MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                              Apr 28 2017, 10:10 am
court except for the purpose of establishing
the defense of res judicata, collateral                            CLERK
                                                               Indiana Supreme Court
estoppel, or the law of the case.                                 Court of Appeals
                                                                    and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Yvette M. LaPlante                                        Curtis T. Hill, Jr.
Keating & LaPlante, LLP                                   Attorney General of Indiana
Evansville, Indiana                                       Eric P. Babbs
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David James Hippensteel,                                  April 28, 2017
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          82A01-1612-CR-2858
        v.                                                Appeal from the Vanderburgh
                                                          Circuit Court
State of Indiana,
Appellee-Plaintiff.                                       The Honorable Michael J. Cox,
                                                          Magistrate

                                                          Trial Court Cause No.
                                                          82C01-1607-F6-3893



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017   Page 1 of 11
[1]   David James Hippensteel appeals his conviction for resisting law enforcement

      as a level 6 felony. He raises one issue which we revise and restate as whether

      the evidence is sufficient to sustain his conviction. We affirm.


                                      Facts and Procedural History

[2]   At approximately 11:15 a.m. on June 30, 2016, Hippensteel entered the

      Evansville District Indiana State Police Post, asked to speak to the highest-

      ranking person, and Lieutenant Brian Bailey, the district commander of the

      post, met with Hippensteel in his office. Lieutenant Bailey spoke with

      Hippensteel for approximately fifteen to twenty minutes, noticed that

      Hippensteel was “having trouble making complete thoughts and statements”

      and was “kind of talking in circles,” and determined that Hippensteel was

      making a complaint regarding law enforcement officers from another

      jurisdiction visiting the residence where he stayed with his mother several days

      earlier. Transcript at 8-9. Hippensteel told Lieutenant Bailey that his mother

      was no longer at the residence, that he wanted to know where she was, and that

      the officers had asked him if he was suicidal.


[3]   Lieutenant Bailey ultimately explained to Hippensteel that there was no

      allegation that a crime had occurred, that he did not have authority over other

      police agencies, and told him where to make a complaint if he desired.

      Hippensteel responded “fine . . . I’m just going to leave,” turned and walked

      toward the door, stopped and stated that he needed Lieutenant Bailey’s name,

      and Lieutenant Bailey told him his name and position. Id. at 11. Hippensteel

      said that he needed Lieutenant Bailey’s business card, Lieutenant Bailey said
      Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017   Page 2 of 11
      there was no reason for Hippensteel to have his business card, again told

      Hippensteel his name and position, and said that if he had a problem he could

      talk to one of his supervisors. Hippensteel said that he was not going to leave,

      and Lieutenant Bailey stated that he needed to leave in a peaceful manner. At

      that point, Hippensteel lunged towards Lieutenant Bailey’s desk “like he was

      going to get something off of it himself,” Lieutenant Bailey again told him to

      leave, and Hippensteel began yelling that he wanted Lieutenant Bailey’s name

      and business card. Id. at 12. Lieutenant Bailey placed his right hand on the

      back of Hippensteel’s left arm to direct him toward the door, and Hippensteel

      stated loudly “you can’t make me leave.” Id. at 13.


[4]   Sergeant Jason Allen, whose office was across the hall, noticed that Hippensteel

      had raised his voice, heard Hippensteel say he was not going to leave, stood up

      and started to walk toward Lieutenant Bailey’s office, and again heard

      Hippensteel say that he was not leaving. Sergeant Allen stood on the other side

      of Hippensteel and attempted to grab his arm, and Hippensteel pulled away

      from him. It was obvious to Lieutenant Bailey that Hippensteel had no

      intention of leaving and told Hippensteel that he was under arrest. Lieutenant

      Bailey and Sergeant Allen struggled with him to move him out of Lieutenant

      Bailey’s office and into the open area between the offices so that they could

      place him in handcuffs.


[5]   In attempting to move Hippensteel out of Lieutenant Bailey’s office, Sergeant

      Allen pulled and Lieutenant Bailey pushed Hippensteel, but he “was just too

      strong” and the officers “couldn’t get him to move.” Id. at 38. Sergeant Allen

      Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017   Page 3 of 11
      gave loud verbal commands to Hippensteel to stop resisting and go to the

      ground. As the officers moved Hippensteel to the doorway, Sergeant Allen

      administered two knee strikes to Hippensteel’s “common peroneal” to move

      him into the hall because the doorway was a bad place to be with the weapons.

      Id. at 35. The knee strikes advanced Hippensteel and the officers through the

      doorway into the hall. Once through the doorway, the three men “started to

      kind of pivot around,” Sergeant Allen was placed against the wall, all three men

      fell down, and Sergeant Allen “felt a pop in [his] right leg.” Id. at 35, 38.


[6]   The officers attempted to place handcuffs on Hippensteel, who was “a very

      strong man” and “just seemed to have no pain compliance,” and the officers

      were eventually able to handcuff him. Id. at 35. After being handcuffed,

      Hippensteel “resisted for an unusually long time” and kicked his legs until

      Sergeant Allen placed his leg in a leg lock. Id. at 14. Hippensteel did not calm

      down for two or three minutes. Sergeant Allen then told Lieutenant Bailey that

      he believed his ankle was broken. Sergeant Allen was taken to the emergency

      room and learned that his right fibula was fractured above the ankle bone. He

      was unable to work for three and one-half weeks and was then placed on light,

      non-uniform duty until mid-September.


