felony;1 Resisting Law Enforcement, as a Class A misdemeanor;2
and Disorderly Conduct, as a Class B misdemeanor.3 She was sentenced to an aggregate
term of eighteen months imprisonment, and now appeals.
We affirm.
Issues
Trott-Fluty presents two issues for our review, which we restate as:
I. Whether the trial court abused its discretion when it did not take into
account at sentencing her medical conditions; and
II. Whether her sentence was inappropriate.4
Facts and Procedural History
On July 17, 2012, Trott-Fluty was in Garvin Park in Evansville. Patrolling the park
that day in full uniform and on a marked motorcycle was Evansville Police Department
Officer Allen Gansman (“Officer Gansman”). Officer Gansman saw Trott-Fluty get in and
out of her car several times before she moved her car, parked it in a no-parking zone at the
1
Ind. Code §§ 35-44.1-3-1(a)(3) & (b)(1)(A).
2
I.C. § 35-44.1-3-1(a)(2).
3
I.C. § 35-45-1-3(a)(1).
4
Trott-Fluty frames these as a single issue—whether her sentence was inappropriate—but her argument
advances both an inappropriateness challenge and a challenge to the trial court’s determination of mitigating
factors.
2
entrance to a greenway in the park, and walked off the greenway path down a steep
embankment.
Trott-Fluty’s conduct, together with the hot temperature that day, made Officer
Gansman worry that Trott-Fluty was in distress. Officer Gansman left his motorcycle and
approached Trott-Fluty to ask if she needed any help; Trott-Fluty responded by saying that
she was there to feed wildlife, but did not appear to have anything with her other than her
purse. Officer Gansman left Trott-Fluty and approached her car to check the plate on the
vehicle against public records to see if there were any alerts concerning Trott-Fluty.
Soon thereafter, Trott-Fluty returned to her car and drove away at a high rate of speed
through the park. Officer Gansman used a laser-based speed detection device, which
measured the car’s speed at twenty-nine miles per hour—fourteen miles per hour faster than
the posted speed limit in the park.
Officer Gansman turned on his motorcycle’s lights and siren and attempted to initiate
a traffic stop. Trott-Fluty continued driving, however, travelling through numerous
intersections and passing numerous parking lots where she could have pulled over safely.
As required by the department’s standard operating procedures, several other police
officers in marked police cars responded to assist Officer Gansman, including Officer Steve
Hicks (“Officer Hicks”). The officers pursued Trott-Fluty, whose driving while fleeing had
become sufficiently erratic that Officer Hicks was concerned for public safety.
Trott-Fluty eventually stopped her car about a mile beyond where Officer Gansman
began his pursuit. Officer Hicks stopped his vehicle in order to block Trott-Fluty from
3
fleeing and exited his vehicle with his service pistol drawn. When he approached Trott-
Fluty’s window, he observed her acting erratically, and she appeared to be yelling something
at him.
Once stopped, Trott-Fluty did not exit the car on her own and continued to hold onto
the steering wheel with “white knuckles.” (Tr. at 82.) Finding the driver’s door locked,
Officer John McQuay (“Officer McQuay”) opened the passenger side of the vehicle and tried
to remove Trott-Fluty’s hand from the steering wheel; she actively resisted, and a struggle
ensued, during which Trott-Fluty continued to scream, yell, and act erratically. Officer
McQuay was, however, able to open the driver’s door so that other officers could assist him.
Once out of the car, Trotty-Fluty continued to struggle with officers to such an extent
that a Taser was used, but she was eventually handcuffed. Trott-Fluty calmed down enough
to be placed in Officer Hicks’s police car for transport; however, Officer Hicks’s car began
to overheat and broke down. After pulling to the side of the road, Officer Hicks, Officer
McQuay, and another officer worked to arrange a transfer of Trott-Fluty from Officer
Hicks’s car to that of Officer McQuay.
