Travis Moore v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of May 03 2012, 8:21 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREN BEDWELL GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Appellate Division
Indianapolis, Indiana GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
TRAVIS MOORE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1109-CR-807
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable James B. Osborn, Judge
Cause No. 49F15-1103-FD-015865
May 3, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
After a bench trial, Travis Moore (“Moore”) was convicted of Theft, as a Class D
felony1; Resisting Law Enforcement, as a Class A misdemeanor2; Criminal Mischief, as a
Class B misdemeanor3; and Disorderly Conduct, as a Class B misdemeanor.4 He now
appeals, raising for our review the single issue of whether there was sufficient evidence to
support his conviction for Resisting Law Enforcement.
We affirm.
Facts and Procedural History
On March 7, 2011, Moore was shopping in the Buckle store at the Castleton Square
Mall in Indianapolis. Megan Camp (“Camp”), an employee at the store, asked Moore if he
wanted to try on several pairs of jeans he was carrying, and admitted him to a dressing room.
Moore spent several minutes in the dressing room without changing clothes, and Camp asked
whether he needed any assistance finding other sizes. Moore agreed, and Camp located other
pairs of jeans for Moore. After some time, Moore purchased a pair of jeans.
After completing his purchase, Moore remained in the store for several minutes while
he browsed through the girl’s clothing section and later moved to the boy’s clothing section.
Throughout this period, Moore fidgeted with something in the back pocket of his pants and
actively avoided contact with store employees. Camp found this behavior suspicious and
1
Ind. Code § 35-43-4-2(a).
2
I.C. § 35-44-3-3(a)(1).
3
I.C. § 35-43-1-2(a)(1).
4
I.C. § 35-45-1-3(a)(2).
2
notified her supervisors, Jessica Pittenger (“Pittenger”), the store manager, and Jarred
Williams (“Williams”), an area manager for several Buckle stores in Indiana. While Camp
went to the back of the store to review Moore’s actions in the store on a surveillance video,
Pittenger and Williams continued to observe Moore as another employee, Jennifer Knight
(“Knight”), offered to assist him in shopping.
Soon after this, Moore left the store. When he did so, a shoplifting sensor alarm
sounded. Pittenger, Williams, and Knight followed Moore into the mall’s common area, told
him that the shoplifting alarm had sounded, and asked to check the bags he was carrying to
see if something he was carrying had caused the alarm to sound. Moore refused and jerked
his bags away from Knight, who had moved to check their contents.
Moore then moved to leave the mall, and Williams called 911 to notify police of a
shoplifting incident. Pittenger, Williams, Knight, and mall security personnel followed
Moore out of the mall and across the mall’s parking lot as Moore hurried toward a nearby
restaurant.
Indianapolis Metropolitan Police Department Officer Ivan Ivanov (“Officer Ivanov”)
had been notified of Williams’s call and intercepted Moore in the restaurant’s parking lot.
Officer Ivanov approached Moore, who refused to stop until Officer Ivanov ran toward him
with a drawn Taser gun. Moore stopped; Officer Ivanov placed him in handcuffs and began
searching Moore’s person and shopping bags. An officer assisting Officer Ivanov found part
of a shoplifting sensor used by Buckle in Moore’s back pants pocket, and Officer Ivanov
found two pairs of Buckle jeans: one that Moore had purchased in a bag from the Castleton
3
Buckle store, and another in a bag from another store. The jeans in the bag from the other
store had a tear in the rear pocket where the Buckle shoplifting sensor had once been, and a
review of Moore’s receipts did not reveal that Moore had purchased that pair of jeans
himself.
Though Moore was initially cooperative with Officer Ivanov, he quickly became
hostile with Officer Ivanov and the Buckle employees, yelling and using harsh language
toward them and the patrons of a nearby restaurant. Nevertheless, after telling Moore to stop
yelling, Officer Ivanov placed Moore in the backseat of his police vehicle because it was cold
outside. Even inside the car, Moore continued to yell at the others. He eventually rolled
down one of the police car’s windows and continued to shout at Officer Ivanov. Officer
Ivanov opened the door, rolled the window up, and closed the door again.
Moore then began to kick the inside of the police car while again yelling at police and
other bystanders. Officer Ivanov again opened the door, this time to remove Moore from the
car and have him sit on the ground to minimize Moore’s ability to flee the scene on foot.
Moore refused to sit, so Officer Ivanov pressed Moore’s hand to assist him downward.
Moore pulled away, and instead lowered himself onto his knees. Soon after this, Moore got
up, then ran toward and sat down on a curb.
