Mark A. Conley v. State of Indiana

FILED
Jul 22 2016, 8:37 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Gregory F. Zoeller
Brian A. Karle Attorney General of Indiana
Ball Eggleston, PC
Lafayette, Indiana Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Mark A. Conley, July 22, 2016
Appellant-Defendant, Court of Appeals Case No.
79A02-1512-CR-2348
v. Appeal from the Tippecanoe
Superior Court
State of Indiana, The Honorable Daniel J. Moore,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
79D05-1506-CM-600
Najam, Judge.
Statement of the Case
[1] Mark A. Conley appeals his conviction for resisting law enforcement, as a Class
A misdemeanor, following a jury trial. Conley presents a single issue for our
Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016 Page 1 of 7
review, namely, whether the State presented sufficient evidence to support his
conviction. We affirm.
Facts and Procedural History
[2] On June 24, 2015, Conley and Cameron Burger went to a Walmart store in
Lafayette to shoplift various items. Walmart asset protection officers Shaun
Parkins and Zachary Miller observed that Conley was wearing what appeared
to be an empty backpack. Accordingly, Parkins and Miller became suspicious
and proceeded to follow Conley and Burger around the store. Parkins and
Miller watched as Conley and Burger removed merchandise from the store
shelves, put them into Conley’s backpack, and proceeded past the cashiers
without paying for any of the items. As Conley and Burger moved towards the
exits, Parkins, Miller, and a third employee confronted the two men, who
proceeded to run out of the store.
[3] Miller had already contacted the Lafayette Police Department to report the
suspected shoplifting in progress. And when Conley ran out of the store,
Officers Kurt Sinks and Amanda Deckard, both wearing full police uniforms
and each driving a marked police car, saw Conley sprint across the parking lot.
Officer Sinks drove after Conley and drove into Conley’s path. When Conley
was approximately ten feet away from his police car, Officer Sinks held up his
hand in Conley’s direction in a gesture to get him to stop running. Officer
Sinks and Conley made eye contact, but Conley darted behind the police car
and discarded the backpack he had been wearing. Conley continued running to
a nearby hotel parking lot, where Officer Sinks and Officer Deckard ultimately
Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016 Page 2 of 7
apprehended him. A subsequent search of Conley’s backpack revealed items he
and Burger had stolen from Walmart.
[4] The State charged Conley with resisting law enforcement, as a Class A
misdemeanor, and theft, as a Class A misdemeanor. A jury found Conley
guilty as charged, and the trial court entered judgment and sentence
accordingly. This appeal ensued.
Discussion and Decision
[5] Conley contends that the State presented insufficient evidence to support his
resisting law enforcement conviction. In reviewing a sufficiency of the evidence
claim, we do not reweigh the evidence or assess the credibility of the witnesses.
Sharp v. State, 42 N.E.3d 512, 516 (Ind. 2015). Rather, we look to the evidence
and reasonable inferences drawn therefrom that support the verdict, and we will
affirm the convictions if there is probative evidence from which a reasonable
jury could have found the defendant guilty beyond a reasonable doubt. Id.
[6] To prove resisting law enforcement, the State had to show that Conley
knowingly or intentionally fled from a law enforcement officer after the officer
had, by visible or audible means, identified himself and ordered him to stop.
Ind. Code § 35-44.1-3-1 (2015). Here, Conley maintains that the State failed to
prove either that Officer Sinks identified himself as a police officer or that he
had ordered him to stop by visible or audible means. We address each element
in turn.
Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016 Page 3 of 7
Identification as Police Officer
[7] This court has held that, to sustain a resisting law enforcement conviction, the
evidence must show that the person being arrested had to, at least, “have reason
to know” that the person he was dealing with is an officer. Stack v. State, 534
N.E.2d 253, 255 (Ind. Ct. App. 1989). And we have held that a police officer
wearing a full uniform and driving a marked police car is sufficient to meet this
standard. See, e.g., Wellman v. State, 703 N.E.2d 1061, 1063 (Ind. Ct. App.
