Corey Weaver v. State of Indiana

FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any Jun 18 2012, 9:44 am
court except for the purpose of establishing
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DEBORAH MARKISOHN GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
MONIKA PREKOPA TALBOT
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
COREY WEAVER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1111-CR-612
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Marc T. Rothenberg, Judge
The Honorable Anne Flannelly, Master Commissioner
Cause No. 49F09-1007-FD-52391
June 18, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Following a jury trial, Appellant-Defendant Corey Weaver appeals following his
convictions for two counts of Class A misdemeanor Resisting Law Enforcement.1 Upon
appeal, Weaver claims that his dual convictions are improper and that the trial court
abused its discretion in admitting certain evidence. We affirm in part, reverse in part,
and remand.
FACTS AND PROCEDURAL HISTORY
On July 3, 2010, at approximately 10:46 p.m., Indianapolis Metropolitan Police
Officer Grady Copeland was dispatched to a residence in the Haughville neighborhood,
where there was a report of a man of a particular description in possession of a gun.
Officer Copeland was in full police uniform and driving a fully marked police car. Upon
arriving, Officer Copeland saw the person described by dispatch, whom he subsequently
identified to be Weaver, along with two other individuals. Officer Copeland
immediately exited his car and ordered Weaver multiple times to stop and show his
hands. Weaver did not comply. Officer Copeland subsequently saw another individual
point at Weaver and indicate he had a gun, which caused Officer Copeland to point his
gun at Weaver and order him to stop, show his hands, and lower himself to the ground.
Weaver, who was on the phone at the time, confirmed that he had a gun, and said it was
“right here,” reaching toward his shorts pocket with his hand. Tr. p. 63. Weaver
claimed that he was on the phone with 911. Officer Copeland repeatedly ordered
Weaver to hang up his phone and threatened to shoot him if he reached for his gun.
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Ind. Code § 35-44-3-3 (2010).
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Other officers began to arrive, including Indianapolis Metropolitan Police Officer
Chad Pryce. Weaver began walking backwards, then stopped and turned to walk away.
Officers Copeland and Pryce approached Weaver and grabbed his arms in an attempt to
take him to the ground. Officer Copeland grabbed Weaver’s left arm and Officer Pryce,
who was holding a taser, grabbed Weaver’s right arm. Weaver tensed up and tried to
pull himself out from Officer Copeland’s grasp, pulling Officer Copeland into his body.
After further efforts, and with the assistance of another officer, Officers Copeland and
Pryce succeeded in placing Weaver on the ground, at which point Weaver put his left
hand underneath his body and refused to present it for handcuffing. Officer Copeland
repeatedly told Weaver to place his hand behind his back and succeeded in forcing
Weaver’s hands into handcuffs with help from other officers. At that point, Officer
Copeland recovered the gun from Weaver’s front pocket and arrested Weaver.2
On July 6, 2010, the State charged Weaver with Class D felony criminal
recklessness (Count 1), Class D felony pointing a firearm (Count 2), and two counts of
Class A misdemeanor resisting law enforcement (Counts 3 and 4). Count 3 alleged that
Weaver resisted Officer Pryce; Count 4 alleged that Weaver resisted Officer Copeland.
On October 19, 2011, the State moved to dismiss Counts 1 and 2 and to rename Counts
3 and 4 as amended Counts 1 and 2. The trial court granted the motions.
At trial, defense counsel sought to introduce the recording of Weaver’s 911 call in
order to show Weaver’s state of mind. The trial court excluded this evidence.
Following trial, the jury found Weaver guilty of amended Counts 1 and 2. The trial
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Weaver introduced his gun permit as an exhibit at trial.
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court sentenced Weaver to concurrent sentences of 365 days in the Marion County Jail,
with 351 suspended, 180 to probation on each. This appeal follows.
DISCUSSION AND DECISION
I. Dual Convictions
Upon appeal, Weaver challenges his convictions for both Counts I and II.
Weaver points to Armistead v. State, 549 N.E.2d 400, 401 (Ind. Ct. App. 1990), in which
this court observed that a defendant cannot be held liable for more than one count of
resisting law enforcement, regardless of the number of officers involved, if the charges
stem from a single event. As the Armistead court observed, the offense of resisting law
enforcement is a crime against public administration, specifically the State of Indiana
and law enforcement authority, rather than any particular person. Id. (interpreting Ind.
Code § 35-44-3-3). “It is the act of resisting duly constituted authority which the statute
prohibits, not resisting individual representatives of that authority.” Id.In Armistead, the defendant, who had approached officers who were questioning
his brother, backed away from an officer, yelled obscenities at him, and assumed a
pugilistic stance. Id. When the officer indicated he needed to talk to the defendant, he
remained confrontational and appeared prepared to flee. Id. A second officer told the
defendant that he would be arrested if he did not calm down, causing the defendant to
back into a chain link fence and continue to yell. Id. This second officer told the
defendant he was under arrest and ordered him to turn around, which the defendant
would not do, so the second officer tried to turn him around. Id. At this point the
defendant hit a third officer in the nose, causing a struggle in which all three officers
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were injured. Id. The defendant was convicted of Class D felony resisting law
enforcement with respect to the third officer and Class A misdemeanor resisting law
enforcement with respect to the first and second officers. Id. This court reversed,
concluding that the defendant had received three convictions based upon a “single affray
with the police.” Id. at 402.
