                                                                              FILED
                                                                         Nov 21 2017, 9:16 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ruth Ann Johnson                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
Matthew D. Anglemeyer                                     Jodi Kathryn Stein
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathaniel Thrash,                                         November 21, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1603-CR-494
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable David Hooper,
Appellee-Plaintiff.                                       Magistrate
                                                          Trial Court Cause No.
                                                          49G25-1509-F6-34723



Riley, Judge.




Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017                       Page 1 of 21
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Nathaniel Thrash (Thrash), appeals his conviction for

      two Counts of resisting law enforcement, as a Class A misdemeanor, and as a

      Level 6 felony, Ind. Code § 35-44.1-3-1(a)(1).


[2]   We affirm.


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


      (1) Whether the trial court abused its discretion by admitting certain evidence;


      (2) Whether the State presented sufficient evidence to support Thrash’s Level 6

      felony resisting law enforcement conviction; and


      (3) Whether Thrash’s conviction for two Counts of resisting law enforcement

      violated the prohibition against double jeopardy under the Indiana

      Constitution.


                      FACTS AND PROCEDURAL HISTORY
[4]   At approximately 7:00 p.m. on September 29, 2015, Indianapolis Metropolitan

      Police Department officers Christopher Cooper (Officer Cooper) and Derek

      Jackson (Officer Jackson) were dispatched to an apartment building located at

      3640 North Meridian Street in Indianapolis, Indiana. Upon arriving, the

      officers encountered a woman who identified herself as Thrash’s ex-girlfriend.

      Thrash’s ex-girlfriend was visibly upset and she explained to the officers that


      Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 2 of 21
      Thrash was not supposed to be there, and she believed Thrash had a pending

      warrant of arrest. Moments later, the officers made eye contact with Thrash,

      and saw him run west in the common hallway and toward the back of the

      building. Thrash, however, did not exit the apartment building.


[5]   Thrash’s ex-girlfriend allowed the officers inside the building, and the officers

      pursued Thrash in the direction he ran. When the officers reached the end of

      the hallway, they observed a stairwell leading to dark hallway basement that

      had numerous locked doors. While going down to the basement, the officers

      had their guns drawn and flashlights on. In addition, the officers loudly

      announced their presence by stating, “POLICE!” (Transcript p. 44). While

      Officer Jackson was searching the laundry room at the base of the staircase,

      Officer Cooper proceeded down the narrow hallway. There, Officer Cooper

      came across Thrash standing in a dark corner. Thrash’s hands were in his coat

      pockets. Officer Cooper yelled several times, “[S]how me your hands!” but

      Thrash did not comply. (Tr. p. 76). Upon hearing the commotion in the back,

      Officer Jackson joined Officer Cooper. Both officers ordered Thrash, on

      multiple occasions to show them his hands, but Thrash did not obey their

      commands. As such, Officer Cooper holstered his gun, approached Thrash,

      and forcefully grabbed his right arm in an attempt to remove Thrash’s hands

      from his coat pocket. Officer Jackson did the same for Thrash’s left arm.

      Thrash, however, flexed his muscles and jerked his arms away. Based on

      Thrash’s resistance, Officer Cooper effectuated a “leg sweep,” which brought

      Thrash down to the ground. (Tr. p. 79). While lying on the ground, Thrash


      Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 3 of 21
      refused to remove his hands from underneath his body. The officers bent over

      and restrained Thrash’s hands. As Officer Jackson got Thrash off the ground,

      he saw Officer Cooper bent over and Officer Cooper was experiencing pain in

      his back. Thrash thereafter voiced to Officer Jackson that he was sorry for

      resisting arrest, and for Officer Cooper’s injury.


[6]   On September 30, 2015, the State filed an Information, charging Thrash with

      Count I, resisting law enforcement, a Level 6 felony; and Count II, resisting law

      enforcement, a Class A misdemeanor. A jury trial was held on January 26,

      2016. On the morning of Thrash’s jury trial, the trial court conducted a

      suppression hearing pursuant to Thrash’s motion to exclude the officers’

      hearsay testimony regarding his ex-girlfriend’s statement that Thrash had a

      pending warrant of arrest. Both Officers Cooper and Jackson testified, and

      reiterated the hearsay statement over Thrash’s objection. At the close of the

      suppression hearing, Thrash’s counsel expressed to the trial court that he had

      no issue with the officers’ hearsay testimony, so long as their testimonies left

      out the warrant aspect. Thrash’s counsel was concerned that the “warrant

      aspect” would be “too toxic,” and was “worried the jury is going to hear that

      [Thrash] has a warrant and just shut down.” (Suppression Tr. p. 27).

