MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 Jul 31 2019, 11:03 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
estoppel, or the law of the case.                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Randall J. Hammond                                        Curtis T. Hill, Jr.
Leonard, Hammond, Thoma & Terrill                         Attorney General of Indiana
Fort Wayne, Indiana
                                                          Lauren A. Jacobsen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shannon W. Kester,                                        July 31, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-293
        v.                                                Appeal from the Allen Superior
                                                          Court
State of Indiana,                                         The Honorable Wendy W. Davis,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          02D04-1809-F6-1171



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019                       Page 1 of 9
[1]   Shannon W. Kester appeals his convictions of Level 6 felony resisting law

      enforcement 1 and Class C misdemeanor reckless driving. 2 He presents one

      issue on appeal, which we restate as whether the State presented sufficient

      evidence to support his convictions. We affirm.



                                   Facts and Procedural History
[2]   During the early morning hours of September 24, 2018, Detective Marc

      Deshaies and Sergeant Gary Hensler of the City of Fort Wayne Police

      Department were conducting surveillance in the area of Foster’s Bar and Grill.

      Detective Deshaies was in plain clothes and drove an unmarked vehicle.

      Sergeant Hensler was in full uniform and drove an unmarked vehicle. They

      observed a Chevy Tahoe parallel park along the sidewalk just north of the bar’s

      entrance. A man in a blue shirt exited the Tahoe, stood around the vehicle for a

      few minutes, and then entered the bar. The man in the blue shirt then returned

      to his vehicle, entered through the driver’s side door, remained in the vehicle for

      twenty seconds, then walked to the rear of the vehicle. A white male

      approached the man in the blue shirt from a parking lot north of the bar. The

      two did not say anything to each other, but they did exchange something in a




      1
          Ind. Code § 35-44.1-3-1.
      2
          Ind. Code § 9-21-8-52.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019   Page 2 of 9
      hand to hand transaction. The white male walked back in the direction of the

      north parking lot and the man in the blue shirt walked back into the bar.


[3]   Detective Deshaies believed the hand to hand transaction to be a narcotics

      exchange and notified other officers in the area. Seconds later, Detective

      Deshaies and Sergeant Hensler observed a vehicle 3 exit the north parking lot.

      The vehicle drove southbound on Clinton Street, made a U-turn onto Lafayette

      Street, and passed Detective Deshaies’ vehicle. Detective Deshaies identified

      the driver to be the white male involved in the drug transaction, radioed the

      vehicle’s direction, and asked other officers to intercede with a traffic stop.

      Detective Deshaies recognized the driver but could not immediately recall his

      name. At trial, Detective Deshaies identified Kester as that driver.


[4]   Sergeant Hensler pulled out behind Kester as he travelled northbound on

      Lafayette Street and followed Kester. Kester turned eastbound on Dalman

      Avenue and then southbound on Warsaw Street. Sergeant Hensler continued

      eastbound on Dalman but radioed Detective Matt Foote to follow Kester

      southbound on Warsaw Street.


[5]   Detective Foote was stationed near Foster’s Bar and Grill during the

      surveillance operation. He followed Sergeant Hensler and Kester northbound

      on Lafayette Street and then eastbound on Dalman Avenue. Detective Foote




      3
        Detective Deshaies testified the vehicle was a “black Grand Marquis.” (Tr. Vol. I at 12.) Sergeant Hensler
      testified the vehicle was a “silver colored Mercury.” (Id. at 22.) Detective Foote testified the vehicle was a
      “grey in color 2003 Mercury Grand Marquis.” (Id. at 32.)

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019                       Page 3 of 9
      followed Kester when he turned southbound on Warsaw. He continued to

      follow Kester and activated his emergency lights. Kester did not immediately

      stop, so Detective Foote “chirped” his siren. (Tr. Vol. I at 34.) Kester started

      to slow down as if he was going to pull over to the side of the road, but then he

      rapidly accelerated. With Detective Foote in pursuit, Kester reached speeds of

      approximately sixty to seventy miles per hour in areas with speed limits of

      thirty to thirty-five miles per hour. Detective Foote testified that Kester “ran

      multiple traffic control signs, was fish tailing around corners almost side

      swiping cars, drove the wrong way on a one way street at least two times I

      believe, ran off the roadway and into a ditch, came out of the ditch, drove

      recklessly down an alley.” (Id. at 35-36.) During the pursuit, Detective Foote’s

      breaks failed. He had to use the emergency break to slow his car and pulled

      into a gas station. Detective Foote radioed that he was no longer involved in

      the pursuit.


[6]   After Sergeant Hensler stopped following Kester at the intersection of Dalman

      and Warsaw, Sergeant Hensler executed a U-turn to try to get back to the area

      of the pursuit. He heard over the radio that Detective Foote had lost visual

      contact with the vehicle and proceeded to the general area where Detective

      Foote last saw the vehicle and located it. The vehicle was empty when

      Sergeant Hensler found it. He notified dispatch of the plate number and

      learned the vehicle was registered to Kester.


[7]   Officer Cory Troyer and Officer Stephanie Reid responded to the pursuit. They

      were near the area where Kester’s vehicle was found, and Officer Troyer

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019   Page 4 of 9
      observed a male in dark clothing run across the street. They followed the man

      through yards and down an alley. Officer Troyer exited the vehicle and yelled

      “stop police.” (Id. at 46.) The man fled from Officer Troyer, and Officer

      Troyer continued to yell “stop police.” (Id.) Officer Troyer learned the suspect

      was Shannon Kester, and he yelled “Shannon get on the ground.” (Id.) Kester

      slowed down, began to put his hands out and stoop down, but then he stood up

      and continued to run away. Officer Troyer caught up to Kester after Kester fell

      down a couple times. He warned Kester to stay on the ground or he would use

      his taser. Kester got back up and began to run again, and Officer Troyer

      deployed his taser. Officer Troyer and Officer Reid then apprehended Kester.


