                                                                         FILED
                                                                    Sep 08 2016, 8:40 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Jeffrey E. Kimmell                                         Gregory F. Zoeller
South Bend, Indiana                                        Attorney General of Indiana
                                                           Richard C. Webster
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Royce Love,                                                September 8, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           71A03-1511-CR-2009
        v.                                                 Appeal from the St. Joseph
                                                           Superior Court
State of Indiana,                                          The Honorable J. Jerome Frese,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           71D03-1308-FD-653



Brown, Judge.




Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016                 Page 1 of 22
[1]   Royce Love appeals his convictions for mistreatment of a law enforcement

      animal and resisting law enforcement as class A misdemeanors. Love raises

      two issues, which we revise and restate as whether the evidence is sufficient to

      sustain his convictions.1 We reverse.


                                          Facts and Procedural History

[2]   At around 4:00 a.m. on August 4, 2013, South Bend Police Officers Paul Daley

      and Christopher Deak were on patrol when they observed a white van, which

      was later determined to be driven by Love, drive through a red traffic light. The

      officers began following Love’s van, saw him disregard a stop sign, and turned

      on the police car’s emergency lights to initiate a traffic stop. Love continued to

      drive, and the officers then activated their siren. Love noticed the lights and

      siren but did not stop. His failure to stop required the presence of additional

      officers, who activated their lights and sirens, to join in the pursuit. These

      officers included, among others, Officer Greg Howard, Officer Erik

      Schlegelmilch, Officer Jonathan Gray, and Office Larry Sanchez. Some of the

      officers attempted a “rolling roadblock” by blocking Love’s van with their

      police cars, but Love struck the vehicles and proceeded to lead officers on an

      approximate five minute chase. Transcript at 77. Eventually, the police were

      able to stop Love’s van with Stop Sticks® in an alley near the city’s downtown.2




      1
        Love was also convicted of an additional count of resisting law enforcement (based on fleeing in a vehicle),
      for which judgment was entered as a class A misdemeanor, but Love does not challenge the conviction.
      2
       Stop sticks are a tool used by police to “pop tires of [] suspect vehicles that aren’t stopping for the police.”
      Transcript at 105.

      Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016                           Page 2 of 22
      The officers’ vehicles were equipped with cameras which recorded the pursuit

      and stop.


[3]   A portion of the events that occurred once Love was stopped in the parking

      area near his “mother’s child’s house” was captured on the in-car video

      recorder of Officer Kyle Bilinski. Id. at 233. The video shows that when Love’s

      vehicle was stopped, the officers ordered him to exit the van and he exited the

      vehicle, raised his hands in the air, proceeded to place himself on all fours about

      five seconds after he exited the vehicle, and, after approximately ten additional

      seconds lay face down on the ground. The officers used tasers and deployed a

      police dog to effect his arrest.


[4]   On August 5, 2013, the State charged Love with Count I, resisting law

      enforcement (based on fleeing in a vehicle) as a class D felony; Count II,

      mistreatment of a law enforcement animal as a class A misdemeanor; and

      Count III, resisting law enforcement (based on forcibly resisting) as a class A

      misdemeanor.3


[5]   On August 10, 2015, the court held a jury trial at which Love represented

      himself pro se. The court heard testimony from South Bend Police Officers

      Daley, Howard, Schlegelmilch, Gray, and Sanchez. Each officer, with the

      exception of Officer Howard who was not present at the scene of Love’s arrest,




      3
       The State also charged Love with Count IV, operating a vehicle while intoxicated as a class A
      misdemeanor, but the charge was dismissed prior to trial.

      Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016                     Page 3 of 22
      testified that Love did not comply with the officers’ commands after he exited

      the van.