      Following Thrash’s argument, the trial court ruled as follows:


              Now Officers, [I] need you both listen to me very carefully, State
              already said what you’re going to be allowed to say. I’m going to
              order over the Defense objection on a limiting instruction. When
              the jury is in here and you’re testifying you can say that she said
              she doesn’t want him here. . . .


      Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 4 of 21
        ****


        And that she told you she thinks he has a warrant. Alright. We
        can’t get into her head while she’s not here, so the fact that she
        said he has a warrant I’m not going to even say that that’s true.
        So you can say that she expressed to you that she thought he had
        a warrant. Okay. I don’t want to hear a word about wanted for
        escape. I don’t want to hear a word about anything else that she
        said or I will mis-try (sic) this thing. Alright. Now this is a pretty
        close call, but I’m using my discretion. State, I’m going to order
        you to prepare that limiting instruction. I’m going to order that
        that be given as well. We’re showing [Thrash’s] objection.
        Don’t forget to object during trial to preserve it, Defense. Don’t
        forget to object during trial, too, when we get to that point. So be
        very careful, [o]fficers. Because I am, again, using my discretion
        under the rules of evidence to let some things in here but it is, it is
        concerning. Okay.


(Suppression Tr. p. 28). After the jury was empaneled and sworn in, Thrash’s

trial proceeded. Officer Cooper testified that he had been dispatched to

Thrash’s ex-girlfriend’s building to investigate a disturbance call. Officer

Cooper then stated what Thrash’s ex-girlfriend had reported to him, but

Thrash’s counsel interjected. During a side bar, Thrash’s counsel renewed his

objection regarding what Thrash’s ex-girlfriend reported as hearsay. Upon the

conclusion of the side bar, the trial court overruled Thrash’s objection and it

admonished the jury as follows:


        Ladies and Gentleman (sic), the officer is about to talk about a
        witness who is not here and is not subject to cross examination.
        You’re only to consider what the witness says to show why the
        officer did what he did. You are not to consider whether what
        she said is being offered by the State to prove the truthfulness of

Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 5 of 21
              what she said. You’re only to consider it to show why the
              officers did what they did. With that admonishment[,] I will
              allow the State to ask the question over Defense objection.


      (Tr. p. 40). Officer Cooper subsequently testified that after he encountered

      Thrash’s ex-girlfriend, she stated that Thrash “was inside the apartment

      building and she thinks he has a warrant.” (Tr. p. 40). Officer Cooper

      described how Thrash resisted arrest, and that he was injured as result of

      Thrash’s conduct of resisting arrest. Similarly, Officer Jackson testified that

      when he met Thrash’s ex-girlfriend outside the apartment building, “she said

      that her ex-boyfriend [,Thrash,] was in the building. He wasn’t supposed to be

      there and she thinks he may have had a warrant.” (Tr. p. 75). Officer Jackson

      correspondingly testified about Thrash’s acts of resistance, and he stated that

      Thrash “expressed that he was sorry that he resisted” and “was sorry that

      Officer Cooper had gotten hurt.” (Tr. p. 82). At the close of the evidence, the

      jury returned a guilty verdict on both Counts of resisting law enforcement. On

      February 17, 2016, the trial court conducted a sentencing hearing. At the close

      of the hearing, the trial court sentenced Thrash to executed concurrent

      sentences of 730 days with 670 days suspended for the Level 6 felony

      conviction, and 365 days, with 305 days suspended for the Class A

      misdemeanor conviction.


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




      Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 6 of 21
                               DISCUSSION AND DECISION
                                          I. Admission of the Evidence

[8]    Thrash argues that the trial court abused its discretion by admitting the officers’

       testimonies regarding his ex-girlfriend’s statement that he possibly had a

       pending warrant of arrest. Thrash argues that the statements were inadmissible

       hearsay.


