MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                        FILED
this Memorandum Decision shall not be                              Aug 31 2016, 9:28 am

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


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Ellen F. Hurley                                          Attorney General of Indiana
Marion County Public Defender Agency
                                                         Larry D. Allen
Appellate Division                                       Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Vino Mason,                                              August 31, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1511-CR-1881
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Shatrese M. Flowers, Judge
                                                         The Honorable
                                                         Peggy Ryan Hart, Commissioner
                                                         Trial Court Cause No.
                                                         49G20-1205-FD-35992



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016      Page 1 of 11
[1]   Vino Mason (“Mason”) was convicted after a jury trial of resisting law

      enforcement1 as a Class D felony and was sentenced to 240 days executed. He

      appeals his conviction, raising the following restated issues for our review:


               I. Whether sufficient evidence was presented to support his
               conviction for resisting law enforcement; and


               II. Whether the trial court abused its discretion when it failed to
               give his proposed final jury instruction to the jury.


[2]   We affirm.


                                    Facts and Procedural History
[3]   On May 28, 2012, at approximately 11:47 p.m., Indianapolis Metropolitan

      Police Department Officer Kevin Larussa (“Officer Larussa”) was patrolling

      and driving westbound on West 26th Street in Indianapolis, Indiana when he

      observed a driver, later identified as Mason, park his car in an area known to

      have high incidents of drug activity. Officer Larussa turned his patrol car

      around and watched Mason exit his car and walk between two vacant houses.

      Officer Larussa parked his patrol car around the corner and waited to see if

      Mason returned to his car. Mason came back to his car about a minute later

      and drove away. Officer Larussa saw Mason roll through an intersection




      1
        See Ind. Code § 35-44-3-3(a), (b)(1)(A). We note that, effective July 1, 2012, this statute was repealed and
      recodified at Indiana Code section 35-44.1-3-1. Because Mason committed his crime prior to July 1, 2012,
      we will apply the statute in effect at the time he committed his crime.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016              Page 2 of 11
      without stopping at the stop sign. Officer Larussa then began to follow Mason

      in order to initiate a traffic stop.


[4]   When Officer Larussa caught up to Mason, Mason sped up a little bit and drove

      through another stop sign. Mason then turned into an alley. Officer Larussa

      activated his emergency lights and followed Mason into the alley. Mason

      travelled down the alley at speeds around thirty to thirty-five miles per hour.

      When Mason reached the end of the alley, he turned into another alley,

      heading west. As he made the turn, Mason’s car fish-tailed around the corner

      and almost hit a light pole. At that time, Officer Larussa turned on his siren,

      and Mason sped up even more, continuing down the alley. Mason’s car began

      to again fish-tail, and he almost hit a second light pole. Mason pulled onto

      Harding Street and stopped his car on the west side of the street. Officer

      Larussa arrested Mason for resisting law enforcement.


[5]   On May 29, 2012, the State charged Mason with Class D felony resisting law

      enforcement. During the subsequent jury trial, Mason offered the following

      proposed final jury instruction:

              To “flee” law enforcement means to make 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.


      Appellant’s App. at 103. The trial court declined to give Mason’s proposed

      instruction, finding that it was not a pattern jury instruction and that the jury

      was capable of determining both the law and the facts and could give the

      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016   Page 3 of 11
      “reasonable prudent definition to the word” flee. Tr. at 103. During closing

      argument, Mason’s counsel recited the definition of flee contained in the

      proposed jury instruction. When the jury deliberated, it asked to see the “legal

      definition of flight that the defense counsel read.” Id. at 129. The State

      objected, arguing that the definition was not a legal definition of flight, and the

      trial court declined the jury’s request to hear the language again and advised the

      jury to re-read the instructions they had been given. After the jury could not

      reach a decision, the trial court brought the jury back into the courtroom and

      allowed the attorneys additional argument over the definition given by Mason’s

      counsel. They jury thereafter found Mason guilty as charged. Mason now

      appeals.


                                     Discussion and Decision

                                       I. Sufficient Evidence
[6]   The deferential standard of review for sufficiency claims is well settled. When

      we review the sufficiency of evidence to support a conviction, we do not

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

      928 N.E.2d 855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the

      evidence most favorable to the verdict and the reasonable inferences that can be

      drawn from this evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App.

      2014), trans. denied. We also consider conflicting evidence in the light most

      favorable to the trial court’s ruling. Oster v. State, 992 N.E.2d 871, 875 (Ind. Ct.

      App. 2013), trans. denied. We will not disturb the jury’s verdict if there is

      substantial evidence of probative value to support it. Fuentes, 10 N.E.3d at 75.
      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016   Page 4 of 11
      We will affirm unless no reasonable fact-finder could find the elements of the

      crime proven beyond a reasonable doubt. Lock v. State, 971 N.E.2d 71, 74 (Ind.