To this point, Moore’s hands had been handcuffed behind his back. Once seated,
however, Moore was able to bring his hands from behind his body to the front of his body.
Officer Ivanov recognized this as a sign that Moore would try to escape and instructed Moore
to return his hands to a position behind his back. Moore refused, and Officer Ivanov and a
4
colleague then re-handcuffed Moore’s hands behind his back. Soon afterward, a Marion
County Sheriff’s Office van arrived to transport Moore from the scene.
On March 8, 2011, Moore was charged with Theft, Resisting Law Enforcement,
Criminal Mischief, and Disorderly Conduct. On May 23, 2011, Moore waived a jury trial,
and the trial court set the matter for a bench trial.
On July 11, 2011, a bench trial was conducted, at the end of which the trial court
found Moore guilty of all charges. On August 8, 2011, the trial court entered its judgment of
conviction against Moore for each offense and sentenced him to one year of imprisonment
for Theft, with 355 days suspended, and ten days for each of the other offenses, with all
sentences run concurrently. The court also ordered Moore to serve probation and perform
160 hours of community service.
This appeal ensued.
Discussion and Decision
Moore challenges his conviction for Resisting Law Enforcement, as a Class A
misdemeanor, after a bench trial, contending that there was insufficient evidence to support
the conviction. Our standard of review in such cases is well settled:
When reviewing the sufficiency of the evidence needed to support a criminal
conviction, we neither reweigh evidence nor judge witness credibility. Henley
v. State, 881 N.E.2d 639, 652 (Ind. 2008). “We consider only the evidence
supporting the judgment and any reasonable inferences that can be drawn from
such evidence.” Id. We will affirm if there is substantial evidence of
probative value such that a reasonable trier of fact could have concluded the
defendant was guilty beyond a reasonable doubt. Id.
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
5
To convict Moore of Resisting Law Enforcement as charged, the State was required to
prove beyond a reasonable doubt that Moore knowingly or intentionally forcibly resisted,
obstructed, or interfered with Officer Ivanov while he was lawfully engaged in the execution
of his duties. I.C. § 35-44-3-3(a)(1); App. 20. The adverb, “forcibly,” modifies each of the
three forms of conduct—resisting, obstructing, or interfering—in the statute, and is thus itself
an element of the offense. Spangler v. State, 607 N.E.2d 720, 723-24 (Ind. 1993).
To sustain a conviction for forcible resistance, obstruction, or interference with law
enforcement, it is not sufficient that an individual actively rather than passively resisted the
efforts of law enforcement. Id. As our Supreme Court held in Spangler, “the legislature
intended the term ‘forcible’ to connote some form of violent action toward another.” Id. The
force used need not rise to the level of “mayhem,” however, Graham v. State, 903 N.E.2d
963, 965 (Ind. 2009), and even “modest” force may suffice to sustain a conviction. Id. at
966.
Moore does not contend that he did not use force during the incident on March 7,
2011. Rather, he argues that force must be directed toward police officers to constitute
forcible resistance, obstruction, or interference within the meaning of Section 35-44-3-3(a).
We do not agree. In Guthrie v. State, we sustained the defendant’s conviction for resisting
law enforcement when he “lean[ed] his body back and stiffen[ed] his legs.” 720 N.E.2d 7, 9
(Ind. Ct. App. 1999), trans. denied. In Wellman v. State, the defendant resisted leaving his
home by bracing himself against a door frame and later dropping to his knees, telling the
arresting officer that he would have to drag him to the officer’s car. 703 N.E.2d 1061, 1062
6
(Ind. Ct. App. 1998). In neither of these cases did the defendants use force directly toward
police officers, though they used force to prevent police from arresting them.
The same is true here. Officer Ivanov testified that Moore kicked the inside of his car,
which led him to remove Moore from the car to prevent public property from being damaged.
This impeded Officer Ivanov’s investigation of the 911 call involving Moore’s conduct.
Once out of the car, Moore pulled away from Officer Ivanov before dropping to his knees.
He then ran to a curb and moved his still-restrained hands from behind his back to the front
of his body, an indication that he might attempt to flee, and refused to move his hands from
his front to his back. Taken together, there is thus sufficient evidence from which a fact-
finder could conclude beyond a reasonable doubt that Moore forcibly resisted, obstructed, or
interfered with Officer Ivanov’s lawful execution of his duties as a police officer.
Affirmed.
ROBB, C.J., and MATHIAS, J., concur.
7