[9]    A trial court has broad discretion in ruling on the admissibility of evidence, and,

       on review, we will disturb its ruling only on a showing of abuse of discretion.

       Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000). When

       reviewing a decision under an abuse of discretion standard, we will affirm if

       there is any evidence supporting the decision. Id. A claim of error in the

       admission or exclusion of evidence will not prevail on appeal unless a

       substantial right of the party is affected. Ind. Evidence Rule 103(a). In

       determining whether an error in the introduction of evidence affected a

       defendant’s substantial rights, we assess the probable impact of the evidence on

       the jury. Sparkman, 722 N.E.2d at 1262.


[10]   Hearsay is an out-of-court statement offered for “the truth of the matter

       asserted,” and it is generally not admissible as evidence. Ind. Evidence Rule

       801(c)(2), 802. “Whether a statement is hearsay will most often hinge on the

       purpose for which it is offered.” Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)

       (quoting United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998)). The State

       contends that the officers’ hearsay testimony was offered for the purpose of


       Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 7 of 21
       describing the police investigation. We have held that out-of-court statements

       made to law enforcement are non-hearsay if introduced primarily to explain

       why the investigation proceeded as it did. See Patton v. State, 725 N.E.2d 462,

       464 (Ind. Ct. App. 2000) (finding children’s out-of-court statements that a man

       was inside a convenience store admissible to show why the police officer

       entered the building).


[11]   Our supreme court explained the purpose and dangers of course-of-

       investigation testimony in Blount:


               Although course-of-investigation testimony may help prosecutors
               give the jury some context, it is often of little consequence to the
               ultimate determination of guilt or innocence. The core issue at
               trial is, of course, what the defendant did (or did not do), not why
               the investigator did (or did not do) something. Thus, course-of-
               investigation testimony is excluded from hearsay only for a
               limited purpose: to bridge gaps in the trial testimony that would
               otherwise substantially confuse or mislead the jury. . . Indeed,
               such testimony is of little value absent a direct challenge to the
               legitimacy of the investigation. . . There is a risk the jury will rely
               upon the out-of-court assertion as substantive evidence of guilt—
               rather than for the limited purpose of explaining [the] police
               investigation—and the defendant will have no chance to
               challenge that evidence through cross-examination. . .


       Blount, 22 N.E.3d at 565-66 (internal citations omitted). The Blount court

       continued to state that for the above reasons, “we must pay careful attention to

       the purpose for which an out-of-court statement is offered. The ultimate

       inquiry is: Was the out-of-court statement used primarily to show the truth of

       its content, constituting inadmissible hearsay, or merely to explain subsequent

       Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 8 of 21
       police action, excluded from hearsay?” Id. To answer this question, the Blount

       court relied on the three-part test expressed in Craig v. State, 630 N.E.2d 207,

       211 (Ind.1994): First, the court is to consider whether the challenged hearsay

       statement asserts a fact susceptible of being true or false. Craig, 630 N.E.2d at

       211. Next, the court considers the evidentiary purpose for the proffered

       statement. Id. If the evidentiary purpose is to prove the fact asserted, and the

       statement is neither from a witness nor from a party as described in Indiana

       Evidence Rule 801(d) and none of the hearsay exceptions apply, the statement

       is hearsay and a timely objection should be sustained. Id. Finally, if the

       proponent of the statement urges admission for a purpose other than to prove

       the truth, the court should consider whether the fact to be proved is relevant to

       some issue in the case, and whether the danger of unfair prejudice that may

       result from its admission outweighs its probative value. Id.


[12]   Thrash argues that his ex-girlfriend’s out-of-court statement to the officers that

       she believed Thrash had a warrant is an assertion susceptible of being true or

       false. Turning to the first question articulated in Craig, we answer it in the

       affirmative. As in Craig, the State contends that the statement’s purpose was to

       document the course of police investigation, that is a “purpose other than to

       prove a fact which is asserted.” Id. Thus, we consider the last criteria in Craig:

       “Is the fact to be proved under the suggested purpose for the statement relevant

       to some issue in the case, and does any danger of prejudice outweigh its

       probative value?” Id.




       Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 9 of 21
[13]   In Hernandez v. State, 785 N.E.2d 294, 298 (Ind. Ct. App. 2003), trans. denied, we

       determined the relevance of evidence of “course of police work” testimony was

       slight when the genesis of the investigation was not relevant to any contested

       issue in the case. We held, however, that the prejudicial impact was great

       where the defendant was charged with promoting prostitution and the

       challenged testimony indicated the police began their investigation because they

       had received complaints about prostitution connected with the business. Id.

       Similarly, we conclude that in the case before us, Thrash’s ex-girlfriend out-of-

       court statement that Thrash had a warrant had prejudicial impact. Here, both

       officers would have accomplished their goal of testifying why they pursued

       Thrash by only reiterating Thrash’s ex-girlfriend’s statement that Thrash was

       not meant to be inside her apartment building. As correctly noted by Thrash,

       the out-of-court statement by his ex-girlfriend did not provide evidence of

       Thrash’s guilt to any of the resistance charges against him, and the reason the

       police pursued Thrash was not a contested issue at trial.


[14]   Although Thrash’s claim satisfies the Craig test, it fails on harmless error. In the

       instant case, during the State’s examination-in-chief, following Officer Cooper’s

       hearsay testimony as to why he pursued Thrash on the scene, the trial court

       issued a limiting instruction to the jury to consider the officers’ hearsay

       statement regarding Thrash having a pending warrant of arrest, for their urged

       non-hearsay purpose rather than for their truth. Our court presumes that a jury

       follows the instructions that it is given. See R.T. v. State, 848 N.E.2d 326, 332

       (Ind. Ct. App. 2006), trans. denied. Thrash makes no claim that the jury did not


       Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 10 of 21
       follow the trial court’s instructions. Further, there was ample evidence to

       support Thrash’s two convictions of resisting law enforcement, such as refusing

       to remove his hands from his coat pockets, putting his hand underneath his

       body, and injuring an officer during the struggle. Thus, the erroneous

       admission of the statement regarding Thrash having a possible warrant was

       harmless.


                                         II. Sufficiency of the Evidence

[15]   Thrash claims that the State presented insufficient evidence to support his

       conviction for his Level 6 felony resisting law enforcement. When reviewing a

       claim of insufficient evidence, it is well established that our court does not

       reweigh evidence or assess the credibility of witnesses. Walker v. State, 998

       N.E.2d 724, 726 (Ind. 2013). Instead, we consider all of the evidence, and any

       reasonable inferences that may be drawn therefrom, in a light most favorable to

       the verdict. Id. We will uphold the conviction “‘if there is substantial evidence

       of probative value supporting each element of the crime from which a

       reasonable trier of fact could have found the defendant guilty beyond a

       reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind.

       2004)).


[16]   Subsection (a) of section 35-44.1-3-1 sets out the acts that constitute the crime of

       resisting law enforcement:


               A person who knowingly or intentionally:




       Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 11 of 21
        (1) 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;


        (2) forcibly resists, obstructs, or interferes with the authorized
        service or execution of a civil or criminal process or order of a
        court; or


        (3) 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;


I.C. § 35-44.1-3-1(a). The last sentence of subsection (a) states that resisting law

enforcement is a Class A misdemeanor “except as provided in subsection (b).”

Subsection (b) then identifies a variety of circumstances that enhance the

seriousness of the crime, and therefore the sentencing range:


        The offense under subsection (a) is a:


        (1) Level 6 felony if:


                 (A) the offense is described in subsection (a)(3) and the
                 person uses a vehicle to commit the offense; or


                 (B) while committing any offense described in subsection
                 (a), the person draws or uses a deadly weapon, inflicts
                 bodily injury on or otherwise causes bodily injury to
                 another person, or operates a vehicle in a manner that
                 creates a substantial risk of bodily injury to another
                 person;



Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 12 of 21
                        ****


       I.C. § 35-44.1-3-1. Thrash argues that evidence of Officer Cooper’s injury was

       not sufficient to support his Level 6 felony because there was no evidence that

       he inflicted the alleged injury. Thrash and the State direct us to three cases

       regarding causation of bodily injury while resisting arrest: Whaley v. State, 843

       N.E.2d 1 (Ind. Ct. App. 2006), trans. denied; Smith v. State, 21 N.E.3d 121 (Ind.