[6]   During the direct testimony of Officer Daley, the State introduced State’s

      Exhibit 4A, a DVD recording of the vehicular police pursuit that was recorded

      from Officer Daley’s police car. The court admitted the exhibit without

      objection, and it was played for the jury. Love cross-examined Officer Daley

      and introduced a DVD recording, Defendant’s Exhibit A, from the in-car

      camera of Officer Bilinski of the scene in the alley where Love was eventually

      stopped and arrested by the police. The court admitted the exhibit without

      objection, and it was played for the jury. Love’s exhibit shows that he exited

      the vehicle, raised his hands in the air, proceeded to place himself on all fours

      about five seconds after he exited the vehicle, and, after approximately ten

      additional seconds lay face down on the ground. The video depicts that, shortly

      thereafter, a struggle between the officers and Love ensued in which the officers

      used tasers and deployed a police dog to effect Love’s arrest.


[7]   Officer Daley testified that, as he saw Love exit the vehicle, officers were

      ordering Love to the ground and that Love was “ignoring them and paying

      them no attention whatsoever . . . .” Transcript at 81. He added that, as Love

      “continued to disregard the officers’ commands, a taser was deployed into his

      person to get him to stop walking away.” Id. at 82. Officer Schlegelmilch

      testified that when Love was outside the vehicle he was given “loud verbal

      commands to lay on the ground,” that Love was “completely uncooperative,”

      that Love “would not lay on the ground,” and that he then “deployed [his]

      Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 4 of 22
      taser.” Id. at 116. He stated that after he tased Love, Love snapped the taser

      wire, and that the dog was deployed. Officer Gray stated that Love “was not

      responding to their commands to get on the ground. At that point an officer

      deployed a taser.” Id. at 131. Officer Sanchez, who is a K-9 officer, testified

      that he deployed the dog because “the taser was ineffective,” that he perceived

      Love to be “very agitated and irritated with the police officers on [the] scene,”

      that Love was “not complying with [the] officers,” and that the dog bit Love on

      the forearm. Id. at 145-146. Officer Sanchez stated that after that, Love began

      to squeeze the dog’s upper chest and neck area, that he heard the dog “let out a

      yelp,” and that he struck Love “a couple times in the side of his torso” and

      “knee[d] [Love] in the head” in an effort to free the dog. Id. at 146-147. Officer

      Schlegelmilch also stated that he kicked Love three times to cause Love to

      release the dog, and that the third kick he delivered, which was directed at

      Love’s head, eventually caused Love to release the dog. When Officer Sanchez

      returned to his vehicle he noticed that the dog had a “bite ring” on top of its

      head. Id. at 148. Officer Gray testified he eventually placed Love in handcuffs

      but Love “refused to give his hands,” “he kept his hands tight by his body, and

      it was very difficult to get them out from under him and place him into police

      custody,” and that Love “was kicking his feet.” Id. at 133-134.


[8]   Love testified to his version of events. He stated that an officer approached his

      parked vehicle and told him to “get the F out of the car,” that he exited the

      vehicle, put his hands up, and lay face down on the ground. Id. at 234. He

      further testified that he put his hands up to be cuffed, that the officers then


      Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 5 of 22
       deployed a dog on him, that he was then tased and kicked by the officers, that

       the dog bit his arm, and that he tried only to protect himself from the dog. Id. at

       235.


[9]    The jury found Love guilty of Counts I-III as charged. At sentencing, the court

       entered a judgment of conviction on Count I as a class A misdemeanor rather

       than as a class D felony. For each of his class A misdemeanor convictions,

       Love was sentenced to consecutive one year sentences with all of the time

       suspended to supervised probation.


                                                      Discussion

[10]   The issue is whether the evidence is sufficient to support Love’s convictions for

       mistreatment of a law enforcement animal and resisting law enforcement as

       class A misdemeanors.4 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 reverse a conviction, however, if the record does not reveal

       substantial evidence of probative value and there is a reasonable doubt in the

       minds of reasonably prudent persons.” Clark v. State, 695 N.E.2d 999, 1002

       (Ind. Ct. App. 1998), reh’g denied, trans. denied.




