FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

MICHAEL C. BORSCHEL                         GREGORY F. ZOELLER
Fishers, Indiana                            Attorney General of Indiana

                                            KENNETH BIGGINS
                                            Deputy Attorney General
                                            Indianapolis, Indiana


                                                                      Dec 30 2014, 9:57 am



                            IN THE
                  COURT OF APPEALS OF INDIANA

BRANDAN JONES,                              )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )        No. 49A02-1406-CR-383
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


             APPEAL FROM THE MARION COUNTY SUPERIOR COURT
                       The Honorable Sheila Carlisle, Judge
                      The Honorable Stanley Kroh, Magistrate
                       Cause No. 49G03-1305-FD-029334


                                 December 30, 2014


                            OPINION - FOR PUBLICATION


FRIEDLANDER, Judge
        Brandan Jones appeals following a guilty verdict for class D felony Assisting a

Criminal.1 Jones raises a single issue for our review: Did the State present sufficient

evidence to support a finding of guilt?

        We affirm.

        At approximately 1:00 a.m. on May 4, 2013, Indianapolis Metropolitan Police

Officer David Hutson was on patrol duty in his marked police cruiser when he saw a gold

SUV travelling in the opposite lane. The SUV crossed the center line such that Officer

Huston had to take evasive action to avoid a collision. Officer Hutson then turned around

and followed the vehicle and watched as the driver failed to stop at a stop sign. At that

point, Officer Hutson activated his emergency lights and initiated a traffic stop. When

Officer Hutson approached the vehicle, he observed a male driver and a male passenger

in the front seat. Both men provided Officer Hutson with state identification cards. After

returning to his patrol car and checking the identification provided by Bennie Stigler, the

man in the driver’s seat, Officer Hutson discovered that Stigler’s driver’s license was

suspended for life. Before returning to the SUV to arrest Stigler, Officer Huston called

for backup. A few minutes later, Officer Robert Lawson arrived, and both officers

approached the vehicle. To their surprise, however, Jones, the passenger, was now in the

driver’s seat, and Stigler, the driver, was now in the passenger seat.                     The officers

removed both men from the car and placed them in handcuffs. Officer Hutson asked

1
  Ind. Code Ann. § 35-44.1-2-5 (West, Westlaw 2013). Effective July 1, 2014, this offense has been
reclassified as a Level 6 felony. Ind. Code § 35-44.1-2-5 (West, Westlaw current with all 2014 Public
Laws of the 2014 Second Regular Session and Second Regular Technical Session of the 118th General
Assembly). Because Jones committed this offense prior to that date, it retains is prior classification as a
class D felony.


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Jones why he had switched seats, and he denied doing so. During this conversation,

Officer Hutson smelled an odor of alcoholic beverages on Jones’s breath.

       As a result of these events, Stigler was charged with class C felony operating a

motor vehicle while privileges are forfeited for life, and Jones was charged with assisting

a criminal as a class D felony. A joint jury trial was held on April 23, 2014, and both

Stigler and Jones were found guilty as charged. At sentencing, the trial court entered

Jones’s conviction as a class A misdemeanor pursuant to Ind. Code Ann. § 35-50-2-7(b)

(West, Westlaw 2014) and sentenced him to 365 days with credit for two days served and

the balance suspended to probation. Jones now appeals.

       Jones argues that the State presented insufficient evidence to support the jury’s

guilty verdict. In reviewing a challenge to the sufficiency of the evidence, we neither

reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State, 911

N.E.2d 601 (Ind. Ct. App. 2009). Instead, we consider only the evidence supporting the

conviction and the reasonable inferences to be drawn therefrom.           Id.   If there is

substantial evidence of probative value from which a reasonable trier of fact could have

drawn the conclusion that the defendant was guilty of the crime charged beyond a

reasonable doubt, then the judgment will not be disturbed. Baumgartner v. State, 891

N.E.2d 1131 (Ind. Ct. App. 2008).

       It is not necessary that the evidence overcome every reasonable hypothesis of

innocence; rather, the evidence is sufficient if an inference may reasonably be drawn

from it to support the conviction.      Drane v. State, 867 N.E.2d 144 (Ind. 2007).