       Ct. App. 2014); and Moore v. State, 49 N.E.3d, 1095, 1108 (Ind. Ct. App. 2016).


[17]   In Whaley, Whaley, attempted to prevent police officers from handcuffing him

       when he was lying on the ground by placing his arms underneath his body.

       Whaley, 843 N.E.2d at 5. Two officers had to hit his forearms in order to bring

       his arms behind his back to handcuff him, and both officers injured their wrists

       and hands in the process. Id. Because Whaley had caused these injuries, his

       conviction for resisting law enforcement was elevated to a Class D felony. Id.

       at 10. At trial and on appeal, Whaley argued that his conviction should not

       have been elevated to a Class D felony because the officers themselves caused

       their injuries when they hit him. Id. We upheld Whaley’s conviction,

       concluding that the officers’ injuries “were directly related to and caused by

       Whaley’s resisting arrest.” Id. at 11.


[18]   In Smith, Smith, also resisted being handcuffed. Smith, 21 N.E.3d at 123. As a

       result, an officer “forcefully put all [his] body weight onto [Smith’s] body[.]”

       Id. The officer told Smith to put her hands behind her back or he would “take

       [her] to the ground,” but she still did not comply. Id. The officer then tried to

       Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 13 of 21
       give Smith a “knee strike” by “apply[ing] some pain to . . . a nerve that [ran] to

       the muscle of [her] leg,” but that did not have the desired effect, so the officer

       “pulled her arm . . . possibly as hard as [he] could [and] [they] ended up on the

       ground.” Id. In this process, the officer received lacerations to his knuckles and

       fingertips. Id. As a result, Smith was charged with, and convicted of, resisting

       arrest as an elevated Class D felony based on the officer’s injuries. Id. at 124.

       On appeal, Smith argued that she did not cause the officer’s injuries and that

       her conviction should not have been enhanced to a felony. We agreed with

       Smith that she was a “passive part of the encounter” and “took no actions

       toward” the officer. Id. at 125. We also stated that we did not “believe a

       person who is thrown to the ground necessarily ‘inflicts’ or ‘causes’ an injury

       suffered by the person who throws her to the ground.” Id. As a result, we

       concluded that Smith did not cause the officer’s injuries and that her conviction

       should not have been elevated to a felony. Id. at 126. We distinguished this

       conclusion from our decision in Whaley by noting that “unlike Whaley, Smith

       did not create a scenario in which [the officer’s] only option in handcuffing her

       was to remove her hands from a location in which he could not reach.” Id.


[19]   Finally, in Moore v. State, 49 N.E.3d 1095, 1108 (Ind. Ct. App. 2016), a police

       officer fell down while engaged in a foot pursuit and was injured. Id. at 1099.

       The Moore court noted that, in Whaley, Whaley was the direct cause of the

       officers’ injuries because he left the officers no other choice but to hit his arms

       and that “this meant that the officers’ injuries were a highly foreseeable result of

       Whaley’s actions” and that, “[i]n contrast, in Smith, the officer had other

       Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 14 of 21
options, and his decision to take Smith ‘to the ground’ and injure himself was

not as foreseeable.” Id. at 1108. In light of the Whaley and Smith cases, we held

that a defendant’s acts of resistance must be a proximate cause of the injury,

and not merely a contributing cause. Id. at 1107-08. We noted, a contributing

cause is “a factor that—though not the primary cause—plays a part in

producing a result.” Id. at 1107 (quoting Abney v. State, 766 N.E.2d 1175, 1178

(Ind. 2002)). We described that


        [a] finding of proximate cause embodies a value judgment as to
        the extent of the physical consequences of an action for which the
        actor should be held responsible. Accordingly, “proximate cause
        questions are often couched in terms of ‘foreseeability;’ an actor
        is not held responsible for consequences which are
        unforeseeable.” It follows that, where an intervening cause is
        claimed as superseding the defendant’s actions, the intervening
        cause must be unforeseeable to relieve the defendant of criminal
        liability.