       4
         Love also argues that the court erred by failing to instruct the jury on self-defense. However, because we
       conclude that the evidence is insufficient to support his convictions, we need not address Love’s argument on
       that issue. See Smith v. State, 943 N.E.2d 421, 423 n.1 (Ind. Ct. App. 2011).

       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016                     Page 6 of 22
[11]   Additionally, the Indiana Supreme Court has held:


               We recognize the rule that we may not weigh the evidence and
               may only review that evidence most favorable to the state to
               determine, on a sufficiency of the evidence question, whether we
               shall affirm or reverse the judgment of the trial court. Such
               appellate duty, of which we take cognizance, in far too many
               cases requires that we probe and sift the evidence. Thus, if as a
               result of our probing and sifting the evidence most favorable to
               the state, we determine that the residue of facts is so devoid of
               evidence of probative value and reasonable inferences adduceable
               therefrom, as to preclude guilt beyond a reasonable doubt, we
               should so declare. A failure to do so is a rejection of our duty as
               an appellate tribunal and tantamount to the enunciation of a rule
               that any evidence no matter how infinitesimal or inferences
               drawn therefrom, whether based on speculation or conjecture,
               would be sufficient to establish guilt beyond a reasonable doubt.
               This we are not inclined to do for to assume such a judicial
               posture, neglecting our appellate responsibility, would reduce the
               appellate process to an exercise in impotent and meaningless
               futility.


       Liston v. State, 252 Ind. 502, 511-512, 250 N.E.2d 739, 743-744 (1969).


[12]   At the time of the offense, Ind. Code § 35-46-3-11(a) provided that “[a] person

       who knowingly or intentionally . . . strikes, torments, injures, or otherwise

       mistreats a law enforcement animal . . . commits a class A misdemeanor.”

       (Subsequently amended by Pub. L. No. 158-2013, § 563 (eff. July 1, 2014); and

       Pub L. No. 168-2014, § 86 (eff. July 1, 2014)). To convict Love of mistreatment

       of a law enforcement animal, the State was required to prove that he “did

       knowingly strike or otherwise mistreat a law enforcement animal, to wit: Bacca,

       a police K-9 . . . .” Appellant’s Appendix at 17. At the time of the offense, Ind.

       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 7 of 22
       Code § 35-44.1-3-1(a)(1) provided that a defendant commits resisting law

       enforcement as a Class A misdemeanor when he “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[.]” (Subsequently amended by Pub. L. No. 158-2013, §

       509 (eff. July 1, 2014); Pub. L. No. 168-2014, § 80 (eff. July 1, 2014); and Pub.

       L. No. 198-2016, § 673 (eff. July 1, 2016)). To convict Love of resisting law

       enforcement as a class A misdemeanor, the State was required to prove beyond

       a reasonable doubt that Love “did knowingly and forcibly resist Officer

       Jonathan Gray, a law enforcement officer, by struggling with Officer Gray

       while he was lawfully engaged in his duties as a law enforcement officer.” Id.


[13]   Love argues that the “violence and force that occurred after the stop was

       gratuitously initiated by the police” and that his subsequent actions were lawful

       “efforts to protect himself from serious injury . . . and cannot form the basis of

       conviction for either Battery to a Law Enforcement Animal or Forcible

       Resistance of a Law Enforcement Officer.” Appellant’s Brief at 5. He contends

       that the video recording shows that he exited the vehicle and placed himself on

       the ground without the need of force by the officers and that his “actions

       toward the police dog were aimed solely at protecting himself from injury.” Id.

       at 7. Love’s position is that law enforcement used excessive force against him

       after he “voluntarily and peacefully surrendered himself.” Id. at 8. He states

       that “there was no need for officers to release a police dog on Mr. Love,

       electrocute him with multiple tasers, or kick him in the head,” and that his


       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 8 of 22
       convictions for mistreatment of a law enforcement animal and resisting law

       enforcement should be reversed due to the officers’ use of excessive force. Id.


