                                                                     FILED
                                                                Sep 28 2017, 8:30 am

                                                                     CLERK
                                                                 Indiana Supreme Court
                                                                    Court of Appeals
                                                                      and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
David L. Joley                                             Curtis T. Hill, Jr.
Fort Wayne, Indiana                                        Attorney General of Indiana

                                                           Monika Prekopa Talbot
                                                           Supervising Deputy Attorney
                                                           General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Dori J. West,                                              September 28, 2017
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           02A04-1704-CR-783
        v.                                                 Appeal from the Allen Superior
                                                           Court
State of Indiana,                                          The Honorable Frances Gull,
Appellee-Plaintiff                                         Judge
                                                           The Honorable Jason Custer,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           02D04-1610-CM-3878



Altice, Judge.


                                           Case Summary




Court of Appeals of Indiana | Opinion 02A04-1704-CR-783 | September 28, 2017             Page 1 of 7
[1]   Dori J. West appeals from her conviction for Class A misdemeanor resisting

      law enforcement. She raises a number of claims on appeal, of which we find

      the following dispositive: Did the State present sufficient evidence to support

      the conviction?


[2]   We reverse and remand.


                                         Facts & Procedural History


[3]   During the summer and fall of 2014, the Fort Wayne Police Department and

      the Allen County Drug Task Force were investigating a major drug ring

      involving the sale of synthetic drugs. The investigation included, among other

      things, a number of controlled drug buys in or around West’s neighborhood.

      On September 16, 2014, West’s eighteen-year-old son Brandon Bermingham

      delivered 1.55 grams of spice to a confidential informant. This transaction took

      place on the sidewalk in front of West’s home.


[4]   On October 2, 2014, police sought and obtained search warrants for eight

      homes involved in the investigation. No-knock warrants were authorized with

      respect to most of these homes, including West’s home where Bermingham was

      the target. At about 6:10 a.m. on October 6, 2014, Fort Wayne Police Officer

      Kevin Zelt, commander of the Emergency Services Team (EST),1 along with

      ten other EST officers, executed the warrant at West’s home. The officers were




      1
          The EST is a special operation team commonly referred to as SWAT.


      Court of Appeals of Indiana | Opinion 02A04-1704-CR-783 | September 28, 2017   Page 2 of 7
      in police tactical gear and most were armed with shotguns or submachine guns.

      Officer Eric Krull, however, was armed with a non-lethal weapon called a 40-

      millimeter foam baton launcher.


[5]   As the EST encircled the property and prepared for entry, all was seemingly

      quiet inside West’s home. Her eleven-year-old son was showering for school

      while she cooked breakfast. Her fiancé, Craig Cox, was asleep in a bedroom

      just off of the kitchen with West’s two-year-old grandson. Cox’s young teenage

      daughters were in the living room with their friend, who often came for

      breakfast before school. Bermingham was upstairs asleep.


[6]   Just before the EST was about to force entry, Cox’s thirteen-year-old daughter

      heard something outside and opened the front door. Upon seeing the armed

      individuals outside in the dark, she quickly closed the door and ran for West,

      who emerged from the kitchen. The officer assigned to the battering ram then

      forced the door open into the living room and shouted: “Police! We have a

      warrant! We’re coming in!” Transcript Vol. 1 at 157. At the same time, officers

      broke through the window into the living room. The next several seconds were

      chaotic, as multiple officers shouted commands for the occupants to come out.


[7]   West was standing in the hallway between the kitchen and the living room. She

      looked at the EST officers and then turned back toward the kitchen in an effort

      to reach her grandson still sleeping in the bedroom. Officer Krull observed

      West walking toward the dark bedroom and fired a foam baton at her. This

      occurred within about twenty seconds of entry by the EST. West fell to the


      Court of Appeals of Indiana | Opinion 02A04-1704-CR-783 | September 28, 2017   Page 3 of 7
       ground and then quickly exited the home without incident. The three girls and

       Cox also exited and were detained outside. Thereafter, officers went inside and

       removed the two-year-old and eleven-year-old boys, as well as Bermingham.


[8]    On November 10, 2014, the State charged West with Class A misdemeanor

       resisting law enforcement by fleeing. After numerous delays and continuances,

       the case was dismissed on July 15, 2016, by motion of the State. Thereafter, on

       October 4, 2016, the State refiled the same charge under a new cause number.

       West filed a motion for discharge pursuant to Ind. Criminal Rule 4(C) on

       February 22, 2017. The trial court denied the motion and the case was tried

       before a jury on March 16, 2017. The jury found West guilty as charged, and

       the trial court subsequently sentenced her to 365 days in jail, with 305 days

       suspended.


