Deangelo LaJuan Curry v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before Mar 07 2014, 5:36 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
GREGORY L. FUMAROLO GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
ANDREW FALK
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DEANGELO LAJUAN CURRY, )
)
Appellant-Defendant, )
)
vs. ) No. 02A05-1308-CR-432
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable Wendy W. Davis, Judge
Cause No. 02D04-1210-FD-1508
March 7, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Deangelo Lajuan Curry appeals his convictions for possession of marijuana as a
class D felony and resisting law enforcement as a class D felony. Curry raises two issues
which we revise and restate as whether the evidence is sufficient to support his
convictions. We affirm.
FACTS AND PROCEDURAL HISTORY
At approximately 11:30 p.m. on October 20, 2012, Fort Wayne Police Officer
Craig Wise, who was wearing his police uniform, was on patrol in his marked police
vehicle near Broadway Joe’s bar. Officer Wise observed a vehicle with paper license
plates drive slowly by his patrol vehicle and saw the two black male occupants glance
over at him. He observed the vehicle stop and saw the driver exit the vehicle and walk
toward the front door of the bar, and, when he noticed that no one was in the passenger
seat, Officer Wise exited his police vehicle and walked around the corner of the building
to see if the passenger went behind the bar.
Officer Wise walked around the next corner of the building to an alley and
observed Curry standing there. Curry looked at him and then took “some steps back real
quick and pat[ted] his waist real quick.” Transcript at 75. Officer Wise asked Curry
what he was doing back there, and, fearing that Curry had a gun because he kept patting
his waist, the officer asked him to raise his hands. Officer Wise went to “sneak behind
[Curry] real quick,” started patting him down, and asked “[w]hat are you doing back
here.” Id. Curry replied that he was waiting for his brother.
As Officer Wise patted the area around Curry’s waist, he noticed a large ball and
asked “[w]hat have you got right here.” Id. Curry hesitated, did not answer, and then
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“tried to push off [Officer Wise] real quick.” Id. Officer Wise held onto Curry’s shirt,
and Curry turned and slapped Officer Wise’s glasses off his face, knocking the glasses to
the ground and breaking them. Officer Wise tackled Curry to the ground and ordered
him to place his hands behind his back, but Curry tried to push off of the ground. Officer
Wise called for help using his radio.
Tyrone Fluker, the security officer at Broadway Joe’s that night, came around the
building, heard Officer Wise order Curry to the ground, and observed him struggling with
Curry. Fluker yelled at Curry to stay on the ground, but Curry continued to attempt to
break away from Officer Wise and Fluker. Fluker helped restrain Curry until additional
officers arrived about three minutes later. Officer Chris Hoffman, wearing his full police
uniform, arrived at the scene and observed that Officer Wise was attempting to restrain
Curry on the ground and that Curry was “[o]ut of control,” and “screaming, attempt[ing]
to push up off the ground,” and “twisting his upper body attempting to get away from
Officer Wise.” Id. at 126. Officers Hoffman and Troy Jester assisted with restraining
and handcuffing Curry. Officers Hoffman and Jester patted him down and found two
bags of a substance later determined to be 97.3 grams of marijuana. Officer Wise’s
knuckles and knees were bloody as a result of the struggle.
On October 25, 2012, the State charged Curry with possession of marijuana as a
class D felony and resisting law enforcement as a class D felony. A jury found him
guilty on both counts. The court sentenced him to three years for each conviction, to be
served concurrent with each other, and ordered that two and one-half years be executed in
the Department of Correction and six months served on probation.
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DISCUSSION
The issue is whether the evidence is sufficient to sustain Curry’s convictions for
possession of marijuana and resisting law enforcement. When reviewing claims of
insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of
witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we
look to the evidence and the reasonable inferences therefrom that support the verdict. Id.We will affirm the conviction if there exists evidence of probative value from which a
reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id. It
is well established that circumstantial evidence will be deemed sufficient if inferences
may reasonably be drawn that enable the trier of fact to find the defendant guilty beyond
a reasonable doubt. Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001). It is the function of
the trier of fact to resolve conflicts of testimony and to determine the weight of the
evidence and the credibility of the witnesses. Houston v. State, 997 N.E.2d 407, 409
(Ind. Ct. App. 2013).
A. Possession of Marijuana
The offense of possession of marijuana is governed by Ind. Code § 35-48-4-11,
which provides in part that “[a] person who . . . knowingly or intentionally possesses
(pure or adulterated) marijuana . . . commits possession of marijuana” and that “the
offense is a Class D felony if the amount involved is more than thirty (30) grams of
marijuana . . . .” Thus, to convict Curry of possession of marijuana as a class D felony,
the State needed to prove that he knowingly or intentionally possessed more than thirty
grams of marijuana.
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Curry contends that the evidence was insufficient to show that he possessed the
marijuana. Specifically, he notes that the officers claimed that two baggies of marijuana
were found on his person, but there was no corroboration by civilian eyewitnesses, and
that he “would have been patted down by . . . Flucker [sic], which would have revealed
any contraband [he] was carrying.” Appellant’s Brief at 11. He does not dispute that the
substance was marijuana or that it weighed over thirty grams. The State argues that
Fluker testified that he had not patted down Curry the evening of the incident, that Curry
relies solely on his own testimony and ignores all contradictory testimony, and that this
Court may not reweigh the evidence.