Accordingly, the question on appeal is whether the inferences supporting the verdict were

                                            3
reasonable, not whether other, “more reasonable” inferences could have been drawn.

Thompson v. State, 804 N.E.2d 1146, 1150 (Ind. 2004). Because reaching alternative

inferences is the function of the trier of fact, we may not reverse a conviction merely

because a different inference might plausibly be drawn from the evidence. Thompson v.

State, 804 N.E.2d 1146.

        At the time of Jones’s offense, the statute criminalizing assisting a criminal

provided in relevant part as follows:

        (a) A person not standing in the relation of parent, child, or spouse to
        another person who has committed a crime or is a fugitive from justice
        who, with intent to hinder the apprehension or punishment of the other
        person, harbors, conceals, or otherwise assists the person commits assisting
        a criminal, a Class A misdemeanor. However, the offense is:
               (1) a Class D felony, if the person assisted has committed a Class B,
               Class C, or Class D felony; and
               (2) a Class C felony, if the person assisted has committed murder or
               a Class A felony, or if the assistance was providing a deadly
               weapon.

I.C. § 35-44.1-2-5. This statute “was intended to apply to people who did not actively

participate in the crime itself, but who did assist a criminal after he or she committed a

crime.” Hauk v. State, 729 N.E.2d 994, 999 (Ind. 2000).

        Jones repeatedly concedes that the evidence was sufficient to support conviction

as a class A misdemeanor.2 On appeal, Jones challenges only the elevation of the offense

to a class D felony. The crux of Jones’s argument on appeal is that in order to convict

him of assisting a criminal as a class D felony, the State was required to prove not only

2
  We note that Jones’s conviction was entered as a class A misdemeanor. The parties do not argue,
however, that this renders Jones’s appellate arguments moot. This is so because the trial court’s entry of
conviction as a class A misdemeanor pursuant to I.C. § 35-50-2-7 in this case will affect the availability to
Jones of alternative misdemeanor sentencing under that statute in the future. See id.


                                                     4
that Stigler had committed a class C felony, but also that Jones was aware that Stigler

was committing a class C felony by driving after his license was forfeited for life in

violation of Ind. Code Ann. 9-30-10-17 (West, Westlaw current with all 2014 Public

Laws of the 2014 Second Regular Session and Second Regular Technical Session of the

118th General Assembly). According to Jones, although there is evidence from which

the jury could infer his intent to shield Stigler from punishment for driving without a

valid license, there is no evidence to suggest that he was aware that Stigler was

committing a class C felony by driving while his driving privileges were forfeited for life.

The State responds that “assisting a criminal automatically becomes a felony based on

whether the assisted party committed a Class B, Class C, or Class D felony, irrespective

of the assisting party’s knowledge of the underlying offense.” Appellee’s Brief at 5, n.5.

We agree with the State.

       Jones’s argument presents a question of statutory interpretation.

       Our primary goal in interpreting statutes is to determine and give effect to
       the Legislature’s intent. State v. Oddi–Smith, 878 N.E.2d 1245 (Ind. 2008).
       The best evidence of that intent is a statute’s text. Id. The first step is
       therefore to decide whether the Legislature has spoken clearly and
       unambiguously on the point in question. Sloan, 947 N.E.2d at 922. When
       a statute is clear and unambiguous, we must apply the plain and ordinary
       meaning of the language. Id. There is no need to resort to any other rules
       of statutory construction. Id.

Adams v. State, 960 N.E.2d 793, 798 (Ind. 2012).

       In this case, we conclude that the pertinent language of the assisting a criminal

statute is clear and unambiguous. The statute provides that the crime of assisting a

criminal is elevated to a class D felony “if the person assisted has committed a Class B,


                                             5
Class C, or Class D felony”.               I.C. § 35-44.1-2-5(a)(1).          The statute contains no

requirement that the person assisting the criminal have knowledge of the level or type of

felony the assisted person has committed, or that a felony has been committed at all.

