Andrew Albert Graovac v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Jul 15 2013, 6:07 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BRYAN LEE CIYOU GREGORY F. ZOELLER
LORI B. SCHMELTZER Attorney General of Indiana
Ciyou & Dixon, P.C.
Indianapolis, Indiana JOSEPH Y. HO
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANDREW ALBERT GRAOVAC, )
)
Appellant-Defendant, )
)
vs. ) No. 29A02-1208-CR-652
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable J. Richard Campbell, Judge
The Honorable William P. Greenaway, Magistrate
Cause No. 29D04-1106-CM-8600
July 15, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Andrew Albert Graovac (“Graovac”) was convicted after a bench trial of Resisting
Law Enforcement, as a Class A misdemeanor.1 He now appeals his conviction, raising for
our consideration two issues that we consolidate into one, namely, whether there was
sufficient evidence to sustain the conviction.
We affirm.
Facts and Procedural History
In the early morning hours of May 29, 2011, Graovac and a friend were observed
entering a partially-built house in a construction area in Fishers. Police were dispatched to
the scene, including Fishers Police Lieutenant David Steward (“Lieutenant Steward”) and
Officer Anthony David (“Officer David”). Officer David was accompanied by a K9 unit
trained in drug detection and tracking persons.
Lieutenant Steward, Officer David, and another officer were approached by Graovac’s
friend, who said she was looking for a lost dog. Disbelieving the story, Lieutenant Steward
proceeded to the rear of the partially-built home, and Officer David and his K9 unit
approached the still-open front door. Officer David made three announcements of his
presence and intent to permit the K9 unit to enter the building, warning that the dog might
bite during any apprehension. After Officer David made these announcements, Lieutenant
Steward heard crackling noises and tree branches breaking in a wooded area about fifty yards
behind the house.
1
Ind. Code § 35-44-3-3(a)(3) (repealed and recodified, pursuant to Public Law 126-2012 § 54, at I.C. §
35-44.1-3-1 (2012); we use the version of the statute in effect at the time of the instant offense).
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Lieutenant Steward notified Officer David that he thought someone was fleeing the
area. Officer David and his K9 unit exited the house through an open sliding glass door in
the back of the building, and the three approached the wood line. Before entering the wood
line, Officer David “screamed” that he was entering the woods with the K9 unit and that
failure to surrender might result in a dog bite upon apprehension. (Tr. at 33.) The officers
then followed the K9 unit through the woods to a creek, where they found a sneaker and
footprints leading onto a nearby golf course.
After following the K9’s trail through the golf course and into a residential area,
Officer David heard Graovac, whom the K9 unit had just apprehended, say, “I give up.” (Tr.
at 14.) Lieutenant Steward arrived at the scene soon after this and arrested Graovac.
On June 7, 2011, the State charged Graovac with Resisting Law Enforcement, as a
Class A misdemeanor. A bench trial was conducted on May 17, 2012, at the conclusion of
which the trial court took the case under advisement.
On June 7, 2012, the trial court entered its written order finding Graovac guilty as
charged. On July 18, 2012, the court sentenced Graovac to 365 days imprisonment, with the
entirety of the sentence suspended to probation pending payment of court costs.
This appeal ensued.
Discussion and Decision
On appeal, Graovac challenges the sufficiency of the evidence supporting his
conviction for Resisting Law Enforcement, as charged. Our standard of review in such cases
is well settled:
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This court will not reweigh the evidence or assess the credibility of witnesses.
Cox v. State, 774 N.E.2d 1025, 1028 (Ind. Ct. App. 2002). Only the evidence
most favorable to the judgment, together with all reasonable inferences that
can be drawn therefrom will be considered. Id. If a reasonable trier of fact
could have found the defendant guilty based on the probative evidence and
reasonable inferences drawn therefrom, then a conviction will be affirmed. Id.
at 1028-29.
Sargent v. State, 875 N.E.2d 762, 767 (Ind. Ct. App. 2007).
To convict Graovac of Resisting Law Enforcement, as a Class A misdemeanor, as
charged, the State was required to prove beyond a reasonable doubt that Graovac knowingly
or intentionally fled from Officer David after Officer David audibly identified himself and
ordered Graovac to stop. I.C. § 35-44-3-3(a)(3) (2011). Graovac argues that the evidence to
support his conviction is insufficient on two bases. First, he insists that the evidence is
insufficient to prove that he knowingly or intentionally fled from law enforcement; second,
he argues that the evidence is insufficient to prove that he resisted law enforcement because
he willingly surrendered to police.
We find neither argument persuasive.
Turning to Graovac’s first contention, our review of the record reveals that Officer
David testified at trial that when he arrived at the house’s front door, he announced his
presence three times and requested that anyone in the building reveal himself or risk being
bitten by the K9 unit upon a search of the house. Lieutenant Steward testified that this
announcement was loud enough that he could hear it clearly from his position at the rear of
the home, and that it was only after the announcements were made that he heard what
sounded like an individual plunging into the wooded area forty or fifty yards behind the
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house. A reasonable fact-finder could conclude from this that Graovac, who admitted having
been in the house at the time police arrived, heard Officer David’s warnings and decided to
flee rather than identify himself. Thus, we conclude there was sufficient evidence of
Graovac’s knowledge or intent to flee law enforcement.
We turn now to Graovac’s second argument. To the extent Graovac rests his
argument on a version of events whereby he willingly began to surrender to law enforcement
upon first hearing Officer David’s warnings, this version of events was not adopted by the
trial court, and we thus decline Graovac’s invitation to reweigh the evidence. Further,
Graovac’s eventual surrender to Officer David does not mean that his initial flight—which
carried him around three-hundred yards from the house, through a wooded area, part of a golf
course, and into a second residential development—did not amount to resisting law
enforcement. This is particularly so in light of the trial court’s conclusion—for which we
have already held there was sufficient evidence—that Graovac heard Officer David’s
warning.
We therefore conclude that the State introduced sufficient evidence at trial to support
the court’s conclusion that Graovac resisted law enforcement by fleeing from police. We
accordingly confirm Graovac’s conviction.
Affirmed.
NAJAM, J., and BARNES, J., concur.
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