[14]   The State’s position is that the evidence is sufficient to sustain Love’s

       convictions, that Love was noncompliant with the officers’ commands, and that

       his refusal “to obey the officer’s [sic] orders” resulted in the deployment of a

       dog and in Love’s being tased. Appellee’s Brief at 12. It states that Love struck

       the dog, squeezed it, and left a bite ring on the dog’s head, and that, after Love

       was tased and following the dog’s intervention, he refused to give Officer Gray

       his hands by keeping his hands and arms tight to his body before he was

       ultimately handcuffed. Regarding Love’s claim of excessive force, the State

       maintains that he failed to obey the officers’ orders, he was tased twice with no

       effect, when the taser failed the dog was deployed, and that because of Love’s

       resistance law enforcement acted reasonably to apprehend him.


[15]   When addressing claims of excessive force in the context of a challenge to the

       sufficiency of the evidence for resisting law enforcement, the general rule in

       Indiana is that “a private citizen may not use force in resisting a peaceful arrest

       by an individual who he knows, or has reason to know, is a police officer

       performing his duties regardless of whether the arrest in question is lawful or

       unlawful.” Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App. 2000) (quoting

       Casselman v. State, 472 N.E.2d 1310, 1315 (Ind. Ct. App. 1985)), reh’g denied,

       trans. denied. However, when an officer uses unconstitutionally excessive force

       in effecting an arrest, that officer is no longer lawfully engaged in the execution

       of his or her duty. Id. at 823.

       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 9 of 22
[16]   Claims that law enforcement officers have used excessive force in the course of

       an arrest of a free citizen are analyzed under the Fourth Amendment to the

       United States Constitution and its “reasonableness” standard. Graham v.

       Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871 (1989). Because the Fourth

       Amendment test of reasonableness is not capable of precise definition or

       mechanical application, its proper application requires careful attention to the

       facts and circumstances of each particular case, including the severity of the

       crime at issue, whether the suspect poses an immediate threat to the safety of

       the officers or others, and whether he is actively resisting arrest or attempting to

       evade arrest by flight. Id. at 396, 109 S. Ct. at 1872. The ‘reasonableness’ of a

       particular use of force must be judged from the perspective of a reasonable

       officer on the scene, “rather than with the 20/20 vision of hindsight.” Id., 109

       S. Ct. at 1872. However, the “reasonableness” inquiry in an excessive force

       case is an objective one; the question is whether the officers’ actions are

       “objectively reasonable” in light of the facts and circumstances confronting

       them, without regard to their underlying intent or motivation. Id. at 397, 109 S.

       Ct. at 1872.


[17]   The State must present evidence that an officer is lawfully engaged in the

       execution of his duties to support a conviction for resisting law enforcement.

       As touched on above, of particular importance in deciding this matter is what

       Defendant’s Exhibit A, a video recording from the in-car camera of Officer

       Bilinski, depicts and its impact at the appellate stage. The Indiana Supreme

       Court recently discussed the significance of video evidence in Robinson v. State,


       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 10 of 22
5 N.E.3d 362 (Ind. 2014). In Robinson, a sheriff’s deputy testified that he

observed a vehicle “drive off the right side, which was the south side of the

road, twice,” and that after the second incident he initiated a traffic stop. 5

N.E.3d at 364. A vehicle camera captured the thirty seconds prior to the stop.

