Antwonna Smith v. State of Indiana

Nov 21 2014, 8:35 am
FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOEL L. SCHUMM GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
GEORGE P. SHERMAN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ANTWONNA SMITH, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1312-CR-1015
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Amy Jones, Judge
Cause No. 49F08-1203-FD-19889
November 21, 2014
OPINION – FOR PUBLICATION
MAY, JUDGE
Antwonna Smith was convicted after a jury trial of Class D felony theft1 and Class D
felony resisting law enforcement.2 Resisting law enforcement is a Class A misdemeanor, but
when Smith committed the offense it could be enhanced to a Class D felony if the person
“inflicts bodily injury on or otherwise causes bodily injury to another person.” Ind. Code §
35-44.1-3-1. Smith’s conviction of resisting law enforcement was enhanced to a Class D
felony on the ground she inflicted bodily injury after a police officer scraped his knuckle and
fingertip while forcing Smith to the ground. Smith argues on appeal the enhancement was
error because she did not “inflict” the injury on the officer and the “cause”3 of the injury was
the officer’s action, not hers. We agree and therefore reverse and remand so the trial court
may enter a conviction of resisting law enforcement as a Class A misdemeanor.
FACTS AND PROCEDURAL HISTORY4
Smith left a Meijer store without paying for some items. A Meijer loss prevention
employee followed Smith to the parking lot and confronted her about shoplifting. She denied
taking the items and continued walking toward her car. Another loss prevention employee
1
Ind. Code § 35-43-4-2 (2011).
2
Ind. Code § 35-44.1-3-1 (2011).
3
While the Indiana statute allows an enhancement when a defendant “inflicts bodily injury on or otherwise
causes bodily injury,” Ind. Code § 35-44.1-3-1 (emphasis added), Smith was charged only with “inflicting”
bodily injury. The charging information does not allege she “caused” the officer’s injury; it alleges only that
she “did knowingly and forcibly resist, obstruct, or interfere with [the officer] . . . and further that while doing
so, [Smith] inflicted bodily injury on [the officer].” (App. at 22) (emphasis added).
The purpose of an information is to advise the defendant of the crime with which she is charged so she can
prepare a defense. Bei Bei Shuai v. State, 966 N.E.2d 619, 626 (Ind. Ct. App. 2012), trans. denied. Smith
does not argue on appeal the charging information was inadequate.
4
We heard oral argument September 12, 2014, at Linton-Stockton High School in Linton, Indiana. We thank
the school for its hospitality and commend counsel for the quality of their oral advocacy.
2
called Officer Rick Jones, a police officer and former Meijer loss prevention employee who
was nearby. The employee told Officer Jones about the shoplifting and provided a
description. Smith left in her car, and two Meijer employees followed her so they could
identify her when Officer Jones stopped her.
Officer Jones found Smith’s car and pulled her over. When the Meijer employees
arrived, Officer Jones had them look into Smith’s car to identify the items she had taken from
the store. They identified Smith and the items, and Officer Jones asked Smith to step out of
the car so he could arrest her. When Smith was outside the car, Officer Jones asked her to
put her hands behind her back, but she did not comply. The officer tried to handcuff her, but
she would not put her hands behind her. Smith moved toward the driver’s door of her car,
and the officer “forcefully put all [his] body weight onto her body . . . to prevent her from
getting into the vehicle.” (Tr. at 77.)
There was a struggle, and one of the Meijer employees grabbed Smith’s arm.5 Officer
Jones told Smith: “You don’t want me to take you to the ground. It’s wet. Just put your
hands behind your back and we won’t end up on the ground. You won’t be taken to the
ground.” (Id. at 78.) Smith still would not submit to being handcuffed, so the officer “gave
her a knee strike,” (id.), which he described as “a pain compliance technique to whereas if I
can apply some pain to . . . a nerve that runs to the muscle of your leg. . . . [I]t’s a temporary
5
The State says in its brief that the employee “felt compelled to intervene and assist the police officer by
trying to hold down one of Smith’s arms.” (Br. of Appellee at 3.) Nothing in the part of the transcript to
which the State directs us suggests the employee was “compelled” to do what he did or what his reasons were
for doing it. The transcript says only that the employee “came onto her left side and actually grabbed a hold of
her arm . . . her left arm.” (Tr. at 78.)
3
pain . . . it’s designed to take your mind off what you’re currently doing.” (Id. at 78-79.)
That did not have the desired effect, so the officer “pulled her arm as [sic] about as possibly
as hard as I could [and] we ended up on the ground.” (Id. at 80.)