The rule in Armistead has been frequently cited. In Vest v. State, 930 N.E.2d
1221, 1227 (Ind. Ct. App. 2010), reh’g denied, trans. denied, this court observed, “[T]he
general rule is that in a single, continuous episode of resisting law enforcement, ‘only
one offense is committed regardless of the number of officers involved’” (quoting
Touchstone v. State, 618 N.E.2d 48, 49 (Ind. Ct. App. 1993)). As the Vest court
acknowledged, there are exceptions to this rule, specifically when (1) the defendant
commits more than one of the acts enumerated under section 35-44-3-3, or (2) when
more than one officer sustains physical injury. Id. (citing Williams v. State, 755 N.E.2d
1183, 1186 (Ind. Ct. App. 2001) (multiple enumerated acts) and Whaley v. State, 843
N.E.2d 1, 14-15 (Ind. Ct. App. 2006) (multiple physical injuries)).
Weaver argues that, like in Armistead, he similarly had a “single affray” with the
police. The State responds by arguing that Weaver’s acts of pulling away from Officer
Copeland and refusing to present his hand for handcuffing after he was on the ground
constitute separate incidents. According to the State, these incidents were separated by
the officers’ acts of wrestling Weaver to the ground. Had any significant span of time or
distance occurred between Weaver’s pulling away and his active refusal to present his
hands for cuffing, the State’s argument might be more persuasive. But there was no
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interruption in Weaver’s confrontation with the police. The confrontation was confined
to a single location, and it was short, lasting two minutes at most from the time Officer
Copeland arrived on the scene (Tr. 80) and one minute, at most, from the time Officer
Pryce arrived. (Tr. 110) Given the lack of any apparent interruption in the
confrontation, together with the short time frame and confined space in which it
occurred, we must conclude that a single incident occurred such that only one conviction
may be sustained.
Significantly, there is no allegation that Weaver committed separate enumerated
acts under the statute or that the officers were separately injured. It is further telling that
the only stated basis for the State’s separate charges was the involvement of two separate
officers, which the State concedes does not serve as a valid basis for multiple
convictions. State’s Br. p. 8. (“[T]he number of police officers involved in a resisting
incident is irrelevant.”). Based upon Armistead and its progeny, we must conclude that
Weaver was erroneously convicted of two separate counts of resisting law enforcement.
See Touchstone, 618 N.E.2d at 49 (permitting single conviction where defendant
forcibly resisted one officer, requiring three officers to subdue and transport him to
police station). Accordingly, we reverse and remand with instructions to vacate one of
those convictions and its accompanying sentence.
II. Evidence
Weaver additionally challenges the exclusion from evidence of a tape recording
of his phone call to 911. Weaver’s call to 911 lasted only until he hung up his phone as
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directed by police. According to Weaver, this tape recording was relevant to show his
state of mind at the time of the resisting law enforcement incident.
The admission of evidence is left to the sound discretion of the trial court, and
this court will not reverse that decision absent an abuse of discretion. Weis v. State, 825
N.E.2d 896, 900 (Ind. Ct. App. 2005). An abuse of discretion occurs when the trial
court’s decision is against the logic and effect of the facts and circumstances before it.
Id.In excluding the 911 call from evidence, the trial court found that it was
incomplete and inaccurate. Apparently, Weaver’s was not the only call to 911. Another
longer call depicted a more extensive interaction between Weaver and the police. But
this longer call contained other prejudicial statements, and the State sought only to admit
it in the event that Weaver’s call was admitted.
The trial court was within its discretion to exclude Weaver’s 911 call.
Significantly, the call was not demonstrably probative of his state of mind; it terminated
before Weaver committed the charged acts of resisting law enforcement. In addition, the
call, coming from Weaver’s phone, was from Weaver’s perspective only, with the police
involvement merely background noise. In excluding Weaver’s call, the trial court
considered the longer 911 call detailing more extensive interaction between Weaver and
the police. Given the court’s evaluation of both recordings, it was entitled to conclude
that Weaver’s call was not a full portrayal of the circumstances and might unfairly
prejudice the State’s case. We find no abuse of discretion. See Ind. Evid. R. 403
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(permitting trial court to exclude evidence which is substantially more prejudicial than
probative).
Further, any error in the exclusion of the recording is harmless. The recording
tends to show Weaver’s calm demeanor while speaking to the 911 operator and in the
initial moments after Officer Copeland’s arrival on the scene. While Weaver claims it
shows his state of mind as it relates to his resisting law enforcement, the actual acts of
resistance do not occur during the duration of the recording. To the extent the recording
establishes Weaver’s state of mind prior to the resisting acts, it says nothing about his
state of mind at the time he resisted. Weaver’s substantial rights were not affected by
the exclusion of his 911 call. See Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995)
(“Errors in the admission or exclusion of evidence are to be disregarded as harmless
error unless they affect the substantial rights of a party.”).
The judgment of the trial court is affirmed in part, reversed in part, and remanded.
VAIDIK, J., and CRONE, J., concur.
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