Id. Joanna Robinson, the driver of the stopped vehicle, was arrested and

charged with operating a motor vehicle with a suspended license, possession of

marijuana, and operating a vehicle while intoxicated as class A misdemeanors

and operating with a BAC over .08 as a class C misdemeanor. Id. Robinson’s

counsel moved to suppress the evidence against her, arguing that the deputy

“did not have reasonable suspicion to justify the stop because Robinson ‘never

left her lane of traffic in any form,’” relying on the video taken by the deputy’s

vehicle camera. Id. The trial court denied Robinson’s motion, stating that it


        “reviewed the video on approximately ten occasions and cannot
        conclude from the video that the defendant’s vehicle actually left
        the roadway . . . but it does show the vehicle veering on two
        occasions onto the white fog line.” App. at 33. The trial court
        noted, however, that it was “quite possible that the officer’s
        actual visual observation of the defendant’s vehicle was superior
        to the video camera in his car.” App. at 33. After considering all
        of this evidence, the trial court concluded this case was “perhaps
        a closer call” than [State v. McCaa, 963 N.E.2d 24, 31 (Ind. Ct.
        App. 2012), which found reasonable suspicion for a traffic stop
        when the defendant drove “slowly and off of the roadway
        twice”], but that “the act of weaving onto the fog line, while not
        itself an illegal act, did give a trained police officer justification to
        stop and inquire further as to the driver’s condition.”


Id.


Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 11 of 22
[18]   On transfer, the parties disputed the significance of the video, in which

       Robinson observed that “the trial court conceded the video ‘did not clearly

       demonstrate that Robinson’s vehicle veered off the roadway . . . but speculated

       that the officer’s observations at the scene were superior to his in-car camera,’”

       and the State cautioned the Court “not to ‘rest [its] determination on minutia of

       an imperfect and rudimentary video.’” Id. at 365. The Court began its

       discussion declaring that “[w]hile technology marches on, the appellate

       standard of review remains constant,” which is to say that appellate courts “do

       not reweigh the evidence.” Id. The Court also observed that it did not believe

       “that the very act of reviewing video evidence constitutes impermissible appellate

       reweighing” and that such evidence is “a necessary part of the record on appeal,

       just like any other type of evidence.” Id. at 366. The Court found that the trial

       judge listened to the deputy at the suppression hearing, as well as other

       witnesses, and saw the video, and in its experience and expertise weighed the

       deputy’s testimony more heavily than the video, and the Court “decline[d]

       Robinson’s invitation to substitute [its] own judgment for that of the trial court

       and rebalance the scales in her favor.” Id. at 367.


[19]   The Court instructed that appellate courts may review video evidence like any

       other evidence in the record, but reiterated that they may not reweigh the

       evidence. A question therefore arises regarding the point at which reviewing

       video evidence, as part of our appellate duty to probe and sift the evidence most

       favorable to the State to determine whether substantial evidence of probative

       value exists, becomes impermissible reweighing of evidence. For help


       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 12 of 22
       answering that question, we find an opinion by the Court of Criminal Appeals

       of Texas, Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000),

       instructive.


[20]   In Carmouche, the court addressed the issue of whether the defendant consented

       to being searched, in which at trial Texas Ranger Dwayne Williams gave the

       following testimony:


               [RANGER WILLIAMS]: So when I walked— I went from there
               and walked up to Mr. Carmouche and asked him if he had any
               narcotics— or I asked him if I could search him. He looked over
               toward the trooper and said— pointed to him and said, “Well,
               he’s already searched me.”


                        I said, “Do you mind if I search you again?”


               He threw his hands up, said, “All right.” Turned around, put his
               hands on the car. I reached around to the crotch area where [the
               informant] told me it was at.


       10 S.W. 3d at 326, 331. Carmouche argued on appeal that he made no such

       gesture and did not give consent. Id. at 331.


[21]   In evaluating whether Carmouche consented to the search, the court observed

       “that the videotape from the patrol car’s camera does not support the testimony

       of Ranger Williams,” noting that “critical seconds of the tape surrounding the

       time of appellant’s ‘consent’ show a different sequence of events than what

       Williams described at trial.” Id. Specifically, the court noted that Carmouche

       was closely surrounded by four officers while his back was to the car, that a

       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 13 of 22
       voice told him to turn around and place his hands on the car, that “[o]nly after

       appellant has raised his hands, turned around and faced the car, can Williams

       be heard asking, ‘Mind if I pat you down again,’” and that “Williams’ ‘request’

       to search is made as he is reaching for the crotch area of appellant’s pants.” Id.

       at 332. The court also observed that no audible response by Carmouche is

       contained on the tape. Id.