Smith told Officer Jones he had broken her leg, and she testified she was hospitalized
four days for her injuries. After they fell, Officer Jones discovered “lacerations to [sic]
scraping from being on the pavement . . . in [sic] one of my knuckles and my fingertip area.”
(Id. at 81.) The injury was “painful,” (id. at 83), but was “nothing that prohibited me from
continuing to write with a pencil” and it did not prevent the officer from returning to work.
(Id.) Medics cleaned the wound but did not bandage it.
The State charged Smith with theft and resisting arrest, and it elevated the latter
charge to a Class D felony based on the injury to the officer. A jury found Smith guilty of
both.
DISCUSSION AND DECISION
On a review for sufficient evidence, an appellate court will look only to the evidence
most favorable to the judgment and all reasonable inferences to be drawn therefrom. Woods
v. State, 274 Ind. 624, 629, 413 N.E.2d 572, 575 (1980). If the existence of each element of
the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be
disturbed. Id. In such a review, we will not weigh conflicting evidence nor will we judge the
credibility of the witnesses. Id. But on a claim of insufficient evidence we have a duty to
examine the evidence closely, not with a view towards resolving conflicts thereon, but for the
purpose of determining whether, after resolving all reasonable doubts in favor of the verdict,
4
it may be said that, on such evidence, a reasonable person could have reached such a verdict,
beyond a reasonable doubt. Id.
There must be substantial evidence of probative value before we can decide an
accused has been proven guilty beyond a reasonable doubt. Id. That rule places the evidence
before the court on appeal, not for the purpose of weighing it, or for the purpose of
determining the facts when there is actual conflict, but for the purpose of deciding, as a
question of law, whether there is substantive evidence in support of the required material
facts essential to a conviction. Id. at 629-630, 413 N.E.2d at 575. It is not enough to sustain
a conviction that the evidence, when given full faith and credit, may warrant a suspicion or
amount to a scintilla. Id. at 630, 413 N.E.2d at 575.
At the time of Smith’s offense,6 Ind. Code § 35-44.1-3-1 provided: “A person who
knowingly or intentionally: (1) forcibly resists, obstructs, or interferes with a law
enforcement officer or a person assisting the officer while the officer is lawfully engaged in
the execution of the officer’s duties; . . . commits resisting law enforcement.” The offense
was a Class A misdemeanor, but could be enhanced to a Class D felony if the person “inflicts
bodily injury on or otherwise causes bodily injury to another person.” Id.
Smith concedes the officer was injured during the arrest, but argues the enhancement
was improper because the State did not prove Smith “inflicted” or “caused” the injury. The
officer was injured when he fell to the ground while forcing Smith to the ground. Smith says
6
Thereafter, Public Law No. 158-2013 amended a number of statutes, including resisting law enforcement, to
implement a six-tiered “Level” sentencing structure for felony convictions in place of the four-tiered “Class”
sentencing structure for felonies. Pavlovich v. State, 6 N.E.3d 969, 973 n.3 (Ind. Ct. App. 2014), trans.
5
the events in this case might support an enhancement if the statute required that conduct
“result in” injury to another person, as did the language in Ind. Code § 35-42-2-1, which
provided battery was a Class B misdemeanor but was enhanced to a Class A misdemeanor “if
it results in bodily injury to any other person.” Smith notes similar language in other statutes.
See, e.g., Ind. Code § 35-42-5-1 (2013) (robbery is a Level 5 felony, but is a Level 2 felony
“if it results in serious bodily injury to any person”); Ind. Code § 35-43-2-1 (2013) (burglary
is a Level 5 felony, but is a Level 3 felony “if it results in bodily injury”).
When construing a penal statute, ambiguous language must be construed strictly
against the State and in favor of the accused. Brown v. State, 868 N.E.2d 464, 470 (Ind.
2007). Brown was charged with identity deception, which is a crime when “a person . . .
knowingly or intentionally . . . uses the identifying information of another person: (1)
without the other person’s consent; and (2) with intent to: (A) harm or defraud another
person . . . or . . . profess to be another person.” Ind. Code § 35-43-5-3.5(a). Our Indiana
Supreme Court determined the phrase “identifying information” required the State to prove
Brown “used an individual’s name, address, date of birth, or other identifiers, to commit the
charged crime.” Brown, 868 N.E.2d at 470 (emphasis in original). There was evidence
Brown used information identifying a radio station without its consent, but there was no
evidence he used “the name, address, date of birth, or other identifiers of any existing human
being in perpetrating his hoax.” Id. As the evidence did not establish Brown committed the
offense by using information specifically identifying another individual human being, the
denied.
