                                                                              FILED
                                                                          Jul 22 2016, 8:37 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
                                                                Gregory F. Zoeller
      Brian A. Karle                                            Attorney General of Indiana
      Ball Eggleston, PC
      Lafayette, Indiana                                        Richard C. Webster
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Mark A. Conley,                                           July 22, 2016
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                79A02-1512-CR-2348
              v.                                                Appeal from the Tippecanoe
                                                                Superior Court
      State of Indiana,                                         The Honorable Daniel J. Moore,
      Appellee-Plaintiff.                                       Magistrate
                                                                Trial Court Cause No.
                                                                79D05-1506-CM-600



      Najam, Judge.


                                        Statement of the Case
[1]   Mark A. Conley appeals his conviction for resisting law enforcement, as a Class

      A misdemeanor, following a jury trial. Conley presents a single issue for our



      Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016                    Page 1 of 7
      review, namely, whether the State presented sufficient evidence to support his

      conviction. We affirm.


                                  Facts and Procedural History
[2]   On June 24, 2015, Conley and Cameron Burger went to a Walmart store in

      Lafayette to shoplift various items. Walmart asset protection officers Shaun

      Parkins and Zachary Miller observed that Conley was wearing what appeared

      to be an empty backpack. Accordingly, Parkins and Miller became suspicious

      and proceeded to follow Conley and Burger around the store. Parkins and

      Miller watched as Conley and Burger removed merchandise from the store

      shelves, put them into Conley’s backpack, and proceeded past the cashiers

      without paying for any of the items. As Conley and Burger moved towards the

      exits, Parkins, Miller, and a third employee confronted the two men, who

      proceeded to run out of the store.


[3]   Miller had already contacted the Lafayette Police Department to report the

      suspected shoplifting in progress. And when Conley ran out of the store,

      Officers Kurt Sinks and Amanda Deckard, both wearing full police uniforms

      and each driving a marked police car, saw Conley sprint across the parking lot.

      Officer Sinks drove after Conley and drove into Conley’s path. When Conley

      was approximately ten feet away from his police car, Officer Sinks held up his

      hand in Conley’s direction in a gesture to get him to stop running. Officer

      Sinks and Conley made eye contact, but Conley darted behind the police car

      and discarded the backpack he had been wearing. Conley continued running to

      a nearby hotel parking lot, where Officer Sinks and Officer Deckard ultimately
      Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016   Page 2 of 7
      apprehended him. A subsequent search of Conley’s backpack revealed items he

      and Burger had stolen from Walmart.


[4]   The State charged Conley with resisting law enforcement, as a Class A

      misdemeanor, and theft, as a Class A misdemeanor. A jury found Conley

      guilty as charged, and the trial court entered judgment and sentence

      accordingly. This appeal ensued.


                                      Discussion and Decision
[5]   Conley contends that the State presented insufficient evidence to support his

      resisting law enforcement conviction. In reviewing a sufficiency of the evidence

      claim, we do not reweigh the evidence or assess the credibility of the witnesses.

      Sharp v. State, 42 N.E.3d 512, 516 (Ind. 2015). Rather, we look to the evidence

      and reasonable inferences drawn therefrom that support the verdict, and we will

      affirm the convictions if there is probative evidence from which a reasonable

      jury could have found the defendant guilty beyond a reasonable doubt. Id.


[6]   To prove resisting law enforcement, the State had to show that Conley

      knowingly or intentionally fled from a law enforcement officer after the officer

      had, by visible or audible means, identified himself and ordered him to stop.

      Ind. Code § 35-44.1-3-1 (2015). Here, Conley maintains that the State failed to

      prove either that Officer Sinks identified himself as a police officer or that he

      had ordered him to stop by visible or audible means. We address each element

      in turn.



      Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016    Page 3 of 7
                                      Identification as Police Officer

[7]   This court has held that, to sustain a resisting law enforcement conviction, the

      evidence must show that the person being arrested had to, at least, “have reason

      to know” that the person he was dealing with is an officer. Stack v. State, 534

      N.E.2d 253, 255 (Ind. Ct. App. 1989). And we have held that a police officer

      wearing a full uniform and driving a marked police car is sufficient to meet this

      standard. See, e.g., Wellman v. State, 703 N.E.2d 1061, 1063 (Ind. Ct. App.