      2012). As the reviewing court, we respect “the jury’s exclusive province to

      weigh conflicting evidence.” McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).


[7]   Mason argues that the evidence presented at trial was not sufficient to support

      his conviction for resisting law enforcement. He contends that he was not

      trying to elude Officer Larussa at the time he drove through the alley, but that

      he was, based on concerns for his safety, merely driving until he could reach a

      well-lit street in order to pull over. Mason, therefore, asserts that he had

      adequate justification for not stopping until he reached Harding Street, and he

      did not resist law enforcement.


[8]   In order to convict Mason of resisting law enforcement as a Class D felony, the

      State was required to prove beyond a reasonable doubt that Mason knowingly

      or intentionally fled from a law enforcement officer after the officer had, by

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

      siren or emergency lights, identified himself and ordered Mason to stop and

      that Mason used a vehicle to commit the offense. Ind. Code § 35-44-3-3(a),

      (b)(1)(A).


[9]   Here, looking at the evidence most favorable to the jury’s verdict as we are

      required to do under our standard of review, the evidence showed that, after

      Officer Larussa pulled his patrol car behind Mason’s car, Mason sped up and

      drove through an intersection without stopping at the stop sign. Officer Larussa


      Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016   Page 5 of 11
       then attempted to initiate a traffic stop by activating his emergency lights, and

       Mason turned into an alley. Evidence was presented that there was a street

       light on the corner before the entrance to the alley, but Mason did not stop

       there. Tr. at 49. Mason drove through the alley at speeds of approximately

       thirty to thirty-five miles per hour, fish-tailing, almost hitting light poles, and

       not stopping. After Mason turned down another alley, Officer Larussa

       activated his siren, and Mason still did not stop; instead, he sped up. Although

       Mason testified that he had turned on his hazard lights, Officer Larussa testified

       that Mason’s hazard lights were not on, and Mason made no indication of

       stopping while Officer Larussa pursued him. Id. at 76, 111. Based on our

       standard of review, we conclude that sufficient evidence was presented by the

       State to support Mason’s conviction for resisting law enforcement. Mason’s

       argument that he did not commit the offense is merely a request for this court to

       reweigh the evidence and judge the credibility of the witnesses, which we

       cannot do. Boggs, 928 N.E.2d at 864.


                                          II. Jury Instruction
[10]   Mason argues that the trial court abused its discretion when it refused his

       tendered jury instruction on the definition of flight, particularly as it applies to

       resisting law enforcement. He contends that the proposed instruction was a

       correct statement of the law because the language of the proposed instruction

       came from an Indiana Court of Appeals case. Mason also claims that the

       evidence presented at trial supported giving the instruction because his defense

       was based on the notion that he did not flee the police but only drove a short

       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016   Page 6 of 11
       distance to stop in a well-lit area. Mason lastly asserts that the substance of his

       tendered instruction was not covered by the other instructions given to the jury.


[11]   “‘The purpose of jury instructions is to inform the jury of the law applicable to

       the facts without misleading the jury and to enable it to comprehend the case

       clearly and arrive at a just, fair, and correct verdict.’” Munford v. State, 923

       N.E.2d 11, 14 (Ind. Ct. App. 2010) (quoting Murray v. State, 798 N.E.2d 895,

       899 (Ind. Ct. App. 2003)). Instructing the jury lies within the sole discretion of

       the trial court. Eberle v. State, 942 N.E.2d 848, 861 (Ind. Ct. App. 2011), trans.

       denied. We review a trial court’s decision to give or refuse to give an instruction

       for an abuse of discretion. Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App.

       2008). An abuse of discretion occurs where the decision is clearly against the

       logic and effect of the facts and circumstances before the trial court. Eberle, 942

       N.E.2d at 861. In determining whether a trial court abused its discretion by

       declining to give a tendered instruction, we consider (1) whether the tendered

       instruction correctly states the law, (2) whether there was evidence presented at

       trial to support giving the instruction, and (3) whether the substance of the

       instruction was covered by other instructions that were given. Fry v. State, 25

       N.E.3d 237, 249 (Ind. Ct. App. 2015), trans. denied.


[12]   Here, Mason tendered the following proposed instruction to the trial court,

       which the trial court refused:


               To “flee” law enforcement means to make a knowing attempt to
               escape law enforcement when the defendant is aware that a law


       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016   Page 7 of 11
               enforcement officer has ordered him to stop or remain in place
               once there.