[22]   The court noted the applicable standard of review, in which “as a general rule,

       the appellate courts, including this Court, should give almost total deference to

       a trial court’s determination of the historical facts that the record supports

       especially when the trial court’s findings are based on an evaluation of

       credibility and demeanor.” Id. It then stated that, “[i]n the unique

       circumstances of this case, however, we decline to give ‘almost total deference’

       to the trial court’s implicit findings,” noting that “the nature of the evidence

       presented in the videotape does not pivot ‘on an evaluation of credibility and

       demeanor’” and that, “[r]ather, the videotape presents indisputable visual

       evidence contradicting essential portions of Williams’ testimony.” Id. It ruled

       that “[i]n these narrow circumstances, we cannot blind ourselves to the

       videotape evidence simply because Williams’ testimony may, by itself, be read

       to support the Court of Appeals’ holding” and vacated a judgment of the Court

       of Appeals of Texas that Carmouche consented to the search. Id. at 333. This

       rule has since been stated that courts “give almost total deference to the trial

       court’s factual determinations unless the video recording indisputably

       contradicts the trial court’s findings.” State v. Houghton, 384 S.W.3d 441, 446


       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 14 of 22
       (Tex. App. 2012). See also U.S. v. Maddox, 549 F. App’x. 602 (8th Cir. 2014)

       (noting that the dashboard camera video does not present a clear picture and

       that accordingly it could not determine if the district court “clearly erred in

       crediting Officer Potter’s testimony and finding he had an objectively

       reasonable belief that Maddox violated the Arkansas careless driving statute”

       (citing United States v. Coleman, 700 F.3d 329, 334 (8th Cir. 2012) (noting that,

       on appeal, witness credibility findings are virtually unreviewable)), cert. denied,

       133 S. Ct. 2369 (2013)); U.S. v. Wiley, 493 F. App’x 481 (5th Cir. 2012) (noting

       that “the video recording fails to contradict the officer’s testimony” and

       “therefore, does not lead to a ‘definite and firm conviction’ that the district

       court erred in its factual finding that the officer first conducted a pat-down

       search for weapons before retrieving the ammunition”).


[23]   Turning to Defendant’s Exhibit A, a video recording from the in-car camera of

       Officer Bilinski, we observe that it unambiguously shows that Love exited the

       vehicle, put his hands up, and lay face down on the ground, demonstrating his

       almost immediate compliance with the officers’ requests. At trial, Love’s

       testimony matched what is depicted in the video when he testified that an

       officer approached his parked vehicle and told him to “get the F out of the car,”

       that he exited the vehicle, put his hands up, and lay face down on the ground.

       Transcript at 234. He further testified that he put his hands up to be cuffed, that

       the officers then deployed a dog on him, that he was tased and kicked by the

       officers, that the dog bit his arm, and that he tried only to protect himself from

       the dog. Id. at 235.


       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 15 of 22
[24]   In stark contrast, Officer Daley testified that, as he saw Love exit the vehicle,

       officers ordered Love to the ground, that Love was “ignoring them and paying

       them no attention whatsoever,” and that because Love “continued to disregard

       the officers’ commands, a taser was deployed into his person to get him to stop

       walking away.” Transcript at 81-82. The video indisputably contradicts Officer

       Daley’s testimony as it clearly shows that Love did not attempt to walk away

       and instead almost immediately lay on the ground. Likewise, Officer

       Schlegelmilch’s testimony that, after ordering Love to the ground, he was

       “completely uncooperative” and “would not lay on the ground” is indisputably

       contradicted by the video. Id. at 116. Officer Gray’s testimony that Love

       would not “get on the ground” and that an officer deployed a taser to gain his

       compliance is also contradicted by the video evidence. 5 Id. at 131.