1998). Still, Conley contends that, while Officer Sinks was driving a marked
police car and wearing a police uniform, “there was no evidence . . . that
Conley had an opportunity to view a marking on the side or back of the vehicle
as he ran past in the opposite direction.” Appellant’s Br. at 4-5. But Conley
ignores Officer Sinks’ testimony that Conley was approximately ten feet away
from Officer Sinks’ marked police car when Conley made eye contact with
Officer Sinks and ran behind the car. We hold that the evidence and reasonable
inferences therefrom support a determination that Conley had reason to know
that Officer Sinks was a police officer.
Order to Stop
[8] Conley next contends that Officer Sinks “failed to issue a proper order to stop”
when Officer Sinks merely put his hand up in Conley’s direction without any
other visual or audible indicator. Appellant’s Br. at 5.
A police officer’s order to stop need not be limited to an audible
order to stop. The order to stop may be given through visual
indicators. Evidence of a proper visual order to stop is based on
the circumstances surrounding the incident and whether a
Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016 Page 4 of 7
reasonable person would have known that he or she had been
ordered to stop.
Vanzyll v. State, 978 N.E.2d 511, 516 (Ind. Ct. App. 2012) (quoting Fowler v.
State, 878 N.E.2d 889, 895 (Ind. Ct. App. 2008)).
[9] In support of his contention on appeal, Conley cites to Czobakowsky v. State, 566
N.E.2d 87 (Ind. Ct. App. 1991). In that case, a police officer in full uniform
and driving a marked police car investigating a disturbance drove up to a group
of five men on a street in Indianapolis. As the officer approached the men in
his police car, the men dispersed. The officer exited his car and apprehended
the defendant on foot. The defendant was charged with resisting law
enforcement and convicted on that count. On appeal, we held as follows:
The evidence does not support the conclusion Officer Myers
visually ordered Czobakowsky to stop. It is unreasonable to
conclude that the mere approach of an uniformed officer
constitutes an order to stop whether the officer, in his patrol car,
approaches a group of people in the street or, while on foot,
approaches a group of people on the sidewalk, in the street, in a
store or in a restaurant. To hold otherwise is to hold that
anytime a person observes a police officer approaching the
person must either stop or remain in place or risk being guilty of
resisting law enforcement.
Id. at 89. However, in Czobakowsky, we noted further that “[t]his is not to say
that the approach of a police officer, coupled with other circumstances such as
operating the police vehicle’s signal lamps, would not support the conclusion a
visual order to stop had been given.” Id.
Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016 Page 5 of 7
[10] In the instant case, Officer Sinks testified that, as Conley ran out of the
Walmart and into the parking lot after having committed theft, he: passed
directly in front of Officer Deckard’s marked police car; made eye contact with
Officer Sinks, who was wearing his full uniform and driving a marked police
car, as Officer Sinks was holding up his hand in a gesture attempting to get
Conley to stop while Conley was approximately ten feet away; and dropped his
backpack immediately behind Officer Sinks’ police car as he ran past it. Officer
Sinks described the encounter as follows:
Q: Can you describe, where was your hand in relation to the top
of the window in your vehicle? I guess would the defendant have
been able to see your hand standing ten feet away?
A: Yeah, absolutely. I even had it up high if I’m — if this is the
passenger seat of my car and you know my window would be
about here, my hand would have been square in the middle of the
window.
Q: And then what did he do after you made that hand gesture to
him?
A: Continued running around the rear of my squad car.
Tr. at 153. This evidence demonstrates that Officer Sinks did, by visible means,
order Conley to stop fleeing. Under these facts and circumstances, we hold that
a reasonable person would have interpreted Officer Sinks’ hand gesture as a
visual command to stop. And Officer Sinks’ testimony supports a reasonable
inference that Conley saw that gesture but proceeded to run from Officer Sinks.
Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016 Page 6 of 7
The State presented sufficient evidence to support Conley’s resisting law
enforcement conviction.
[11] Affirmed.
Robb, J., and Crone, J., concur.
Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016 Page 7 of 7