MEMORANDUM DECISION                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                               Nov 04 2016, 9:16 am

this Memorandum Decision shall not be                                     CLERK
                                                                      Indiana Supreme Court
regarded as precedent or cited before any                                Court of Appeals
                                                                           and Tax Court
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
Suzy St. John                                           Gregory F. Zoeller
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Paula J. Beller
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Antonio West,                                           November 4, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1603-CR-578
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Linda Brown,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G10-1509-CM-33910



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-578 | November 4, 2016        Page 1 of 8
                                           Case Summary
[1]   Following a bench trial, Antonio West (“West”) was convicted of Resisting

      Law Enforcement, as a Class A misdemeanor.1 West appeals, raising the sole

      issue of whether the evidence is sufficient to support his conviction. We affirm.



                                Facts and Procedural History
[2]   On September 22, 2015, Officer Kevin Jennings (“Officer Jennings”) of the

      Indianapolis Metropolitan Police Department (“IMPD”) was entering his

      patrol vehicle when a citizen approached him. The citizen, who was never

      identified, said “Hey, do you see the gentleman across the street beating a

      woman[?] He is wearing a blue coat and a white hat[.]” (Tr. at 52.) When

      Officer Jennings looked across the street, he saw a woman on the ground. He

      heard yelling. He also observed a man, later identified as West, walking away

      from the woman. West was wearing a blue top and a white hat.


[3]   To approach West, Officer Jennings drove across the street and pulled into a

      nearby gas station. West soon saw Officer Jennings and began running.

      Officer Jennings drove out of the gas station, following West. Officer Jennings

      saw West enter the passenger side of a vehicle and then saw the vehicle began

      to drive away. With his patrol vehicle’s lights and siren activated, Officer

      Jennings followed the vehicle for about a block and a half. The vehicle then




      1
          Ind. Code § 35-44.1-3-1(a)(3).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-578 | November 4, 2016   Page 2 of 8
      stopped, and West jumped out and began running. Officer Jennings exited his

      vehicle and pursued West. When approximately twenty yards behind West,

      Officer Jennings yelled, “Stop[,] Police.” (Tr. at 58.) West continued to run.

      Additional IMPD officers responded to the scene and eventually arrested West.


[4]   On February 23, 2016, West was brought to trial2 on a charge of resisting law

      enforcement. Following the bench trial, West was convicted. He now appeals.



                                     Discussion and Decision
[5]   When reviewing the sufficiency of the evidence to support a conviction, we

      neither reweigh the evidence nor assess witness credibility. Drane v. State, 867

      N.E.2d 144, 146 (Ind. 2007). We consider only the evidence supporting the

      judgment and any reasonable inferences that can be drawn from that evidence.

      Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We must affirm the

      conviction if there is “substantial evidence of probative value supporting each

      element of the offense such that a reasonable trier of fact could have found the

      defendant guilty beyond a reasonable doubt.” Willis v. State, 27 N.E.3d 1065,

      1066 (Ind. 2015).


[6]   To convict West of resisting law enforcement beyond a reasonable doubt, the

      State had to prove that West knowingly fled from Officer Jennings after he had,

      by visible or audible means, identified himself and ordered West to stop. I.C. §




      2
          An earlier jury trial on January 25, 2016 resulted in a mistrial.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-578 | November 4, 2016   Page 3 of 8
      35-44.1-3-1(a)(3). Additionally, the Indiana Supreme Court has held that the

      State must also prove that the order to stop was lawful. Gaddie v. State, 10

      N.E.3d 1249, 1255-56 (Ind. 2014). This is so because a conviction of resisting

      law enforcement, absent a lawful order to stop, would “undermine

      longstanding search and seizure precedent that establishes the principle that an

      individual has a right to ignore police and go about his business.” Id. at 1254.

      Both the Fourth Amendment to the United States Constitution and Article 1,

      Section 11 of the Indiana Constitution protect citizens against unreasonable

      searches and seizures. U.S. Const. amend. IV; Ind. Const. art. 1, § 11.


[7]   Here, West’s sole contention is that the State failed to prove that Officer

      Jennings’s order to stop was lawful under constitutional principles. Thus, West

      contends, there is insufficient evidence to support his conviction of resisting law

      enforcement.


                                   The Fourth Amendment
[8]   Under the Fourth Amendment, at minimum, the government’s seizure of a

      citizen must rest on specific, articulable facts that lead an officer to reasonably

      suspect that criminal activity is afoot. Gaddie, 10 N.E.3d at 1253 (citing Terry v.

      Ohio, 392 U.S. 1, 30 (1968)). Determinations of reasonable suspicion are made

      based upon the totality of the circumstances. Platt v. State, 589 N.E.2d 222, 226

      (Ind. 1992) (citing United States v. Sokolow, 490 U.S. 1, 8 (1989)). Given the

      totality of the circumstances, “officers must have a particularized and objective




      Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-578 | November 4, 2016   Page 4 of 8
       basis for suspecting the particular person stopped of criminal activity.” United

       States v. Cortez, 449 U.S. 411, 417-18 (1981).