We agree that Curry’s arguments amount to an invitation for this court reweigh the
evidence, assess the credibility of the witnesses, and resolve conflicts in testimony, which
we will not do. See Jordan, 656 N.E.2d at 817; Houston, 997 N.E.2d at 409. The record
reveals that Officer Wise walked around the corner of the building and that Curry looked
at him and took “some steps back real quick and pat[ted] his waist real quick.”
Transcript at 75. Officer Wise feared that Curry had a gun because he kept patting his
waist. As Officer Wise was patting him down, he noticed a large ball and asked Curry
about it, at which point Curry hesitated and then attempted to break free. After he was
restrained, the police patted him down and discovered two bags of marijuana with a
combined weight of 97.3 grams. To the extent that Curry argues that he entered the bar
and that Fluker, as the bar’s security officer, would have patted him down which would
have revealed any drugs he was carrying, we observe that Fluker testified that he patted
down everybody that came through the bar’s front door and that Curry was not in the bar
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prior to 11:30 p.m. on the night of the incident, and we note it is the function of the trier
of fact to resolve conflicts of testimony and to determine the weight of the evidence and
the credibility of the witnesses. See Houston, 997 N.E.2d at 409.
Based upon the record, we conclude that evidence of probative value existed from
which the jury could conclude beyond a reasonable doubt that Curry was guilty of
possession of marijuana as a class D felony.
B. Resisting Law Enforcement
Ind. Code 35-44.1-3-1(a) provides that “[a] person who knowingly or intentionally
. . . 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, a Class A misdemeanor . . . .” Ind. Code §
35-44.1-3-1(b) provides that the offense is a class D felony if “while committing any
offense described in subsection (a), the person draws or uses a deadly weapon, inflicts
bodily injury on or otherwise causes bodily injury to another person, or operates a vehicle
in a manner that creates a substantial risk of bodily injury to another person . . . .” “A
person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his
conscious objective to do so.” Ind. Code § 35-41-2-2(a). “A person engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he
is doing so.” Ind. Code § 35-41-2-2(b).
Curry asserts that the evidence was insufficient to show that he knew or was aware
to a high degree of probability that Officer Wise was a police officer, that nowhere in
Officer Wise’s testimony does he say he identified himself as a police officer by audible
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means, and that, although Officer Wise was wearing his police uniform, there was no
evidence that Curry could see what the officer was wearing. The State maintains that the
evidence was sufficient to support the jury’s verdict as, when Curry looked at Officer
Wise, he took some steps back and patted his waist, that Officer Wise started to pat him
down and asked what he was doing, and that “even if [Curry] did not initially recognize
that [Officer] Wise was a police officer, by all accounts [Curry] was ‘out of control’ and
continued struggling against [Officer] Wise and the other officers who joined him for
several minutes, long after he should have realized that it was law enforcement officers
who were attempting to restrain him.” Appellee’s Brief at 10.
At trial, Curry testified that he did not know that Officer Wise was a police officer
when he grabbed him from behind. However, Officer Wise testified that he was wearing
his police uniform and that when he first walked around the corner, Curry looked at him
and then took “some steps back real quick and pat[ted] his waist real quick.” Transcript
at 75. Officer Wise asked him what he was doing back there and then asked him to raise
his hands. Officer Wise then went to “sneak behind” Curry, started patting him down,
and asked “[w]hat are you doing back here.” Id. Curry then replied that he was waiting
for his brother. When Officer Wise asked Curry about the item near his waist, Curry
attempted to “push off” from the officer. Id. Officer Wise testified that he ordered Curry
to place his hands behind his back, and Fluker testified that Officer Wise ordered Curry
to the ground. Officer Wise called for help using his radio, and Officers Hoffman and
Jester arrived at the scene. Officer Hoffman testified that he was in full police uniform,
that he observed Officer Wise attempting to maintain control of Curry, and that he and
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Officer Jester helped restrain Curry so that he would not kick the officers. While Curry
claims that he did not know that Officer Wise was a law enforcement officer, we note
that it is for the trier of fact to determine the credibility of the witnesses and assess their
testimony.
Based upon our review of the testimony most favorable to the conviction, we
conclude that a reasonable jury could have determined and inferred from the evidence
that Curry resisted Officer Wise knowingly or intentionally and that sufficient evidence
exists from which the jury could find Curry guilty beyond a reasonable doubt of resisting
law enforcement as a class D felony. See Bernard v. State, 540 N.E.2d 23, 27 (Ind. 1989)
(addressing the appellant’s claim that he did not act knowingly or intentionally, observing
that the police officer was in uniform and that the appellant was required to turn in order
to kick the officer, and holding that a trier of fact could reasonably conclude beyond a
reasonable doubt that the appellant was aware of a high probability that he was kicking a
law enforcement officer engaged in carrying out his official duties and that the evidence
of resisting law enforcement was sufficient).
CONCLUSION
For the foregoing reasons, we affirm Curry’s convictions for possession of
marijuana as a class D felony and resisting law enforcement as a class D felony.
Affirmed.
ROBB, J., and BARNES, J., concur.
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