                                                                               FILED
                                                                           Jul 20 2017, 9:08 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Michael P. DeArmitt                                        Curtis T. Hill, Jr.
Columbus, Indiana                                          Attorney General of Indiana
                                                           Larry D. Allen
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Dustin A. Evans,                                           July 20, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           03A04-1612-CR-2911
        v.                                                 Appeal from the Bartholomew
                                                           Superior Court
State of Indiana,                                          The Honorable James D. Worton,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           03D01-1511-F5-5914



Riley, Judge.




Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017                           Page 1 of 14
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Dustin Evans (Evans), appeals his conviction for escape,

      a Level 5 felony, Ind. Code § 35-44.1-3-4(a); and unlawful possession of a

      syringe, a Level 6 felony, I.C. § 16-42-19-18(a).


[2]   We affirm.


                                                     ISSUES
[3]   Evans presents two issues on appeal, which we restate as the following:


      (1) Whether the trial court committed a fundamental error in instructing the

      jury; and

      (2) Whether the trial court abused its discretion by ordering consecutive

      sentences.


                       FACTS AND PROCEDURAL HISTORY
[4]   On November 17, 2015, at approximately 3:00 a.m., Officer Daniel Garvey

      (Officer Garvey) of the Edinburgh Police Department was dispatched to

      investigate the report of a suspicious man who was lurking in front of a

      residence. Upon arriving at the residence, Officer Garvey recognized the

      suspicious man as Evans due to previous encounters. Officer Garvey also knew

      that Evans had an active arrest warrant. At that point, Officer Garvey activated

      his lights and attempted to stop Evans. Evans fled, but was later stopped and

      apprehended by another officer who was nearby in his patrol vehicle. Evans

      was carrying a backpack, and pursuant to a search of the bag, Officer Garvey

      Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017   Page 2 of 14
      found a plastic pouch containing methamphetamine, a knotted sock containing

      five syringes, cotton balls, and a spoon with white residue. Officer Raina

      Bostock (Officer Bostock), who was at the scene, transported Evans to the

      Bartholomew County Jail. Before Evans was booked, he complained that he

      was not feeling well, and he notified the officers that he had swallowed three

      bags of heroin. Based on the complaints, Officer Bostock transported Evans to

      Columbus Regional Hospital. After receiving the necessary treatment, Evans

      was cleared by the medical personnel, and Officer Bostock secured Evans in

      handcuffs and placed him in her patrol vehicle. Evans’ legs were not restrained.


[5]   On his return to the jail, Evans lay down on the backseat and began vomiting

      on the floorboard. Upon seeing this, Officer Bostock pulled over, exited, and

      she moved Evans so that his head would be positioned outside of the vehicle.

      After Evans stopped vomiting, she placed Evans in an upright position and

      strapped his seatbelt. As Officer Bostock was preparing to merge into traffic,

      she heard loud banging noises. When she turned around, she saw Evans

      kicking the passenger door with his legs. Officer Bostock put the vehicle into

      park and exited the vehicle. By this time, the door was open and Evans was

      running down the street. As she pursued Evans, she radioed for assistance.

      After an hour of searching in the surrounding areas, the officers abandoned the

      search. The record shows that Evans was rearrested several days thereafter.


[6]   On November 20, 2015, the State filed an Information, charging Evans with

      escape, a Level 5 felony; and unlawful possession of a syringe, a Level 6 felony.

      On October 4, 2016, Evans’ jury trial was held. At the close of the evidence,

      Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017   Page 3 of 14
       the jury found Evans guilty as charged. On November 22, 2016, the trial court

       conducted Evans’ sentencing hearing, and it thereafter sentenced Evans to

       consecutive executed sentences of six years for the escape conviction, and two

       years for the unlawful possession of a syringe.


[7]    Evans now appeals. Additional facts will be provided as necessary.


                                DISCUSSION AND DECISION
                                                I. Jury Instructions

[8]    Evans argues that the trial court committed a fundamental error when

       instructing the jury. Specifically, Evans contends the jury instructions relating

       to the escape charge did not properly convey the appropriate mens rea

       requirements.


[9]    The manner of instructing a jury is left to the sound discretion of the trial court.

       Patton v. State, 837 N.E.2d 576, 579 (Ind. Ct. App. 2005). When reviewing the

       jury instructions, we consider them as a whole and in reference to each other.

       Id. We will not reverse the ruling of the trial court unless the jury instructions,

       taken as a whole, misstate the law or mislead the jury. Id. Before a defendant

       is entitled to a reversal, he must affirmatively show that the erroneous

       instruction prejudiced his substantial rights. Id.


