MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                                Dec 26 2018, 7:59 am

regarded as precedent or cited before any                                CLERK
court except for the purpose of establishing                         Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Brian A. Karle                                          Curtis T. Hill, Jr.
Ball Eggleston, PC                                      Attorney General of Indiana
Lafayette, Indiana
                                                        Ellen H. Meilaender
                                                        Supervising Deputy Attorney
                                                        General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Matthew J. Gilbert,                                     December 26, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1194
        v.                                              Appeal from the Clinton Circuit
                                                        Court
State of Indiana,                                       The Honorable Bradley K. Mohler,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        12C01-1709-F5-950



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1194 | December 26, 2018            Page 1 of 9
                                         Statement of the Case
[1]   Matthew J. Gilbert appeals his conviction for escape, as a Level 5 felony,

      following a bench trial.1 Gilbert raises a single issue for our review, which we

      restate as whether the State presented sufficient evidence to show that he was

      under lawful detention when he committed his alleged escape. We affirm.


                                   Facts and Procedural History
[2]   On September 3, 2017, law enforcement officers in Clinton County responded

      to a report of a gunshot inside a residence. In particular, Stephanie Creasy, an

      occupant of the residence, reported that Gilbert was inside, was “suicidal,” and

      “wanted to go out in a blaze of glory.” Tr. at 9. According to the information

      available to the responding officers, Gilbert was “in possession [of] several

      firearms as well as body armor and . . . possibly had long range capabilities.”

      Id. at 8.


[3]   Responding officers staged themselves at a reasonable distance from the

      residence and attempted to communicate with Gilbert, who was still inside the

      residence. Officers then saw Gilbert exit the residence and proceed toward a

      nearby wooded area. The officers were concerned that he was “familiar with

      the property” while they were not, and that he could “sneak around and

      possibly . . . ambush . . . law enforcement.” Id. at 11.




      1
        Gilbert does not appeal his contemporaneous convictions for intimidation, as a Level 6 felony, or resisting
      law enforcement, as a Class A misdemeanor.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1194 | December 26, 2018                  Page 2 of 9
[4]   Officers located Gilbert inside the woods, and Clinton County Sheriff’s Deputy

      Dennis Tillman gave “loud commands for him to stop.” Id. at 12. Instead,

      Gilbert fled back toward his residence. Deputy Tillman pursued on foot and

      “grabbed a hold of” Gilbert; Gilbert then grabbed “one of the trees . . . to

      prevent” himself from “being detained.” Id. at 13. In the ensuing scuffle,

      Gilbert attempted to grab Deputy Tillman and was “in close proximity to

      Deputy Tillman’s weapons.” Id. Mulberry Deputy Town Marshall Jeremy

      Rushton, who was nearby, discharged his taser into Gilbert to regain control of

      the situation. Deputy Rushton then ordered Gilbert to put his hands behind his

      back, but Gilbert refused to comply. Deputy Rushton tased Gilbert again, after

      which officers were able to secure Gilbert in handcuffs.


[5]   Pursuant to local policy for suicide calls, officers escorted Gilbert to EMS

      providers on the scene for those providers to determine if “there’s any need to

      go further.” Id. at 42. However, Gilbert “refused all medical treatment” on the

      scene, denied that he was suicidal, and “didn’t even want the [taser] probes

      removed from him . . . .” Id. at 14. Due to his refusal to be assessed at the

      scene, Clinton County Sheriff’s Lieutenant Ronald Blackwell transported

      Gilbert to a local hospital “for evaluation by an ER doctor” and to have the

      doctor determine “whether or not the subject needs to be detained for an

      emergency detention order.” Id. at 42.


[6]   In the emergency room, Gilbert again refused to cooperate or be evaluated.

      When the treating doctor suggested that officers might need to proceed with an

      emergency-detention order in light of Gilbert’s noncooperation, Gilbert got

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1194 | December 26, 2018   Page 3 of 9
      “amped up and didn’t wan[t to] be in the ER” and said “he was go[ing to] start

      destroying things.” Id. at 43. Lieutenant Blackwell then took Gilbert out of the

      emergency room and into the ambulance bay with Clinton County Sheriff’s

      Deputy D.A. Sturgis and a hospital security officer, Cameron Carlson.

