Louis Cole v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D), Jul 19 2013, 6:29 am
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: ATTORNEYS FOR APPELLEE:
MATTHEW J. MCGOVERN GREGORY F. ZOELLER
Anderson, Indiana Attorney General of Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
LOUIS COLE, )
)
Appellant-Defendant, )
)
vs. ) No. 22A01-1211-CR-506
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE FLOYD SUPERIOR COURT
The Honorable Maria D. Granger, Judge
Cause No. 22D03-1006-FD-1434
July 19, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
PYLE, Judge
STATEMENT OF THE CASE
Louis Cole (“Cole”) appeals his conviction after a jury trial for resisting law
enforcement, a Class D felony.1
We affirm.
ISSUE
Whether the State presented sufficient evidence to support the conviction.
FACTS
On June 9, 2010, at approximately 6:00 p.m., New Albany Police Officer Kelly
Brown (“Officer Brown”) was patrolling in a marked police car when he saw a juvenile
female riding as a passenger on a motorcycle. The juvenile passenger was not wearing a
helmet, which is a traffic infraction. Officer Brown made a U-turn in order to stop the
motorcycle. As Officer Brown attempted to catch up to the motorcycle, he saw the
motorcyclist, later identified as Cole, turn the motorcycle into a public housing area.
Officer Brown activated his emergency lights to inform Cole that he wanted Cole to stop.
Instead, Cole began to go the wrong way on a one-way street.
Officer Brown continued to chase the motorcycle, and he saw Cole look back at
his car before beginning to travel down the sidewalk. Cole again looked back at Officer
Brown and then guided the motorcycle between the housing area buildings while driving
on the sidewalk.
1
Ind. Code § 35-44-3-3(b)(1) (subsequently repealed and re-codified at Ind. Code § 35-44.1-3-1 by Pub.
L. No. 126-2012, §§ 53-54 (eff. Jul. 1, 2012)).
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Officer Brown was unable to drive his car between the buildings, so he stopped
the car and began to follow on foot. At some point, Officer Brown radioed for assistance
and informed other officers that Cole was wearing an olive green shirt.
As Officer Brown got to the corner of the first building, he saw the female juvenile
passenger walking toward him. The disheveled juvenile identified herself as Cole’s
daughter, and she told Officer Brown that she had jumped off the motorcycle and had
fallen to the ground. She told Officer Brown that Cole had been taking her to see a pig
that was in the area.
Officer Brown then came upon Cole’s wife, Deborah, who identified Cole as the
operator of the motorcycle. She also told Officer Brown that Cole had taken their
daughter on the motorcycle to see a pig that was in the neighborhood.
New Albany Police Officer Matthew Edgell (“Officer Edgell”) pulled into the
housing project and observed Cole running while carrying an olive green t-shirt. When
Cole saw Officer Edgell, he stopped then turned around to walk away. Officer Edgell
ordered Cole to stop, which he did.
New Albany Police Officer Travis Nelson advised Cole of his Miranda rights, and
Officer Brown began to question him. At first, Cole acted as if he did not know what was
happening. However, when Officer Brown mentioned the pig, Cole admitted that he had
taken his daughter on the motorcycle to see the pig.
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On June 10, 2010, Cole was charged with Class D felony resisting law
enforcement and was issued citations for an expired license plate and traveling the wrong
way on a one-way street.
On May 25, 2011, a jury found Cole guilty of resisting law enforcement charge.
The trial court subsequently sentenced Cole to an executed term of 966 days, with 483
days of jail time credit.
Cole now appeals.
DISCUSSION AND DECISION
Cole contends that the State’s evidence was insufficient to support his conviction
for resisting law enforcement. Specifically, he contends that “[t]he only evidence to
support the State’s assertion that Cole disregarded Officer Brown’s emergency lights is
Officer Brown’s testimony that Cole looked back toward his vehicle on two occasions as
Officer Brown followed Cole.” (Cole’s Br. 6). He further contends that “[i]t is pure
conjecture on the State’s part to infer that Cole either saw the lights or knew that the
lights were intended to order him to stop.” Id. He concludes that his conviction may not
rest on such conjecture.
Our standard of review for sufficiency claims is well settled. In reviewing
sufficiency of the evidence claims, this Court does not reweigh the evidence or assess the
credibility of witnesses. Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans.
denied. We consider only the evidence most favorable to the judgment, together with all
reasonable inferences drawn therefrom. Id. at 269-70. The conviction will be affirmed if
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there is substantial evidence of probative value to support the conclusion of the trier of
fact. Id. at 270. Reversal is appropriate “only when reasonable persons would not be
able to form inferences as to each material element of the offense.” Alvies v. State, 905
N.E.2d 57, 61 (Ind. Ct. App. 2009). A conviction may be sustained on the testimony of a
single witness. Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans.
denied.
To convict a person of Class D resisting law enforcement, the State is required to
establish that the person knowingly or intentionally fled in a vehicle from an officer after
the officer had, “by visible or audible means, including operation of siren or emergency
lights, identified himself or herself and ordered the person to stop . . . . Ind. Code § 35-
44-3-3(b)(1). For purposes of the statute “both the police officer’s identification and his
order to stop may be accomplished by acts visible to the defendant.” Cole v. State, 475
N.E.2d 306, 309 (Ind. 1985) (holding that a police officer provided a sufficient visual
order to stop where the officer made a U-turn, followed the defendant and slowed his
police car when defendant stopped his car, and opened his car door and was existing
when defendant fled).
Here, Officer Brown made a U-turn to pursue Cole because of the traffic infraction
that he observed concerning the juvenile passenger on the motorcycle. Officer Brown
activated his emergency lights and watched as Cole turned the wrong way on a one-way
street and operated his motorcycle on the sidewalk. Cole twice looked back at Officer
Brown, and he eventually operated his vehicle on sidewalks between the buildings in the
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housing area. As soon as Cole managed to get out of sight, he presumably caused his
daughter to jump from the motorcycle. Cole then hid the motorcycle and initially tried to
deceive the officers about his operation of the vehicle.
The jury was warranted in inferring from Cole’s actions that Officer Brown’s acts
were visible to Cole and that Cole knew that he had been ordered to stop the motorcycle.
The jury could further infer that Cole was attempting to evade Officer Brown. Under the
circumstances, the State met the requirements set forth by the statute. Accordingly, the
State presented sufficient evidence to support the conviction.
Affirmed.
KIRSCH, J., and VAIDIK, J., conur.
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