[25]   The video also reveals that prior to the officers’ use of force, Love had not made

       threatening or violent actions towards the officers, but, in effecting the arrest,

       the officers nevertheless tased him twice and deployed a dog who bit him. We

       find that the particular use of force by the officers was not objectively

       reasonable in light of the facts and circumstances confronting them. See

       Graham, 490 U.S. at 397, 109 S. Ct. at 1872.




       5
         We note that the review of Defendant’s Exhibit A discussed in the dissent supports the conclusion that it
       indisputably contradicts the officers’ testimony. As discussed in the dissent, Love at the rear of the van “gets
       onto the ground” and “places his chin in the palm of his hand as if he is relaxing.” Supra at 21. Thus, the
       dissent acknowledges that it could not identify any forcible resistance in the video, and the officers’ testimony
       that Love would not lay on the ground and attempted to walk away necessitating the deployment of tasers
       and the police dog to stop him does not comport with the video evidence.

       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016                       Page 16 of 22
[26]   As was the case in Carmouche, under these narrow circumstances we cannot

       blind ourselves to the videotape evidence simply because the officers’ testimony

       may, by itself, support the guilty verdicts. Based upon the record, we cannot

       say that the officers were acting in the lawful performance of their duties or that

       Love was forcibly resisting when they tased Love and deployed the dog, and

       therefore the evidence is insufficient to support Love’s convictions for resisting

       law enforcement and mistreatment of a law enforcement animal. See Shoultz,

       735 N.E.2d at 823-825 (holding that a law enforcement officer who used

       unconstitutionally excessive force was no longer lawfully engaged in the

       execution of his duty and reversing the defendant’s conviction for resisting law

       enforcement). See also Aguirre v. State, 953 N.E.2d 593, 596-597 (Ind. Ct. App.

       2011) (reversing a conviction for forcibly resisting law enforcement where there

       was no evidence that the defendant was violent, threatening, or otherwise

       forcibly resistant towards the officer), trans. denied; Colvin v. State, 916 N.E.2d

       306, 309 (Ind. Ct. App. 2009) (reversing a conviction for forcibly resisting law

       enforcement where the officers testified that the defendant was not complying

       with the officers’ commands, and observing that “the officers had to use force to

       execute the arrest,” that the State did not present evidence that the defendant

       used force or was violent or threatening towards the officers, and that the

       defendant did not stiffen his arms or otherwise forcibly resist the officers), trans.

       denied.




       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 17 of 22
                                                    Conclusion

[27]   For the foregoing reasons, we reverse Love’s convictions for mistreatment of a

       law enforcement animal and resisting law enforcement as class A

       misdemeanors.


[28]   Reversed.


       Baker, J., concurs.


       Pyle, J., dissents with separate opinion.




       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 18 of 22
                                                   IN THE
           COURT OF APPEALS OF INDIANA

       Royce Love,                                                Court of Appeals Case No.
                                                                  71A03-1511-CR-2009
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellees-Plaintiff.




       Pyle, Judge dissenting.


[29]   If I were presented with the script of the latest Star Wars movie, The Force

       Awakens, before it was released, and asked whether it was a good story, I could

       probably make an independent assessment concluding that it was excellent.

       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016           Page 19 of 22
       However, I would not be in the best position to make that judgment. Quite

       simply, I did not see the movie. I did not see the mind-blowing special effects; I

       did not see the facial expressions of the actors giving meaning to the story; I did

       not hear the humor, passion, and sorrow that filled the voices of the actors; and

       I did not hear John Williams’s legendary soaring symphony. In fact, my

       limited perspective would impact the accuracy of my conclusion. As a result, if

       you really want to know whether the script is good, you need to go to the

       movie.