[10]   We note, and Evans aptly points out, that he failed to object to the trial court’s

       jury instructions relating to the escape charge. A defendant who fails to object

       to a jury instruction at trial waives any challenge to that instruction on appeal,

       unless giving the instruction was fundamental error. Wright v. State, 730 N.E.2d
       Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017   Page 4 of 14
       713, 716 (Ind. 2000). To avoid waiver, Evans argues that the presumed

       instructional errors constitute fundamental error. Fundamental error is error

       that represents a blatant violation of basic principles rendering the trial unfair to

       the defendant, thereby depriving the defendant of fundamental due process.

       Ritchie v. State, 809 N.E.2d 258, 273 (Ind. 2004) (citation omitted). The error

       must be so prejudicial to the rights of the defendant as to make a fair trial

       impossible. Id. In determining whether a claimed error denies the defendant a

       fair trial, we consider whether the resulting harm or potential for harm is

       substantial. Id. The element of harm is not shown by the fact that a defendant

       was ultimately convicted. Id. at 273-74. Rather, it depends upon whether the

       defendant’s right to a fair trial was detrimentally affected by the denial of

       procedural opportunities for the ascertainment of truth to which he would have

       been entitled. Id. at 274.


[11]   Indiana Code Section 35-44.1-3-4(a) states, “A person . . . who intentionally flees

       from lawful detention commits escape, a Level 5 felony” (emphasis added).

       Final jury instructions number 5 and 15 both indicated that the crime of escape

       as charged in Count I is defined by statute as “[A] person who knowingly or

       intentionally flees from lawful detention.” (Appellant’s App. Vol. II, p. 57, 86)

       (emphasis added). Evans argues the alternative mens rea of ‘knowingly’ is not

       mentioned in Indiana Code Section 35-44.1-3-4(a). While the State agrees the

       improper mens rea of knowingly, as added in final jury instructions number 5

       and 15, was a misstatement of the law, the State posits that the instructional

       errors did not result in an unfair trial since the intent element was not a central

       Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017   Page 5 of 14
       issue at Evans’ trial. In support of its claim, the State cites Winkleman v. State,

       22 N.E.3d 844, 852 (Ind. Ct. App. 2015), trans. denied, where we held that an

       “error in an instruction on mens rea does not rise to the level of fundamental

       error where the defendant’s mens rea was not a central issue at trial.”


[12]   In determining the instant issue, we find Ramsey v. State, 723 N.E.2d 869, 871-

       73 (Ind. 2000), instructive. In Ramsey, our supreme court found no

       fundamental error in the following jury instruction:


               A person attempts to commit murder when, acting with the
               culpability required for commission of Murder, he engages in
               conduct that constitutes a substantial step toward commission of
               Murder; which is to knowingly or intentionally kill another
               human being. The crime of attempted murder is a Class A felony.


               To convict the defendant of Attempted Murder under Count I,
               the State must prove each of the following elements:


               1. The defendant


               2. knowingly


               3. with specific intent to kill


               4. engaged in conduct


               5. which was a substantial step toward the commission of the
               crime of Murder; which is to knowingly or intentionally kill
               another human being.



       Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017   Page 6 of 14
               If the State fails to prove each of these elements, you should find
               the defendant not guilty.


               If the State does prove each of these elements beyond a
               reasonable doubt, you should find the defendant guilty of the
               crime of Attempted Murder, a Class A felony.


       Id. at 871. The supreme court concluded:


               The trial court should not have included the word “knowingly”
               in either the first sentence or the enumerated elements. But this
               language was not objected to and we narrowly conclude that no
               fundamental error has been established. First, despite the
               instruction’s defects, the trial court enumerated “specific intent to
               kill” among the elements that the State was required to prove
               beyond a reasonable doubt. Second, the trial court read the jury
               the charging information which contains the proper mens rea.
               Because the correct mens rea was enumerated both as an element
               in the charging instrument and as an element that the State was
               required to prove beyond a reasonable doubt, we believe that the
               jury instructions, taken as a whole, sufficiently informed the jury
               of the State’s burden of proving that the Defendant specifically
               intended to kill the victim.


       Id. at 873.


[13]   In the instant case, the trial court instructed the jury as follows:

               PRELIMINARY INSTRUCTION NO. 5


               The crime of Escape charged in Count [I] is defined by statute as
               follows:




       Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017      Page 7 of 14
        A person who knowingly or intentionally flees from lawful
        detention commits [e]scape, a Level 5 felony.


(Appellant’s App. Vol. II p. 57). In addition, the trial court’s Final Instruction

No. 15 stated:

        The crime of [e]scape charged in Count [I] is defined by law as
        follows:


        A person who knowingly or intentionally flees from lawful
        detention commits [e]scape, a Level 5 felony.