Id. at 1107–08 (quoting Gibbs v. State, 677 N.E.2d 1106, 1109 (Ind. Ct. App.

1997)). Applying the proximate cause standard, the majority in Moore found

the evidence was insufficient to prove that the defendant’s actions caused the

arresting officer’s injuries. Id. at 1108. The court noted that the officer would

not have been injured if he had not pursued the defendant, but reasoned “that

fact is only sufficient to prove that Moore was a contributing cause of the

injury” and that “[t]he actual cause of [the officer’s] fall [was] not clear from the

record.” Id. at 1108.




Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 15 of 21
[20]   Thrash claims the facts of his case are akin to the Smith case, and he suggests he

       played a minimal role leading to Officer Cooper’s back injury, thus, we should

       reverse his Level 6 felony resisting law enforcement conviction. Thrash

       additionally makes a similar argument to that in Moore. Specifically, Thrash

       argues that the


               exact cause of Officer Cooper’s injuries are unclear from the
               record, but one thing is clear–Officer Cooper caused them
               himself. And Officer Cooper had other options besides throwing
               Thrash to the ground. A taser would likely have been even more
               effective than a strength contest, and would have required little to
               no physical effort from Officer Cooper.”


       (Appellant’s Br. p. 22). We disagree with Thrash. Under the circumstances of

       the case, we find that Thrash’s case is more akin to the Whaley case and is

       distinguishable from Smith and Moore. In terms of proximate cause as

       enunciated in the Whaley case, Thrash created a scenario which directedly

       produced Officer Cooper’s injuries. After Officer Cooper effected a leg sweep

       which made Thrash fall, he and Officer Jackson followed Thrash to the ground.

       Like the defendant in Whaley, Thrash continued to resist arrest from both

       officers by refusing to remove his hands/arms from underneath his body.

       When the struggle was over, Officer Cooper was unable to stand and he

       experienced back pain. By his own admission, Thrash stated that he “was sorry

       that Officer Cooper had gotten hurt.” (Tr. p. 82). At Thrash’s jury trial, Officer

       Cooper testified that prior to his encounter with Thrash, he had not experienced

       any lower back pain. Officer Cooper further testified that he later visited a


       Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 16 of 21
       clinic and was diagnosed with a “sprain” and was off work for about a week.

       (Tr. p. 69). Based on the Whaley holding, and upon our review of the testimony

       most favorable to the Level 6 felony conviction, we conclude that the State

       presented sufficient evidence to prove that Thrash was the proximate cause of

       Officer Cooper’s back injury which was inflicted or otherwise caused while

       Thrash resisted arrest.


                                              III. Double Jeopardy

[21]   Lastly, Thrash claims that his two convictions for resisting law enforcement

       violate the Double Jeopardy Clause under the Indiana Constitution.

       Specifically, he argues that the convictions violate the actual-evidence test.

       Whether convictions violate double jeopardy is a question of law which we

       review de novo.” Id. Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App.

       2012).


[22]   Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall

       be put in jeopardy twice for the same offense.” The Indiana Supreme Court has

       determined that two or more offenses constitute the same offense for double

       jeopardy purposes “if, with respect to either the statutory elements of the

       challenged crimes or the actual evidence used to obtain convictions, the

       essential elements of one challenged offense also establish the essential elements

       of another challenged offense.” Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct.

       App. 2013) (citing Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)).




       Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 17 of 21
[23]   In order to find a double jeopardy violation under the actual evidence test, a

       reviewing court must conclude there is a reasonable possibility that the

       evidentiary facts used by the factfinder to establish the essential elements of an

       offense for which the defendant was convicted or acquitted may also have been

       used to establish all the essential elements of a second challenged offense.

       Garrett v. State, 992 N.E.2d 710, 722–23 (Ind.2013). “Application of this test

       requires the court to ‘identify the essential elements of each of the challenged

       crimes and to evaluate the evidence from the jury’s perspective. . .’” Lee v. State,

       892 N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v. State, 761 N.E.2d 831, 832

       (Ind. 2002)). In determining the facts used by the fact-finder, “it is appropriate

       to consider the charging information, jury instructions, . . . arguments of

       counsel” and other factors that may have guided the jury’s determination. Lee,

       892 N.E.2d at 1234 (citing Spivey, 761 N.E.2d at 832, and Richardson, 717

       N.E.2d at 54 n.48).