      Lieutenant Blackwell then called the local prosecutor to determine whether to

      release Gilbert “without knowing what his mental status was” or to “go ahead

      and arrest him for resisting law enforcement.” Id. at 43. Lieutenant Blackwell

      later clarified that the concern “with simply arresting him at that point was that

      he could bond right out without receiving any evaluation or any help.” Id. at

      50.


[7]   Gilbert “understood” that he “was in detention” and “not free to go” while at

      the hospital. Id. at 51, 60. Nonetheless, after Lieutenant Blackwell had

      dropped him off at the ambulance bay, Gilbert “immediate[ly] bolt[ed] . . . to

      the doorway” and “attempted to plow through still handcuffed . . . .” Id. at 58.

      After Gilbert had fled ten to fifteen feet, Deputy Sturgis and Carlson

      reapprehended him. Gilbert than began to “verbally abuse” Carlson. Id. at 59.


[8]   The State charged Gilbert with escape, as a Level 5 felony; intimidation (of

      Carlson), as a Level 6 felony; and resisting law enforcement, as a Class A

      misdemeanor. The State’s charge for escape was based on Gilbert fleeing from

      “lawful detention” at the hospital. Appellant’s App. Vol. 2 at 6. The State’s

      charge for resisting law enforcement was based on Gilbert’s resisting of Deputy

      Tillman at the residence “and/or” Deputy Sturgis at the hospital. Id. at 8.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1194 | December 26, 2018   Page 4 of 9
[9]    In the State’s ensuing closing argument to the court at trial, the prosecutor

       argued that the evidence, which included the testimony of each of the above

       officers, showed that Gilbert had “resisted” Deputy Tillman in the woods at the

       residence. Tr. at 68. The prosecutor then argued that, while Gilbert was “[s]till

       detained” at the hospital, Gilbert “decide[d] to get up and run.” Id. In rebuttal,

       the prosecutor clarified that Gilbert “was getting arrested for resisting [at the

       residence]. So he was in detention [at the hospital]. He was in lawful detention

       when he chose to leave from that lawful detention.” Id. at 70. The trial court

       specifically found Gilbert guilty of resisting law enforcement based on his

       resistance of Deputy Tillman at the residence. Id. at 72. The court then also

       found Gilbert guilty of escape and intimidation and entered judgment of

       conviction and sentence accordingly. This appeal ensued.


                                      Discussion and Decision
[10]   Gilbert appeals his conviction for escape, as a Level 5 felony. Although Gilbert

       frames his argument on appeal otherwise, this appeal challenges the sufficiency

       of the evidence supporting his conviction. As our Supreme Court has stated:


               When an appeal raises “a sufficiency of evidence challenge, we
               do not reweigh the evidence or judge the credibility of the
               witnesses, and we respect a fact-finder’s ‘exclusive province to
               weigh conflicting evidence.’” Joslyn v. State, 942 N.E.2d 809, 811
               (Ind. 2011) (quoting Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind.
               2001)). We consider only the probative evidence and the
               reasonable inferences that support the verdict. Tharp v. State, 942
               N.E.2d 814, 816 (Ind. 2011). “We will affirm ‘if the probative
               evidence and reasonable inferences drawn from the evidence
               could have allowed a reasonable trier of fact to find the defendant

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1194 | December 26, 2018   Page 5 of 9
               guilty beyond a reasonable doubt.’” Joslyn, 942 N.E.2d at 811
               (quoting Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000)).


       Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018).


[11]   To show that Gilbert committed escape, as a Level 5 felony, the State was

       required to show that Gilbert intentionally fled “from lawful detention . . . .”