As Officer Hicks tried to move Trott-Fluty around his car and toward the other police
vehicle, Trott-Fluty twisted and jerked hard away from Officer Hicks. Officer Hicks was
able to move Trott-Fluty to the other police car only by dragging her toward the car. Upon
reaching the car, Trott-Fluty again stiffened up and resisted being placed in the backseat.
Officer McQuay ordered Trott-Fluty to sit, but she did not comply with this instruction, and it
4
was only when Officer McQuay used a Taser on Trott-Fluty that the officers were able to seat
her in the vehicle.
Trott-Fluty’s struggling did not cease at this point, however. Once placed in Officers
McQuay’s car, she began to scream and flail around again, and the officers determined that a
police wagon would be necessary to transport Trott-Fluty. The officers removed her from the
vehicle and placed her on the ground so she could not easily injure herself or other people.
Eventually, Trott-Fluty was calm enough to be moved into a seated position. At that
point, however, she saw several individuals standing outside a business nearby and began
yelling at those bystanders and then at a passing bicyclist. Officer Hicks twice instructed
Trott-Fluty to stop yelling, and she refused. Eventually, however, Trott-Fluty was picked up
by a police wagon for transport.
On July 19, 2012, Trott-Fluty was charged with Resisting Law Enforcement, as a
Class D felony; Resisting Law Enforcement, as a Class A misdemeanor; and Disorderly
Conduct, as a Class B misdemeanor.
On April 15, 2013, a jury trial was conducted, at the conclusion of which the jury
found Trott-Fluty guilty as charged.
On May 15, 2013, a sentencing hearing was conducted. At its conclusion, the trial
court entered judgments of conviction on all three counts and sentenced Trott-Fluty to
eighteen months imprisonment for Resisting Law Enforcement, as a Class D felony; one year
of imprisonment for Resisting Law Enforcement, as a Class A misdemeanor; and 180 days
5
imprisonment for Disorderly Conduct, as a Class B felony. Each of these were run
concurrent to one another, yielding an aggregate sentence of eighteen months.
This appeal ensued.
Discussion and Decision
Mitigating Factors
Trotty-Fluty challenges both the trial court’s determination of mitigating factors and
the appropriateness of her sentence. We address each issue in turn.
Generally, we review a trial court’s sentencing decision for an abuse of discretion.
Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). An abuse of discretion occurs when
the trial court’s decision is clearly against the logic and effect of the facts and circumstances
before it. Id. A trial court “must enter a statement including reasonably detailed reasons or
circumstances for imposing a particular sentence.” Id. at 491. We will not, however,
reassess the weight the trial court assigned to each factor. Id. (“[t]he relative weight or value
assignable to reasons properly found or those which should have been found is not subject to
review for abuse [of discretion]”). At sentencing, where a trial court has abused its
discretion, we will only reverse and remand for resentencing “if we cannot say with
confidence that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.” Id. at 490. That is, if the trial court
would have reached the same result in fixing a defendant’s sentence with proper
determination of aggravating and mitigating factors, we will not disturb the sentence unless it
is inappropriate under Appellate Rule 7(B) or subject to some other defect.
6
Here, Trott-Fluty acknowledges that the trial court took into account her limited
criminal history as a mitigating factor, but contends that the trial court improperly
disregarded her medical conditions as a mitigating factor in fixing her sentences and did not
take into account the fact that the arresting officers in the case declined to appear at the
sentencing hearing. Our review of the record reveals that there is a single mention in the
presentencing report that Trott-Fluty suffers from anemia and asthma, but there is no
evidence as to the extent of those conditions. While the arresting officers did not appear at
the sentencing hearing, both Officers Hicks and McQuay sent email messages to the
probation office indicating that they believed Trott-Fluty to suffer an emotional or mental
disturbance, and Officer McQuay opined that some term of imprisonment would be
appropriate.