      1998). Still, Conley contends that, while Officer Sinks was driving a marked

      police car and wearing a police uniform, “there was no evidence . . . that

      Conley had an opportunity to view a marking on the side or back of the vehicle

      as he ran past in the opposite direction.” Appellant’s Br. at 4-5. But Conley

      ignores Officer Sinks’ testimony that Conley was approximately ten feet away

      from Officer Sinks’ marked police car when Conley made eye contact with

      Officer Sinks and ran behind the car. We hold that the evidence and reasonable

      inferences therefrom support a determination that Conley had reason to know

      that Officer Sinks was a police officer.


                                                  Order to Stop

[8]   Conley next contends that Officer Sinks “failed to issue a proper order to stop”

      when Officer Sinks merely put his hand up in Conley’s direction without any

      other visual or audible indicator. Appellant’s Br. at 5.

              A police officer’s order to stop need not be limited to an audible
              order to stop. The order to stop may be given through visual
              indicators. Evidence of a proper visual order to stop is based on
              the circumstances surrounding the incident and whether a
      Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016     Page 4 of 7
              reasonable person would have known that he or she had been
              ordered to stop.


      Vanzyll v. State, 978 N.E.2d 511, 516 (Ind. Ct. App. 2012) (quoting Fowler v.

      State, 878 N.E.2d 889, 895 (Ind. Ct. App. 2008)).


[9]   In support of his contention on appeal, Conley cites to Czobakowsky v. State, 566

      N.E.2d 87 (Ind. Ct. App. 1991). In that case, a police officer in full uniform

      and driving a marked police car investigating a disturbance drove up to a group

      of five men on a street in Indianapolis. As the officer approached the men in

      his police car, the men dispersed. The officer exited his car and apprehended

      the defendant on foot. The defendant was charged with resisting law

      enforcement and convicted on that count. On appeal, we held as follows:

              The evidence does not support the conclusion Officer Myers
              visually ordered Czobakowsky to stop. It is unreasonable to
              conclude that the mere approach of an uniformed officer
              constitutes an order to stop whether the officer, in his patrol car,
              approaches a group of people in the street or, while on foot,
              approaches a group of people on the sidewalk, in the street, in a
              store or in a restaurant. To hold otherwise is to hold that
              anytime a person observes a police officer approaching the
              person must either stop or remain in place or risk being guilty of
              resisting law enforcement.


      Id. at 89. However, in Czobakowsky, we noted further that “[t]his is not to say

      that the approach of a police officer, coupled with other circumstances such as

      operating the police vehicle’s signal lamps, would not support the conclusion a

      visual order to stop had been given.” Id.


      Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016       Page 5 of 7
[10]   In the instant case, Officer Sinks testified that, as Conley ran out of the

       Walmart and into the parking lot after having committed theft, he: passed

       directly in front of Officer Deckard’s marked police car; made eye contact with

       Officer Sinks, who was wearing his full uniform and driving a marked police

       car, as Officer Sinks was holding up his hand in a gesture attempting to get

       Conley to stop while Conley was approximately ten feet away; and dropped his

       backpack immediately behind Officer Sinks’ police car as he ran past it. Officer

       Sinks described the encounter as follows:

               Q: Can you describe, where was your hand in relation to the top
               of the window in your vehicle? I guess would the defendant have
               been able to see your hand standing ten feet away?

               A: Yeah, absolutely. I even had it up high if I’m — if this is the
               passenger seat of my car and you know my window would be
               about here, my hand would have been square in the middle of the
               window.

               Q: And then what did he do after you made that hand gesture to
               him?

               A: Continued running around the rear of my squad car.


       Tr. at 153. This evidence demonstrates that Officer Sinks did, by visible means,

       order Conley to stop fleeing. Under these facts and circumstances, we hold that

       a reasonable person would have interpreted Officer Sinks’ hand gesture as a

       visual command to stop. And Officer Sinks’ testimony supports a reasonable

       inference that Conley saw that gesture but proceeded to run from Officer Sinks.



       Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016      Page 6 of 7
       The State presented sufficient evidence to support Conley’s resisting law

       enforcement conviction.


[11]   Affirmed.


       Robb, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 79A02-1512-CR-2348 | July 22, 2016   Page 7 of 7