[7]   While Hippensteel was in jail, he placed several telephone calls which were

      recorded. During one of the phone conversations, Hippensteel stated he went

      to the police post and “went in there and tried to figure out what happened with

      why those people showed up at the house,” “the highway patrol tried to arrest

      me and he had no reason to arrest me and so I got in a fight with him and then I

      Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017   Page 4 of 11
      kind of beat him up,” and “that’s why I’m in here for assault but it’[s]

      absolutely no crime because I didn’t do anything wrong.” Id. at 44. He later

      stated “believe me, I’m not going to be in any trouble at all, the man that tried

      to punch me is going to get into a lot of trouble, I promise. I just, plus the fact,

      and I beat him up is the problem.” Id. at 46. The person with whom

      Hippensteel was speaking stated “[b]ut I understand you broke his foot,” and

      Hippensteel responded “[w]ell, he’s a baby” and later stated “[h]e tried to arrest

      me, he had no reason to arrest me at all and I didn’t do anything wrong and

      then so I got in a fight with him and then I ended up breaking his foot” and

      “[h]e’s a police officer, he had nothing to do with this case, he’s going to end up

      going to jail for what he did to me.” Id.


[8]   On July 5, 2016, the State charged Hippensteel with resisting law enforcement

      as a level 6 felony and disorderly conduct as a Class B misdemeanor. In

      November 2016, the court held a bench trial at which it heard the testimony of

      Lieutenant Bailey and Sergeant Allen. The court found Hippensteel guilty as

      charged and sentenced him to one year suspended to probation for his

      conviction for resisting law enforcement as a level 6 felony and ninety days

      suspended to probation for his conviction for disorderly conduct as a class B

      misdemeanor, to be served concurrently. The court indicated Hippensteel

      received 154 days of jail credit and that, if he successfully completes probation,

      the court will allow him to request to enter the conviction for resisting law

      enforcement as a class A misdemeanor.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017   Page 5 of 11
                                                        Discussion

[9]    The issue is whether the evidence is sufficient to sustain Hippensteel’s

       conviction for resisting law enforcement as a level 6 felony. 1 When reviewing

       the sufficiency of the evidence to support a conviction, we must consider only

       the probative evidence and reasonable inferences supporting the verdict. Drane

       v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility

       or reweigh the evidence. Id. We consider conflicting evidence most favorably

       to the trial court’s ruling. Id. We affirm the conviction unless “no reasonable

       fact-finder could find the elements of the crime proven beyond a reasonable

       doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not

       necessary that the evidence overcome every reasonable hypothesis of

       innocence. Id. at 147. The evidence is sufficient if an inference may reasonably

       be drawn from it to support the verdict. Id.


[10]   Ind. Code § 35-44.1-3-1(a) provided at the time of the offense that “[a] person

       who knowingly or intentionally . . . 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 . . . commits resisting

       law enforcement, a Class A misdemeanor, except as provided in subsection

       (b),” and Ind. Code § 35-44.1-3-1(b) provided that the offense is a level 6 felony

       if, “while committing any offense described in subsection (a), the person . . .




       1
           Hippensteel does not challenge his conviction for disorderly conduct as a class B misdemeanor.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017                Page 6 of 11
       inflicts bodily injury on or otherwise causes bodily injury to another person . . .

       .” 2 The State alleged that Hippensteel “did knowingly or intentionally forcibly

       resist, obstruct or interfere with Trooper J. Allen a law enforcement officer,

       while said officer was lawfully engaged in [his] duties as a law enforcement

       officer and in committing said act the defendant inflicted bodily injury on or

       otherwise caused bodily injury to Trooper J. Allen to-wit: injury to ankle.”

       Appellant’s Appendix II at 16. “A person engages in conduct ‘intentionally’ if,

       when he engages in the conduct, it is his conscious objective to do so.” Ind.

       Code § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when he

       engages in the conduct, he is aware of a high probability that he is doing so.”

       Ind. Code § 35-41-2-2(b).


[11]   Hippensteel does not argue that he did not forcibly resist Sergeant Allen or that

       Sergeant Allen did not suffer bodily injury. Rather, he argues the State failed to

       prove his resistance caused Sergeant Allen’s injury and that his conviction for

       resisting law enforcement must be reduced to a misdemeanor. He contends

       that the undisputed testimony was that Sergeant Allen was injured when he

       placed Hippensteel in a leg lock and not as the result of Hippensteel’s actions,

       no one testified that Hippensteel performed any act that inflicted Sergeant

       Allen’s injury, and that the injury was caused by the officer’s own movements.

       The State maintains that the evidence supports the conclusion that Hippensteel




       2
           Subsequently amended by Pub. L. No. 198-2016 § 673 (eff. Jul. 1, 2016).


       Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017   Page 7 of 11
       inflicted or otherwise caused Sergeant Allen’s injury and that Hippensteel was

       not a passive participant in the encounter with the officers.