Thus, the statute requires the assisted person to have committed a class B, C, or D felony,

and that the assisting person act with intent to hinder the assisted party’s apprehension or

punishment, but there is no requirement that the assisting party be aware that the assisted

party committed a class B, C, or D felony. In other words, the crime automatically

becomes a class D felony if the person assisted has committed a class B, C, or D felony,

regardless of whether the assisting party was aware of that fact. There is simply nothing

in the language of the statute to support Jones’s interpretation.3 In light of the language

of the statute, when a person undertakes to assist a criminal, he does so at his peril. That

is, his potential criminal liability increases depending on the seriousness of the offense

committed by the assisted party, irrespective of whether the assisting party was aware of

the precise crime committed or its sentencing classification.

        The only mental element the State must prove in order to support a conviction for

assisting a criminal is intent to hinder the assisted party’s apprehension or punishment,

regardless of whether the crime is charged as misdemeanor or a felony. In order to prove

such intent, the State would need to prove that the assisting party had reason to believe

that the assisted party was subject to apprehension or punishment, which in many cases

would mean that the assisting party had reason to believe that the assisted party had

3
 Jones’s reliance on Bielich v. State, 189 Ind. 127, 126 N.E. 220 (1920), is misplaced. In that case, the
court interpreted an early version of the assisting a criminal statute that did not contain the language Jones
asks us to interpret in this case, i.e., subsection (a)(1).


                                                      6
committed a crime. Indeed, our Supreme Court has explained that “[i]n prosecutions for

accessory after the fact, the State need only show that the accessory had good reasons to

believe that the crime had been committed by the principal.” Walker v. State, 246 Ind.

386, 390, 204 N.E.2d 850, 852 (1965). We do not think this requires the assisting party

to know the details of the crime committed, or its sentencing classification, or its

statutory citation, as Jones seems to suggest. We doubt that the General Assembly

intended to limit liability for assisting a criminal to cases in which the assisting party

possessed such knowledge because such a requirement would allow assisting individuals

to skirt the boundaries of the law by purposely remaining ignorant of the details of the

assisted party’s crimes while providing assistance in escaping apprehension or

punishment.4

        In this case, it is undisputed that Jones is not Stigler’s parent, child, or spouse. It

is also undisputed that Stigler committed a class C felony by driving while his privileges

were forfeited for life. The evidence establishes that Jones assisted Stigler by switching

seats with him and attempting to convince the officers that he was the one who had been

driving. Finally, the jury could infer from the circumstances that Jones did so with intent

to hinder Stigler’s apprehension or punishment. Indeed, it seems highly unlikely that


4
  In his reply brief, Jones asserts that individuals subject to administrative suspension of their driver’s
licenses must have notice of the suspension before being criminally convicted for driving in violation of
the suspension. According to Jones, “[a]t the very least, the same notice requirement should apply to one
charged with Assisting a criminal whose criminal status is determined under I.C. § 9-30-10-17.” Reply
Brief at 3. This argument is waived because it is raised for the first time in a reply brief. See Sisson v.
State, 985 N.E.2d 1 (Ind. Ct. App. 2012) (noting that parties may not raise an issue for the first time in a
reply brief), trans. denied. Waiver notwithstanding, it is not this court’s role to determine what “should”
be required to support a criminal conviction. We are bound to apply the statute as written by the General
Assembly, and it contains no such notice requirement.


                                                     7
Jones would attempt to convince the officers that he was the driver, thereby exposing

himself to responsibility not only for the moving violations which prompted the traffic

stop, but also a possible drunk-driving charge based on Officer Hutson’s observation that

Jones appeared to have been drinking, if not to shield Stigler from more serious criminal

liability.5 Thus, the State presented sufficient evidence to support a guilty verdict for

class D felony assisting a criminal.

        Judgment affirmed.

VAIDIK, C.J., and MAY, J., concur.




5
 Jones points out that driving without a license is sometimes only an infraction. See Ind. Code Ann. § 9-
24-1-8 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and
Second Regular Technical Session of the 118th General Assembly). Assuming arguendo that intent to
hinder a person’s punishment for an infraction in insufficient to establish the intent element of assisting a
criminal where the assisted party has, in fact, committed a crime, it is reasonable to infer that Jones would
not have subjected himself to these potential penalties if only to shield Stigler from the relatively minor
consequences of committing an infraction.


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