Yet Trott-Fluty did not advance any of this as a basis for leniency during the
sentencing hearing; instead, counsel drew the trial court’s attention only to her limited
criminal history, while Trott-Fluty herself disputed the accuracy of the entire report and
voluntarily left the courtroom. Though she contends that the trial court did not enter specific
findings as to aggravating and mitigating factors at sentencing, the trial court set forth its
reasons—namely, the absence of a significant prior criminal history and the probation
department’s report that Trott-Fluty was a moderate risk to re-offend. And to the extent
Trott-Fluty insists that the trial court should have afforded more weight to her mitigating
factors, that facet of the court’s decision is not subject to appellate review. See Anglemyer,
868 N.E.2d at 491.
7
Under these circumstances, we cannot conclude that the trial court abused its
discretion at sentencing.
Inappropriateness
We turn to Trott-Fluty’s other contention on appeal, that her sentence was
inappropriate under Appellate Rule 7(B).
The authority granted to this Court by Article 7, § 6 of the Indiana Constitution
permitting appellate review and revision of criminal sentences is implemented through
Appellate Rule 7(B), which provides: “The Court may revise a sentence authorized by statute
if, after due consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the offender.” Under
this rule, and as interpreted by case law, appellate courts may revise sentences after due
consideration of the trial court’s decision, if the sentence is found to be inappropriate in light
of the nature of the offense and the character of the offender. Cardwell v. State, 895 N.E.2d
1219, 1222-25 (Ind. 2008); Serino v. State, 798 N.E.2d 852, 856-57 (Ind. 2003). The
principal role of such review is to attempt to leaven the outliers. Cardwell, 895 N.E.2d at
1225.
Here, Trott-Fluty was convicted of Resisting Law Enforcement, as a Class D felony,
which carried a sentencing range of between six months and three years, with an advisory
term of eighteen months imprisonment, I.C. § 35-50-2-7(a); Resisting Law Enforcement, as a
Class A misdemeanor, which carries a maximum term of imprisonment of one year, I.C. §
35-50-3-2; and Disorderly Conduct, as a Class B misdemeanor, which carries a maximum
8
term of imprisonment of 180 days. I.C. § 35-50-3-3. Trott-Fluty was sentenced to the
eighteen-month advisory term for Resisting Law Enforcement, as a Class D felony; the
maximum one-year term for Resisting Law Enforcement, as a Class A misdemeanor; and the
maximum term of 180 days for Disorderly Conduct, as a Class B felony. The three terms
were run concurrent to one another, yielding an aggregate term of imprisonment of eighteen
months.
Trott-Fluty’s conduct resulted in a police chase and two separate struggles with police
officers—once when she stopped her car, and once when Officers Hicks and McQuay tried to
transfer her from Officer Hicks’s squad car to that of Officer McQuay. Police were twice
required to use Taser devices to subdue Trott-Fluty, and ultimately she was still too resistant
to be transported by police car.
The trial court afforded Trott-Fluty some mitigation in the form of a limited criminal
history. Our review of the presentencing investigation report reveals that Trott-Fluty has
previously been convicted of misdemeanor-level Conversion, Resisting Law Enforcement,
Criminal Trespass, and Disorderly Conduct. She also has a history of encounters with law
enforcement, and at the time of her sentencing was facing charges for Resisting Law
Enforcement and Reckless Driving in an unrelated case. And while Trott-Fluty has some
college education, including an associate’s degree, she was not employed at the time of her
sentencing.
9
Having thus reviewed the matter, we conclude under Appellate Rule 7(B) that the trial
court did not impose an inappropriate sentence, and the sentence does not warrant appellate
revision. Accordingly, we decline to disturb the sentence imposed by the trial court.
Conclusion
The trial court did not abuse its discretion in determining mitigating factors at
sentencing. Trott-Fluty’s sentence is not inappropriate.
Affirmed.
FRIEDLANDER, J., and KIRSCH, J., concur.
10