[24]   Thus, under the actual evidence test, “it is not sufficient merely to show that the

       same evidence may have been used to prove a single element of two criminal

       offenses.” Henderson v. State, 769 N.E.2d 172, 177 (Ind. 2002). Rather, “in

       order for there to be a double jeopardy violation under the actual-evidence test

       the evidentiary footprint for all the elements required to prove one offense must

       be the same evidentiary footprint as that required to prove all the elements of

       another offense.” Berg v. State, 45 N.E.3d 506, 510 (Ind. Ct. App. 2015).


[25]   First, we note that there is no requirement that police officers inform a person

       that he is under arrest before that person can legally resist. Only when a person

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       “flees” law enforcement is there a requirement that law enforcement make

       some form of outward communication with a person before that person can

       resist. See I.C. § 35-44.1-3-1(a)(3). For the Class A misdemeanor, the State did

       not advance a theory that Thrash’s resistance was by fleeing, but rather alleged

       and presented evidence that Thrash forcibly resisted, obstructed, or interfered

       with law enforcement officers while the officers were lawfully engaged in the

       execution of their duties pursuant to Indiana Code Section 35-44.1-3-1(a)(1).

       For the Level 6 felony as charged, the State alleged that while Thrash was

       resisting arrest, he inflicted bodily injury or otherwise caused injury to Officer

       Cooper. See I.C. § 35-44.1-3-1(b)(1)(B).


[26]   Our review of the preliminary instructions shows that the trial court instructed

       the jury to find Thrash guilty of the Class A misdemeanor if the State

       established beyond a reasonable doubt that Thrash forcibly resisted arrest from

       Officers Cooper and Jackson. For the felony charge, the trial court required an

       additional showing by the State that Thrash had inflicted bodily injury to

       Officer Cooper while resisting arrest. During trial, the State panned out details

       of Thrash’s act of resistance where he ran from the officers, hid in a dark

       basement, refused to remove his hands from his pockets after several

       commands, and broke free from the officers by jerking his arms away. In

       addition, the State presented evidence that Officer Cooper was injured while

       trying to subdue Thrash, who was resisting arrest, thereby supporting the Level

       6 felony charge.




       Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017   Page 19 of 21
[27]   Within the context of multiple resisting law enforcement convictions, we have

       held that “[a] defendant may be convicted of multiple counts of resisting law

       enforcement when he has committed more than one of the acts enumerated

       under [Indiana Code Section 35-44.1-3-1].” Williams v. State, 755 N.E.2d 1183,

       1186 (Ind. Ct. App. 2001). Thus, we have upheld two convictions for resisting

       law enforcement when one involved the defendant’s act of fleeing from officers

       under Indiana Code Section 35-44.1-3-1(a)(3), and the other involved the

       defendant’s infliction of bodily injury upon an officer while resisting under

       Indiana Code Section 35-44.1-3-1(b)(1)(B). Id.


[28]   Although Thrash may have acted with a common purpose, the two Counts for

       resisting arrest involved discrete elements and were proved by discrete evidence.

       Specifically, the misdemeanor conviction was based on Thrash’s actions of

       resisting arrest from Officers Cooper and Jackson, and the felony conviction

       was based on Officer Cooper’s back injury which was inflicted by Thrash’s

       conduct of resisting arrest. Accordingly, we conclude that Thrash’s multiple

       convictions for resisting arrest are not barred by the prohibition against double

       jeopardy. See Williams, 755 N.E.2d at 1186.


                                             CONCLUSION
[29]   Based on the above, we conclude that the trial court did not abuse its discretion

       by admitting hearsay testimony by the officers regarding Thrash having a

       possible warrant of arrest; there was sufficient evidence to support Thrash’s

       Level 6 felony resisting law enforcement; and there is no double jeopardy

       violation in Thrash’s convictions for two Counts of resisting law enforcement.
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[30]   Affirmed.


[31]   Robb, J. and Pyle, J. concur




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