       Appellant’s App. at 103. This language was taken from Wellman v. State, 703

       N.E.2d 1061, 1063 (Ind. Ct. App. 1998), which was a case challenging the

       sufficiency of the evidence to support convictions for resisting law enforcement.

       Our Supreme Court recently stated, “we have long held that the ‘mere fact that

       certain language or expression [is] used in the opinions of this Court to reach its

       final conclusion does not make it proper language for instructions to a jury.’”

       Keller v. State, 47 N.E.3d 1205, 1209 (Ind. 2016) (quoting Ludy v. State, 784

       N.E.2d 459, 462 (Ind. 2003) (alteration in original). The Court further stated,

       “Appellate review of the sufficiency of the evidence . . . will ‘rarely, if ever,’ be

       an appropriate basis for a jury instruction, because the determination is

       fundamentally different.” Id. (quoting Garfield v. State, 74 Ind. 60, 64 (1881)).


[13]   In line with this rationale, even if the language in the proposed jury instruction

       was a proper statement of the law in the context of the facts of Wellman, this

       does not mean that it was a proper statement of law in the present context. In

       Wellman, the police went to the defendant’s house to investigate reports of child

       abuse and, while there, ordered the defendant to remain outside; however, the

       defendant entered his house and locked the door. 703 N.E.2d at 1062. On

       appeal, the defendant challenged his convictions for resisting law enforcement,

       contending that the act of walking into his house did not constitute fleeing

       within the meaning of the statute. Id. at 1062-63. This court held that it was

       sufficient under the statute that the defendant disobeyed a command from the

       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016   Page 8 of 11
       police and entered his house. Id. at 1063. The language from Wellman that

       Mason used in his proposed instruction specifically stated that “‘flight’ in this

       context 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. (emphasis added).

       Therefore, the definition from Wellman that Mason proposed as a jury

       instruction was specific to that case and the particular context of the facts there.

       If the trial court had given Mason’s proposed jury instruction, we believe that

       the jury would have been misled into substituting what they believed was the

       legal definition of flight for their own common sense definition. “‘[W]here

       terms are in general use and can be understood by a person of ordinary

       intelligence, they need not be defined.’” Roche v. State, 690 N.E.2d 1115, 1128

       (Ind. 1997) (quoting McNary v. State, 428 N.E.2d 1248, 1252 (Ind. 1981)).


[14]   This possibility for misleading the jury was apparent after Mason’s counsel

       recited the language from the proposed jury instruction in his closing argument.

       During deliberations, the jury requested that the trial court give them the “legal

       definition of flight that the defense counsel read.” Tr. at 129. The foreperson

       stated that the jury felt that “there may or not be a law that wasn’t presented to

       [them].” Id. at 135. Thus, the potential for the jury to be misled Mason’s

       proposed jury instruction was evident, and the trial court properly refused to

       give the requested jury instruction.


[15]   Additionally, the substance of Mason’s proposed jury instruction was already

       covered by other instructions given by the trial court. As part of the final

       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016   Page 9 of 11
instructions, the trial court instructed the jury as to the elements of the crime of

resisting law enforcement as follows:


        The crime of Resisting Law Enforcement is defined by statute as
        follows: A person who knowingly flees from a law enforcement
        officer after the officer has, by visible or audible means, identified
        himself and ordered the person to stop commits Resisting Law
        Enforcement.


        To convict the Defendant of Count I, the State must have proved
        each of the following beyond a reasonable doubt:


        1. The Defendant, VINO MASON


        2. Knowingly


        3. Fled from Officer Kevin Larussa


        4. After Officer Larussa had, by visible or audible means,
        identified himself and ordered the Defendant, Vino Mason to
        stop


        5. And the Defendant, VINO MASON used a vehicle to commit
        the offense


        If the State fails to prove each of these elements beyond a
        reasonable doubt, you must find the defendant, VINO MASON,
        not guilty of Resisting Law Enforcement.


Appellant’s App. at 84. The jury was also instructed as to the definition of

knowingly: “A person engages in conduct “knowingly” if, when he engages in

this conduct, he is aware of a high probability that he is doing so. Id. at 85.
Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016   Page 10 of 11
[16]   These instructions given to the jury covered all of the required elements of the

       charged crime. The jury was told that fleeing occurs after an officer has by

       visible or audible means identified himself and ordered the defendant to stop. It

       was also instructed as to the requisite mens rea for the crime. We, therefore,

       conclude that the jury was sufficiently and fully instructed as to the necessary

       elements of the crime, and the instructions given did not mislead the jury. The

       trial court did not abuse its discretion in refusing to give Mason’s proposed jury

       instruction.


[17]   Affirmed.


[18]   Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1511-CR-1881 | August 31, 2016   Page 11 of 11