6
evidence was insufficient to prove all the elements of identity deception. Id.
Smith did not “inflict” an injury on the officer or “cause” the officer’s injury, and her
conviction should not have been enhanced to a felony. Officer Jones scraped his knuckle and
fingertip when he fell while forcing Smith to the ground, but we agree with Smith that she
was “a passive part of the encounter” and “took no actions toward” him. (Br. of Appellant at
7.)
We acknowledge that in Whaley v. State, 843 N.E.2d 1, 10-11 (Ind. Ct. App. 2006),
trans. denied, a panel of this court reached the opposite result. Whaley, as does Smith in the
case before us, compared the “inflicts bodily injury” phrase with other statutes that use the
phrase “results in bodily injury.” Two deputies were chasing Whaley and they caught him
when he fell down. Whaley put his arms underneath his body so the deputies could not
handcuff him. The deputies had to hit Whaley’s forearms in order to bring his arms behind
his back. As a result, both deputies injured their hands. Whaley argued he did not inflict
bodily injury on the deputies; rather, he contended they inflicted injury on themselves by
hitting Whaley’s arms.
Whaley argued the phrase “inflicts bodily injury” implied a “more direct causation.”
Id. at 11. The Whaley panel rejected that argument. It noted penal statutes must be strictly
construed against the State, but a statute should not be overly narrowed so as to exclude cases
fairly covered by it, and it should be interpreted so as to give efficient operation to the
expressed intent of the legislature. Id. The statute does not define “inflict,” and when the
legislature has not defined a word, we give the word its common and ordinary meaning. Id.
7
“Inflict” is generally defined as “to cause (something unpleasant) to be endured.” Id.
(quoting Merriam–Webster Online Dictionary, available at www.m-w.com/dictionary). That
panel therefore determined a person resists law enforcement as a Class D felony if, while
committing the offense, he “causes someone to experience bodily injury.” Id. The deputies’
injuries were “directly related to and caused by Whaley’s resisting arrest.” Id. Therefore,
such actions were included within the definition of “inflict,” and the evidence was sufficient
to sustain Whaley’s convictions. Id.
As we do not believe a person who is thrown to the ground necessarily “inflicts” or
“causes” an injury suffered by the person who throws her to the ground, we decline to follow
Whaley:
This Court is respectful of the decisions of other panels and has so
indicated in previous decisions. See, e.g., Lincoln Utils., Inc. v. Office of Util.
Consumer Counselor, 661 N.E.2d 562, 565 (Ind. Ct. App. 1996) (a court on
appeal will follow its previous decisions unless provided with strong
justification for departure), [reh’g denied,] trans. denied. Indiana does not,
however, recognize horizontal stare decisis. Thus, each panel of this Court
has coequal authority on an issue and considers any previous decisions by
other panels but is not bound by those decisions. See, e.g., O’Casek v.
Children’s Home and Aid Society of Illinois, 229 Ill. 2d 421, 323 Ill. Dec. 2,
892 N.E.2d 994, 1014 n.4 (2008) (horizontal stare decisis is not an inexorable
command, whereas vertical stare decisis is an obligation to follow the
decisions of superior tribunals).
The Indiana Appellate Rules specifically contemplate diverse outcomes
by panels of this Court. Appellate Rule 57, governing petitions for transfer to
our Supreme Court, recognizes conflicting decisions by this Court’s panels as a
ground for transfer.
It is axiomatic that the body of law on a topic is shaped by distinctions
in the facts and circumstances presented in each case. . . . See Ind.
Professional Conduct Rule 3.1, Comment (“[T]he law is not always clear and
never is static. Accordingly, in determining the proper scope of advocacy,
account must be taken of the law’s ambiguities and potential for change.”).
8
In re C.F., 911 N.E.2d 657, 658 (Ind. Ct. App. 2009).
In the instant case, Officer Jones chose to halt Smith’s resistance by throwing her to
the ground, and the officer was injured in so doing. Unlike Whaley, Smith did not create a
scenario in which Officer Jones’ only option in handcuffing her was to remove her hands
from a location in which he could not reach.
As Smith did not inflict or directly cause Officer Jones’ injury, her conviction should
not have been enhanced to a felony. We must therefore reverse and remand.
Reversed and remanded.
BAILEY, J., and BROWN, J., concur.
9