                                            Discussion & Decision


[9]    On appeal, West presents a number of colorable claims, each of which were

       preserved below. These include a Crim. Rule 4(C) issue, a challenge to the no-

       knock warrant and the execution of the warrant, an issue regarding the

       exclusion of evidence, and a sufficiency of the evidence claim. Because we find

       the sufficiency claim dispositive, we do not reach the other issues.


[10]   When we consider a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,

       51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

       reasonable inferences supporting the verdict. Id. We will affirm the conviction

       Court of Appeals of Indiana | Opinion 02A04-1704-CR-783 | September 28, 2017   Page 4 of 7
       if there is probative evidence from which a reasonable jury could have found

       the defendant guilty beyond a reasonable doubt. Id.


[11]   Resisting law enforcement, as charged in this case, is defined as “knowingly or

       intentionally…flee[ing] from a law enforcement officer after the officer has, by

       visible or audible means…identified himself or herself and ordered the person

       to stop”. Ind. Code § 35-44.1-3-1(a)(3). West argues that the officers never

       ordered her to stop and that she was not fleeing from law enforcement when

       she walked toward the bedroom to protect her two-year-old grandson.


[12]   There is no statutory definition of criminal flight in this context. See Cowans v.

       State, 53 N.E.3d 540, 545 (Ind. Ct. App. 2016). This court, however, has

       indicated that flight in the context of the resisting statute “should be understood

       to mean a knowing attempt to escape law enforcement when the defendant is

       aware that a law enforcement officer has ordered him to stop or remain in place

       once there.” Id. (quoting Wellman v. State, 703 N.E.2d 1061, 1063 (Ind. Ct.

       App. 1998)).


[13]   The State argues that West’s desire to bring her grandson out of the bedroom as

       the home was being raided by police does not mean that she did not flee after

       being told to stop. Ignoring Cowans, the State baldly asserts: “The reason why

       Defendant turned the other way is irrelevant from the point of view of the

       statute, which, on its face, provides no exceptions for noncompliance with a




       Court of Appeals of Indiana | Opinion 02A04-1704-CR-783 | September 28, 2017   Page 5 of 7
       police officer’s orders.”2 Appellant’s Brief at 36. On the contrary, West’s intent

       when walking away from the officers was relevant to a determination of guilt.

       See Cowans, 53 N.E.3d at 545 (“a person who drives to a location of greater

       safety for her or the officer, intending only to be in a location of greater safety,

       is not ‘fleeing’ from the police”, as she is not “attempting to ‘avoid arrest,’ or

       ‘escape law enforcement,’ or ‘prevent apprehension and punishment’”).


[14]   From the evidence admitted at trial, a reasonable jury could conclude that West

       was aware that the individuals who had just breached her home were police

       officers and that they wanted all the occupants, including her, to exit the

       residence. But there is no evidence from which a reasonable factfinder could

       conclude that West intended to flee, escape, or even unnecessarily prolong her

       exit from the home. Moreover, in the twenty seconds of chaos during which

       West is alleged to have fled from police by walking toward her grandson’s

       bedroom, there is no evidence that West was ordered to stop. Rather, upon

       forcing entry into the home, various officers shouted commands and “instructed

       everyone inside to exit.” Appellee’s Brief at 35. Directing West to exit her home

       was not the same thing as ordering her to stop. See Vanzyll v. State, 978 N.E.2d

       511, 516-17 (Ind. Ct. App. 2012) (reversing conviction for resisting law




       2
         The State similarly argued to the jury: “The fundamental thing for you to decide is did the Defendant know
       the law enforcement officers were law enforcement officers when she decided to walk towards the kitchen.”
       Transcript Vol. 2 at 55.

       Court of Appeals of Indiana | Opinion 02A04-1704-CR-783 | September 28, 2017                     Page 6 of 7
       enforcement by fleeing where defendant was ordered multiple times to exit his

       home but was never commanded to stop).


[15]   Under the facts and circumstances presented in this case, we conclude that the

       State’s evidence was not sufficient to prove that West fled from the officers.

       We, therefore, reverse her conviction for resisting law enforcement and remand

       this case with instructions to vacate the judgment of conviction and sentence.


[16]   Judgment reversed and remanded.


[17]   Baker, J. and Bailey, J., concur.




       Court of Appeals of Indiana | Opinion 02A04-1704-CR-783 | September 28, 2017   Page 7 of 7