[30]   Likewise, at the appellate level, my colleagues and I are asked to make

       judgments based upon the reading of a script, a transcript. However, we are

       often not in the best position to make decisions about which witnesses to

       believe or which piece of evidence is most important. This is true because we

       do not attend the movie; we are not present at the trial or hearing. It is

       precisely for this reason that when a defendant challenges his or her conviction

       on appeal, our standard of review consistently warns that we will not reweigh

       the evidence or judge the credibility of witnesses. Robinson v. State, 5 N.E.3d

       362 (Ind. 2014).


[31]   Jurors are in the best position to make determinations about who and what to

       believe. They get to see the facial expressions of witnesses; they get to hear the

       pain or remorse in the voices of victims, family members, and defendants; they

       get to watch body language; and they get to make judgments based on the

       intonation in a witness’s voice. None of these critical decision making factors

       are reflected in an appellate record.

       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 20 of 22
[32]   My able colleagues assert that the record in this case is devoid of evidence and

       reasonable inferences that would support Love’s convictions for mistreatment

       of a law enforcement animal and resisting law enforcement. My colleagues

       believe that the video: (1) shows that Love complied which the officer’s

       instructions; and (2) contradicts the testimony of the officers. I respectfully

       disagree.


[33]   After a five-minute chase through the streets of South Bend, the video shows

       Love coming to a stop after pulling into an alley. At gunpoint, the officers

       order him out of the van, onto the ground, and tell Love not to move. (Tr. 81,

       Defendant’s Exhibit A). Instead, Love gets out of the van and starts walking to

       its rear. After reaching the rear of the van, Love then gets onto the ground. He

       does not remain still; Love’s hands are out in front making gestures. Love then

       places his chin in the palm of his hand as if he is relaxing. At this point, the

       officers take action to arrest and gain his compliance. Because the video

       camera became obscured, the video does not show the ensuing altercation. The

       only evidence admitted to determine what occurred next was the testimony of

       witnesses.


[34]   In my view, there was ample evidence from which a jury could reasonably infer

       beyond a reasonable doubt that Love interfered with a law enforcement animal

       and resisted law enforcement. It is the jury’s role to resolve any real or

       perceived conflicts in the evidence. In fact, this jury was instructed as follows:

       (1) “You are the only judges of the weight of both the physical evidence and the

       testimony – the believability, or “credibility” – of each of the witnesses. . . . [;]”

       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 21 of 22
       (2) “You should try to fit the evidence to the presumption that the defendant is

       innocent. . . . [;]” (3) “Furthermore, you should evaluate the testimony of each

       witness in light of all relevant physical evidence, and the reasonable inferences

       drawn from such physical evidence. . . . [;]” (4) “In weighing the evidence to

       determine what or whom you will believe, you should use your own

       knowledge, experience and common sense gained from day to day living. . . .

       [;]” and (5) “You should give the greatest weight to that evidence which

       convinces you most strongly of its truthfulness.” (App. 65) (emphasis added).


[35]   Love exercised his right to have the State’s case measured by a jury of his peers.

       He exercised his right to represent himself, testified, and presented evidence.

       (Defendant’s Exhibit A). The State, bearing the burden of proof, presented its

       evidence through witnesses and exhibits. At the conclusion of the trial, the

       jury, properly instructed, considered all of the evidence and decided that the

       State had proved its case beyond a reasonable doubt. Cf. Burton v. State, 978

       N.E.2d 520 (Ind. Ct. App. 2012) (conviction for resisting law enforcement was

       overturned because excessive force instruction was tendered and refused despite

       video showing clear evidence of abusive police conduct). Because I believe that

       my colleagues are substituting their judgment for that of the jury, I dissent. I

       would affirm the jury’s verdict. Why? Quite simply, I was not at the movie.




       Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016   Page 22 of 22