        Before you may convict the Defendant, the State must have
        proved each of the following beyond a reasonable doubt:


        1. The Defendant


        2. Knowingly or intentionally


        3. Fled from lawful detention


        If the State failed to prove each of these elements beyond a
        reasonable doubt, you must find the Defendant not guilty of
        [e]scape, a Level 5 felony, as charged in Count [I].


(Appellant’s App. Vol. II, p. 86). Evans argues that it is clear from reading

these two instructions, and comparing them to Indiana Code section 35-44.1-3-

4(a), that the trial court erroneously instructed the jury about the requisite mens

rea required to convict Evans of the escape charge. We disagree.




Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017   Page 8 of 14
[14]   Comparing the present case to Ramsey, assuming ‘knowingly’ was not included

       in the jury instructions with respect to the escape charge, we find that the escape

       instructions in the present case sufficiently informed the jury of the proper mens

       rea which the State was required to prove beyond a reasonable doubt. We

       recognize that the correct mens rea, intent to flee, was listed during the State’s

       closing argument, final instructions to the jury, and charging information. We

       first note that in the State’s closing arguments, the State expressed that [Evans]

       intentionally fled . . . from [] Officer [Bostock].” (Tr. Vol. II, p. 81). The State

       impressed upon the jury that “the issue that you have to decide is whether or

       not he fled from lawful detention, and it’s pretty clear that he did . . . Evans was

       in lawful detention and he fled.” (Tr. Vol. II, p. 87). Secondly, while

       instructing the jury, the trial court advised that

               A person engages in conduct “intentionally” if, when he engages
               in the conduct, it is his conscious objective to do so. If a person
               is charged with intentionally causing a result by his conduct, it
               must have been his conscious objective not only to engage in the
               conduct but also to cause the result.


       (Tr. Vol. II, p. 90). Finally, the trial court read to the jury, the charging

       information which contained the proper mens rea—i.e., “on or about November

       17, 2015, in Bartholomew County, State of Indiana, [] Evans, did intentionally

       flee from lawful detention.” (Tr. Vol. II, p. 97).


[15]   Although the improper knowingly language is problematic, we find that the

       instructional error did not render a fair trial impossible for Evans. See Sanders v.

       State, 764 N.E.2d 705, 711-12 (Ind. Ct. App. 2002). Upon our reading of the
       Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017     Page 9 of 14
       escape jury instructions and also in the context of all the information given to

       the jury, we conclude that the trial court’s escape instructions informed the jury

       that the State was required to prove beyond a reasonable doubt that Evans

       intentionally fled from lawful custody. Finding that Evans has failed to

       establish that he was deprived of a fair trial as a result of the challenged jury

       instructions, we conclude that the error did not rise to the level of fundamental

       error.


                                             II. Consecutive Sentences

[16]   Evans also contends that the trial court abused its discretion in imposing

       consecutive sentences, arguing that it was prevented from doing so because his

       convictions for escape and unlawful possession of a syringe arose from a single

       episode of criminal conduct.


[17]   In general, a trial court cannot order consecutive sentences in the absence of

       express statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006).

       “‘A sentence that is contrary to or violative of a penalty mandated by statute is

       illegal in the sense that it is without statutory authorization.’” Id. (quoting

       Rhodes v. State, 698 N.E.2d 304, 307 (Ind. 1998)). “An appellate claim of

       sentencing error is subject to review for abuse of trial court discretion; reversal

       results ‘only if there has been a manifest abuse of discretion.’” Reynolds v. State,

       657 N.E.2d 438, 440 (Ind. Ct. App. 1995) (quoting Fugate v. State, 608 N.E.2d

       1370, 1374 (Ind. 1993)).




       Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017   Page 10 of 14
[18]   Indiana Code section 35-50-l-2(c)(2) provides that except for statutory crimes of

       violence—which escape and unlawful possession of a syringe are not—“the

       total of the consecutive terms of imprisonment . . . to which the defendant is

       sentenced for felony convictions arising out of an episode of criminal conduct

       shall not exceed the advisory sentence for a felony which is one (1) class of

       felony higher than the most serious of the felonies for which the person has

       been convicted.” The term “episode of criminal conduct” has been statutorily

       defined as “offenses or a connected series of offenses that are closely related in

       time, place, and circumstance.” I.C. § 35–50–1–2(b). “Whether certain

       offenses constitute a single episode of criminal conduct is a fact-sensitive

       inquiry to be determined by the trial court before it is subject to appellate

       review. Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002).