       Ind. Code § 35-44.1-3-4(a) (2018). The Indiana Code defines “lawful

       detention” as follows:


               “Lawful detention” means:


               (1) arrest;


               (2) custody following surrender in lieu of arrest;


               (3) detention in a penal facility;


               (4) detention in a facility for custody of persons alleged or found
               to be delinquent children;


               (5) detention under a law authorizing civil commitment in lieu of
               criminal proceedings or authorizing such detention while
               criminal proceedings are held in abeyance;


               (6) detention for extradition or deportation;


               (7) placement in a community corrections program’s residential
               facility;


               (8) electronic monitoring;

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1194 | December 26, 2018   Page 6 of 9
               (9) custody for purposes incident to any of the above including
               transportation, medical diagnosis or treatment, court
               appearances, work, or recreation; or


               (10) any other detention for law enforcement purposes.


       I.C. § 35-31.5-2-186(a).


[12]   According to Gilbert:


               At the time [he] committed the alleged escape, he was not under
               arrest. The police detained Gilbert and transported him to a local
               hospital in an attempt to obtain a medical evaluation and perhaps
               an emergency detention order. This circumstance falls outside
               the statutory definition of “lawful detention” as required for
               felony escape.


       Appellant’s Br. at 12. That is, Gilbert argues that being escorted by law

       enforcement officers to a hospital for the officers to obtain a medical evaluation

       to determine whether an emergency detention order is necessary is not an arrest

       and is not “any other detention for law enforcement purposes” pursuant to

       Indiana Code Section 35-31.5-2-186(a)(10). Gilbert then argues that certain

       canons of statutory construction require this Court to narrowly construe

       Indiana Code Section 35-31.5-2-186(a)(10) such that it does not apply here.


[13]   Gilbert’s argument on appeal is not well taken. Officers did not escort him to

       the hospital merely for a mental-health evaluation. Rather, the evidence most

       favorable to his conviction demonstrates that he resisted arrest at his residence

       when he fled from Deputy Tillman’s lawful command for him to stop and then


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1194 | December 26, 2018   Page 7 of 9
       refused to submit to Deputy Tillman’s attempt to place him in handcuffs.

       Indeed, the trial court expressly found Gilbert guilty of resisting law

       enforcement, as a Class A misdemeanor, based on those facts, and Gilbert does

       not challenge that conviction on appeal.


[14]   Accordingly, the evidence most favorable to Gilbert’s conviction for escape

       shows that officers had placed Gilbert under arrest at the residence for resisting

       law enforcement, although pursuant to sound local policy for potentially

       suicidal persons the officers then escorted him to a local hospital rather than to

       the jail. At the hospital, Gilbert “understood” that he “was in detention” and

       “not free to go.” Tr. at 51. And, while Lieutenant Blackwell testified that he

       had asked the prosecutor at the hospital whether officers should “go ahead and

       arrest” Gilbert for resisting, id. at 43, we think it is clear that Lieutenant

       Blackwell did not mean the initial arrest of Gilbert but instead meant whether

       the officers should complete the booking process. Indeed, Lieutenant Blackwell

       clarified that his concern was that completing the booking process without a

       mental evaluation would simply allow Gilbert to “bond right out without

       receiving . . . any help.” Id. at 50. Thus, the State presented sufficient evidence

       to show that Gilbert was under arrest while at the hospital and, as such, under

       lawful detention.


[15]   We also note that “lawful detention” includes “custody for purposes incident”

       to arrest. I.C. § 35-31.5-2-186(a)(9). Hence, even if the evidence were not

       sufficient to show that officers had placed Gilbert under arrest at the residence,

       there is no question that the evidence is sufficient to show that the officers

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1194 | December 26, 2018   Page 8 of 9
       nonetheless had taken him into their custody incident to making a

       determination whether to arrest him. The State’s evidence is sufficient to show

       that Gilbert was in lawful detention under that subsection as well.


[16]   We hold that the State presented sufficient evidence to show that Gilbert was

       under lawful detention while he was handcuffed at the hospital after his having

       resisted law enforcement officers at his residence. Accordingly, the State

       presented sufficient evidence to show that Gilbert committed escape, as a Level

       5 felony, when he fled from lawful detention. We affirm his conviction.


[17]   Affirmed.


       Pyle, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1194 | December 26, 2018   Page 9 of 9