[9]    Here, Officer Jennings ordered West to stop, in part, based on a tip from an

       unidentified informant. An anonymous tip alone does not always generate the

       reasonable suspicion necessary for a valid stop. Lampkins v. State, 682 N.E.2d

       1268, 1271 (Ind. 1997), modified on reh’g on other grounds (citing Alabama v.

       White, 496 U.S. 325, 329-30 (1990)). “But under appropriate circumstances, an

       anonymous tip can demonstrate ‘sufficient indicia of reliability to provide

       reasonable suspicion to make [an] investigatory stop.’” Navarette v. California,

       134 S.Ct. 1683, 1688 (2014) (quoting White, 496 U.S. at 327). One

       circumstance indicating a tip is reliable is when an informant provides

       information that accurately predicts a suspect’s future behavior. Id. at 1688

       (citing White, 496 U.S. at 332). Another circumstance indicating reliability is

       when an informant claims eyewitness knowledge of alleged wrongdoing. Id. at

       1689 (citing Illinois v. Gates, 462 U.S. 213, 235 (1983) (observing that eyewitness

       knowledge “lends significant support to the tip’s reliability.”). Furthermore,

       when a tip is made “contemporaneous with the observation of criminal activity

       or made under the stress of excitement caused by a startling event . . . those

       considerations weigh in favor of the [informant’s] veracity . . . .” Id. at 1689.


[10]   The facts favorable to the judgment indicate that an unidentified citizen told

       Officer Jennings that there was a battery in progress across the street, and

       identified a man in a blue coat and white hat as the alleged batterer. Officer

       Jennings then looked across the street, heard yelling, and saw a woman on the
       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-578 | November 4, 2016   Page 5 of 8
       ground. He saw a man who fit the description, West, walking away from the

       woman. Notably, the concerned citizen provided the tip to Officer Jennings

       having just personally witnessed the alleged criminal activity, weighing in favor

       of the informant’s veracity. See id. Officer Jennings was immediately able to

       corroborate the tip by observing what appeared to be the aftermath of a battery.

       See State v. Renzulli, 958 N.E.2d 1143, 1148 (Ind. 2011) (in evaluating the

       reliability of a tip, finding notable a lack of elapsed time between law

       enforcement receiving the tip and finding a vehicle fitting the informant’s

       description in the same described area). Here, too, “there is no evidence to

       suggest that the citizen concocted a false report, told some ‘tall tale’ . . . or

       otherwise acted in a manner which might have placed the citizen’s motive or

       credibility at issue.” Bogetti v. State, 723 N.E.2d 876, 879 (Ind. Ct. App. 2000).


[11]   Given that the informant’s tip was contemporaneous with witnessing a

       potential battery, and in light of Officer Jennings’s immediate corroborating

       observations, we find that the State presented sufficient evidence that the order

       to stop comported with the Fourth Amendment.


                                        Article 1, Section 11
[12]   The text of Article 1, Section 11 of the Indiana Constitution is similar to that of

       the Fourth Amendment. However, we conduct a separate, independent inquiry

       focusing on whether the police conduct was “reasonable under the totality of

       the circumstances.” State v. Washington, 898 N.E.2d 1200, 1205-06 (Ind. 2008).

       In evaluating reasonableness, we consider three factors: “1) the degree of


       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-578 | November 4, 2016   Page 6 of 8
       concern, suspicion, or knowledge that a violation has occurred, 2) the degree of

       intrusion the method of the search or seizure imposes on the citizen’s ordinary

       activities, and 3) the extent of law enforcement needs.” Litchfield v. State, 824

       N.E.2d 356, 361 (Ind. 2005).


[13]   Here, Officer Jennings received a tip from an informant personally witnessing a

       potential battery. The nature of the contemporaneous tip, coupled with Officer

       Jennings’s observations, support the conclusion that Officer Jennings had a

       high degree of concern that West committed a criminal act. As to the degree of

       intrusion, although Officer Jennings did not seize West, Officer Jennings

       testified that he intended to stop West to question him, an investigatory stop

       that would have imposed a relatively low degree of intrusion on West. Finally,

       as to the extent of law enforcement needs, Officer Jennings could have first

       interviewed the alleged victim to verify the tip. However, West was walking

       away from the scene and could have left the area, making him difficult to later

       identify. See United States v. Hensley, 469 U.S. 221, 229 (observing the practical

       law enforcement concern that in some circumstances “[r]estraining police

       action until after probable cause is obtained would not only hinder the

       investigation, but might also enable the suspect to flee in the interim and to

       remain at large.”).


[14]   We find that the State presented sufficient evidence that Officer Jennings’s

       conduct was reasonable under the totality of the circumstances, thus, the order

       to stop did not affront West’s rights under the Indiana Constitution.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-578 | November 4, 2016   Page 7 of 8
                                               Conclusion
[15]   Officer Jennings’s order to stop was constitutionally permissible, and the State

       presented evidence sufficient to convict West of resisting law enforcement.


[16]   Affirmed.


       Riley, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1603-CR-578 | November 4, 2016   Page 8 of 8