[8]   The State charged Kester with Level 6 felony resisting law enforcement and

      Class C misdemeanor reckless driving. The trial court held a bench trial on

      December 13, 2018. The court found Kester guilty of both charges. The court

      sentenced Kester to two-and-a-half-years incarceration for the resisting law

      enforcement charge, with 183 days executed and the remainder suspended to

      probation. The court also sentenced Kester to an executed term of twenty days

      for the reckless driving charge. The court ordered the two sentences to run

      concurrently.



                                 Discussion and Decision
[9]   In assessing whether there was sufficient evidence to support a conviction, we

      consider the probative evidence in the light most favorable to the verdict. Burns

      v. State, 91 N.E.3d 635, 641 (Ind. Ct. App. 2018). “It is the fact-finder’s role,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019   Page 5 of 9
       not that of appellate courts, to assess witness credibility and weigh the evidence

       to determine whether it is sufficient to support a conviction.” Drane v. State, 867

       N.E.2d 144, 146 (Ind. 2007). “Reversal is appropriate only when no reasonable

       fact-finder could find the elements of the crime proven beyond a reasonable

       doubt. Thus, the evidence is not required to overcome every reasonable

       hypothesis of innocence and is sufficient if an inference may reasonably be

       drawn from it to support the verdict.” Burns, 91 N.E.3d at 641 (internal citation

       omitted).


                                    Resisting Law Enforcement
[10]   A person commits resisting law enforcement if the person “knowingly or

       intentionally: . . .flees from a law enforcement officer after the officer has, by

       visible or audible means, including operation of the law enforcement officer’s

       siren or emergency lights, identified himself or herself and ordered the person to

       stop.” Ind. Code § 35-44.1-3-1. The offense is a Level 6 felony if the person

       uses a vehicle to commit the offense. Id.


[11]   Kester argues the State failed to present sufficient evidence that he was driving

       the vehicle involved in the police chase. He notes neither Detective Deshaies

       nor Sergeant Hensler saw him get into the Grand Marquis. Kester also notes

       an inconsistency in the officers’ testimony about the color of the vehicle

       involved in the police chase, as Detective Deshaies testified the vehicle was

       black, Sergeant Hensler stated the vehicle was a silver, and Detective Foote

       indicated the vehicle was grey.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019   Page 6 of 9
[12]   However, both Detective Deshaies and Sergeant Hensler identified Kester as

       the driver of the Grand Marquis. After the Grand Marquis made a U-turn onto

       Lafayette Street, it passed Detective Deshaies’ vehicle going the opposite

       direction, such that Detective Deshaies could easily see the driver. Detective

       Deshaies testified the white male he observed driving the Grand Marquis was

       the same white male he had observed in the hand to hand transaction. At trial,

       Detective Deshaies identified Kester as the white male driver. Sergeant Hensler

       also testified that Kester was involved in the hand to hand transaction and that

       he was the individual driving the Grand Marquis. Kester was the registered

       owner of the Grand Marquis, and Officer Troyer apprehended Kester near

       where the vehicle was abandoned. The State presented sufficient evidence to

       prove Kester was the driver of the Grand Marquis.


[13]   Five different officers involved in the surveillance, pursuit, and apprehension of

       Kester testified at trial. While there is an inconsistency in the testimony

       regarding the color of the vehicle, it is the province of the trier of fact to resolve

       inconsistencies in witness testimony. Embrey v. State, 989 N.E.2d 1260, 1268

       (Ind. Ct. App. 2013). We cannot say the testimony was so contradictory and

       unsupported by circumstantial evidence that no reasonable fact finder would

       believe it. See Smalley v. State, 732 N.E.2d 1231, 1236 (Ind. Ct. App. 2000) (“It

       is well settled that it is the jury’s exclusive prerogative to weigh conflicting

       evidence . . . and thus we will not interfere with the jury’s decision.”).

       Therefore, we hold the State presented sufficient evidence to support Kester’s

       conviction for Level 6 felony resisting law enforcement. See Mason v. State, 944


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019   Page 7 of 9
       N.E.2d 68, 71 (Ind. Ct. App. 2011) (holding there was sufficient evidence

       defendant resisted law enforcement when he used a vehicle to flee from officers

       responding to a burglary), trans. denied.


                                             Reckless Driving
[14]   A person commits reckless driving if the person drives at such an unreasonably

       high rate of speed as to endanger the safety or property of others. Ind. Code §

       9-21-8-52. Detective Foote testified the Grand Marquis drove at nearly twice

       the legal limit in a residential area, ran multiple traffic control signs, went the

       wrong way down a one-way street, ran off the road, and almost side swiped

       other vehicles. And, as we held above, the testimony of Detective Deshaies and

       Sergeant Hensler demonstrates Kester was driving that car. Consequently, the

       State presented sufficient evidence to support Kester’s conviction for reckless

       driving. See Crussel v. State, 29 N.E.3d 746, 751 (Ind. Ct. App. 2015) (holding

       sufficient evidence supported defendant’s conviction for reckless driving when

       he drove more than thirty-five miles per hour over the speed limit on a dark

       road with cross streets and houses along it).



                                               Conclusion
[15]   The State presented sufficient evidence to support Kester’s convictions of

       resisting law enforcement and reckless driving. Therefore, we affirm.


       Affirmed.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019   Page 8 of 9
Mathias, J., and Brown, J., concur.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019   Page 9 of 9