[19]   Evans claims that the events for his crimes constituted a single episode and cites

       to Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. App. 2000). trans. denied. In Purdy,

       the defendant went to the house of his former girlfriend despite a court’ order

       not to have contact with her. Id. at 1092. The defendant pounded on her door

       and threatened to kick it in. Id. The former girlfriend, who did not have a

       telephone in her house, tried to run next door to use the telephone at the Village

       Pantry. Id. The defendant, however, grabbed her by the shoulders, bruising

       her. Id. When the police arrived, and attempted to handcuff the defendant, he

       fought back—kicked and spat at the officers, and attempted to flee. Id. As the

       officers placed the defendant in a vehicle, he threatened to kill one of them. Id.

       The State charged the defendant with felony intimidation, resisting law

       Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017   Page 11 of 14
       enforcement, and battery. Id. The Purdy court held that the defendant’s actions

       constituted a single episode because “all of his actions took place during a

       relatively short period of time and all were related to his assault on [his former

       girlfriend].” Id. at 1093.


[20]   The State, in turn, claims that the Purdy case is not instructive because unlike in

       Purdy, where the events took place during a relatively short period of time, the

       facts of the instant case demonstrate a break in the sequence of events. In

       support, the State cites to our decision in Newman v. State, 690 N.E.2d 735 (Ind.

       Ct. App. 1998). In Newman, police officers were dispatched to a tavern in

       response to a burglary report. Id. at 736. When they arrived, the defendant was

       sitting in his car in the tavern parking lot. Id. The officers stopped in front of

       the defendant’s vehicle and ordered him three times to get out of his car. Id.

       The defendant refused to get out of his car and sped away from the police. Id.

       The police officers pursued the defendant’s vehicle until he ultimately crashed

       into a cement wall. Id. Following the crash, the officers discovered cigarettes

       and money taken by the defendant from the tavern. Id. They placed the

       defendant under arrest and summoned an ambulance to transport the defendant

       to a hospital for the treatment of the injuries he received in the crash. Id. After

       the defendant and the officers arrived at the hospital, hospital personnel

       requested that the defendant not be handcuffed in order that he be properly

       treated. Id. When no officer was present in the treatment room, the defendant

       managed to flee down the hospital corridor as hospital personnel yelled for

       assistance. Id. Police officers recaptured the defendant and subsequently

       Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017   Page 12 of 14
       transported him to jail. Id. The defendant pled guilty to burglary, theft, escape,

       resisting law enforcement, and driving while suspended. Id. The Newman court

       found that the defendant’s actions constituted three separate episodes: burglary

       and theft, being the first distinct episode; resisting law enforcement and fleeing,

       as the second distinct episode; and escape in the hospital, as the third distinct

       episode. Id. at 737. The Newman court concluded that each of these episodes

       was sufficiently unrelated and each could have been described independently

       without referring to the specific details of the other episodes. Id. As such, the

       Newman court held that the defendant’s crimes were committed during three

       distinct episodes of criminal conduct. Id.


[21]   Here, Evans was sentenced to six years for the escape offense and two years for

       the unlawful possession of a syringe, with sentences to be served consecutively.

       Notwithstanding Evans’ contention that his offenses constituted a single

       episode of criminal conduct, we find that like the defendant in Newman, and

       unlike the defendant in Purdy, Evans engaged in distinct episodes of criminal

       conduct. Specifically, following a search of his backpack after his arrest in the

       early morning of November 17, 2015, Evans was found in possession of

       syringes. Evans was then transported to the county jail, and prior to being

       booked, Evans complained that he was not feeling well. Based on these

       complaints, Evans was transported by Officer Bostock to Columbus Regional

       Hospital. After Evans received treatment and was cleared by the hospital

       personnel, Officer Bostock placed handcuffed Evans in the back of her patrol

       car. On his return trip to the county jail, Evans violently kicked the door,

       Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017   Page 13 of 14
       which made Officer Bostock stop the vehicle. Moments later, Evans effectively

       kicked the door open and escaped. In light of the foregoing, we conclude that a

       full account of Evans’s individual crimes can be given without reference to the

       other. Because the crimes of unlawful possession of syringes and escape were

       two separate criminal episodes, the trial court did not abuse its discretion when

       it ordered the sentences for each offense to be served consecutive to one

       another.


                                              CONCLUSION
[22]   Based on the foregoing, we conclude that there was no fundamental error in the

       trial court’s jury instruction for Evans’ escape charge; and the trial court did not

       abuse its discretion in ordering consecutive sentences for Evans’ offenses.


[23]   Affirmed.


[24]   Najam, J. and Bradford, J. concur




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