[12]   Hippensteel asserts that Smith v. State, 21 N.E.3d 121 (Ind. Ct. App. 2014), and

       Moore v. State, 49 N.E.3d 1095 (Ind. Ct. App. 2016), reh’g denied, trans. denied,

       support his position. In Smith, a police officer pulled the defendant’s arm and

       took her to the ground, and as a result the officer suffered some scrapes from

       being on the pavement. 21 N.E.3d at 123. This Court held that the defendant

       did not inflict an injury on the officer or directly cause the officer’s injury, and

       we noted that we “agree[d] with Smith that she was ‘a passive part of the

       encounter’ and ‘took no actions toward’ him.” Id. at 125. We further stated

       that, “[a]s we do 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, we decline to follow Whaley [v. State, 843 N.E.2d 1 (Ind. Ct. App.

       2006), trans. denied],” that the officer “chose to halt Smith’s resistance by

       throwing her to the ground, and the officer was injured in so doing,” and that,

       “[u]nlike 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. at 125-126.


[13]   In Moore, a police officer fell down while engaged in a foot pursuit and was

       injured. 49 N.E.3d at 1099. The Court noted that, in Whaley, the defendant

       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,

       Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017   Page 8 of 11
       the officer had other options, and his decision to take Smith ‘to the ground’ and

       injure himself was not as foreseeable.” Id. at 1108. The Court held that the

       evidence was not sufficient to show the defendant caused the officer’s injuries

       under the statute and that he did not place the officer in a position where his

       only option was to suffer injury. Id.


[14]   Here, we cannot conclude that Hippensteel was a passive participant or that

       Sergeant Allen’s injury was not a highly foreseeable result of his actions.

       Hippensteel lunged towards Lieutenant Bailey’s desk, declared loudly that

       Lieutenant Bailey could not make him leave, struggled with Lieutenant Bailey

       and Sergeant Allen as they removed him from Lieutenant Bailey’s office, and

       continued to struggle after he was on the ground. Lieutenant Bailey testified

       there was not room to take Hippensteel into custody in the office with him

       fighting, and Sergeant Allen testified that, if the officers had to take him to the

       ground in the office, someone was going to be hurt. Hippensteel took

       numerous affirmative steps of struggling with the officers, including Sergeant

       Allen, reasonably necessitating the actions of the officers to subdue him. Smith

       and Moore are distinguishable.


[15]   The evidence most favorable to the conviction demonstrates that Sergeant

       Allen’s injury was directly related to and caused by Hippensteel’s resisting

       arrest. Sergeant Allen testified that he and Lieutenant Bailey attempted to

       move Hippensteel out of Lieutenant Bailey’s office but that Hippensteel “was

       just too strong” and they “couldn’t get him to move.” Transcript at 38. He



       Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017   Page 9 of 11
       testified he gave loud verbal commands to Hippensteel to stop resisting and go

       to the ground.


[16]   Sergeant Allen also testified that, as the officers moved Hippensteel to the

       doorway, he administered two knee strikes to Hippensteel’s “common

       peroneal” in order “to bring him outside of that doorway.” Id. at 35, 38. He

       testified that the knee strikes “weren’t effective like they usually were, but it did

       advance us through the door.” Id. at 38. Sergeant Allen further testified “then

       once we got out to the door we started to kind of pivot around I guess and that’s

       when we all fell down.” Id. He stated “[t]hose knee strikes were to get us out of

       that doorway” and “once we got out of the doorway and we transitioned into

       the hall, I had placed both feet back on to the ground and that’s when we fell.”

       Id. at 37. He stated “[w]e went to the ground, I felt a pop in my right leg.” Id.

       at 35. He also testified Hippensteel was “a very strong man” who “seemed to

       have no pain compliance.” Id. Lieutenant Bailey testified that, after being

       handcuffed, Hippensteel “resisted for an unusually long time,” kicked his legs

       until Sergeant Allen placed his leg in a leg lock, and did not calm down for two

       or three minutes. Id. at 14. Sergeant Allen indicated that, if Hippensteel had

       not resisted, he would not have broken his leg.


[17]   Based upon our review of the testimony most favorable to the conviction, we

       conclude that a reasonable trier of fact could have found that Hippensteel

       inflicted or otherwise caused the bodily injury sustained by Sergeant Allen and

       that sufficient evidence exists from which the trier of fact could find Hippensteel

       guilty beyond a reasonable doubt of resisting law enforcement as a level 6

       Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017   Page 10 of 11
       felony. See Whaley, 843 N.E.2d at 10-11 (holding that the evidence was

       sufficient to sustain the defendant’s convictions of resisting law enforcement as

       class D felonies where the defendant argued that the officers inflicted the

       injuries upon themselves in attempting to handcuff him and noting that the

       officers’ injuries were directly related to and caused by the defendant’s resisting

       arrest).


                                                   Conclusion

[18]   For the foregoing reasons, we affirm Hippensteel’s conviction for resisting law

       enforcement as a level 6 felony.


[19]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1612-CR-2858 | April 28, 2017   Page 11 of 11
