                                                                 FILED
 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of                           Nov 26 2012, 8:47 am
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.                         CLERK
                                                                    of the supreme court,
                                                                    court of appeals and
                                                                           tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

ELLEN F. HURLEY                                      GREGORY F. ZOELLER
Indianapolis, Indiana                                Attorney General of Indiana

                                                     MICHAEL GENE WORDEN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

J.P.,                                                )
                                                     )
        Appellant-Respondent,                        )
                                                     )
               vs.                                   )       No. 49A02-1205-JV-360
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Petitioner.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Geoffrey Gaither, Magistrate
                              Cause No. 49D09-1112-JD-3473


                                         November 26, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION


VAIDIK, Judge
                                      Case Summary

       J.P. appeals his true finding of delinquency for resisting law enforcement. J.P.

contends there is insufficient evidence to support the true finding because the State failed

to prove that he fled or attempted to flee from the police in any way. Finding that the

State failed to prove the elements of resisting law enforcement, we reverse J.P.’s true

finding of delinquency.

                              Facts and Procedural History

       On December 24, 2011, at around 8:30 p.m., Indianapolis Metropolitan Police

Officer Bryan Julian was dispatched to investigate a report of two juveniles shooting a

BB gun at a house. When Officer Julian approached the house in his marked squad car,

he saw two boys, J.P. and D.W., and J.P. was holding what appeared to be a rifle. Officer

Julian turned on his spotlight, but he did not turn on his flashing lights or activate his

siren. When Officer Julian pulled his squad car over to the side of the road, the two boys

ran toward D.W.’s nearby house.        Officer Julian then began to exit his squad car,

identified himself as a police officer, and yelled at the two boys to stop running. When

Officer Julian got out of his car to tell the boys to stop, J.P. was crossing the threshold of

D.W.’s house while D.W. was still several steps away from the door. The two boys did

not stop running, and Officer Julian located the two boys inside D.W.’s house sitting in a

room straight ahead of the front door. The BB gun appeared to have been tossed behind

J.P.’s head. Tr. p. 11.

       The State filed a petition alleging J.P. a delinquent for committing resisting law

enforcement, a Class A misdemeanor when committed by an adult. A fact-finding

                                              2
hearing was held. D.W.’s mother testified at the hearing that the family had a rule that if

her children saw a car they did not recognize, they and any of their friends who were with

them were to come inside the house. Id. at 24. Across the street from D.W.’s house was

his family’s auto body repair shop that had been burglarized on several occasions, and

her rule was due to the burglaries. Id. There was also a security camera on the premises

of the auto body repair shop that recorded the incident that night. The video was played

to the court several times at the denial hearing, but neither party offered the video into

evidence.

       When Officer Julian was shown the video on cross-examination, he admitted that

he was still inside his car with the window and door shut when J.P. was about to cross the

threshold into D.W.’s house. Id. at 18. One second later, Officer Julian’s car door was

open but he had not yet exited the car. Id. at 18-19. The video showed that J.P. was

inside D.W.’s house, and when Officer Julian was asked if J.P. could hear a yell for him

to stop at that time, Officer Julian answered, “Possibly.” Id. at 19. Officer Julian also

testified that when he entered D.W.’s home, both J.P. and D.W. were “basically right

inside the door” and not attempting to flee the home. Id. at 27.

       At the end of the State’s case, J.P. made a motion to dismiss under Trial Rule

41(B), arguing that the State had failed to meet its burden of proof. The juvenile court

denied the motion and entered a true finding. J.P. was placed on probation for three

months.

       J.P. now appeals.

                                Discussion and Decision

                                             3
       Our standard of review with regard to sufficiency claims is well settled. In

reviewing a sufficiency of the evidence claim, this Court does not reweigh the evidence

or judge the credibility of the witnesses. Bond v. State, 925 N.E.2d 773, 781 (Ind. Ct.

App. 2010), reh’g denied, trans. denied. We consider only the evidence most favorable

to the judgment and the reasonable inferences draw therefrom and affirm if the evidence

and those inferences constitute substantial evidence of probative value to support the

judgment. Id. Reversal is appropriate only when a reasonable trier of fact would not be

able to form inferences as to each material element of the offense. Id.

       Resisting law enforcement, a Class A misdemeanor when committed by an adult,

was governed at the time of the offense by Indiana Code section 35-44-3-3,1 and

provided in relevant part:

       A person who knowingly or intentionally:
                            *     *      *      *      *
       (3) flees from a law enforcement officer after the officer has, by visible or
       audible means, including operation of the law enforcement officer’s siren or
       emergency lights, identified himself or herself and ordered the person to
       stop;

       commits resisting law enforcement, a Class A misdemeanor.

J.P. contends that the State failed to show that he fled the police in any manner; he argues

that he was already inside the house by the time that Officer Julian told him to stop, and

he made no further attempt to flee. We agree.

       In this case, Officer Julian approached J.P. and D.W. in his squad car with his

spotlight on. However, this alone did not require them to stop.

       1
           Indiana Code section 35-44-3-3 was repealed by P.L. 126-2012 Sec. 53 effective July 1, 2012.
It has been replaced by Indiana Code section 35-44.1-3-1, but the former version of the statute was in
effect at the time of J.P.’s offense, so we use it for our analysis.
                                                  4
       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 . . . . 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.

Czobakowsky v. State, 566 N.E.2d 87, 89 (Ind. Ct. App. 1991). J.P. running into D.W.’s

house when Officer Julian approached in his squad car therefore is not sufficient to show

that he resisted law enforcement.

       Officer Julian testified that he identified himself and yelled for J.P. to stop

running. Tr. p. 9. When J.P. did not stop running, Officer Julian ran inside the house and

detained him. Id. However, on cross-examination, Officer Julian was shown the video of

the incident which showed that when J.P. was about to enter the home, Officer Julian was

still in his car with the door and window shut. Id. at 18. It was not until one second later,

when J.P. had entered the house, that Officer Julian opened his car door and was in the

process of getting out. Id. at 18-19. Officer Julian was asked “Could this young man be

hearing you yelling at this point in time in your opinion?” to which Officer Julian

answered “Possibly.” Id. at 19. “Possibly” as the only evidence that J.P. was aware that

Officer Julian ordered him to stop is not good enough to satisfy the State’s burden that

J.P. resisted law enforcement beyond a reasonable doubt. Additionally, Officer Julian

testified that when he got inside the home, J.P. was right inside the door and was not

attempting to flee. Id. at 27.

       This is not sufficient evidence to find that J.P. knowingly or intentionally fled

from Officer Julian after he identified himself and ordered J.P. to stop. We therefore

reverse the juvenile court’s true finding of delinquency for resisting law enforcement.
                                             5
      Reversed.

BAILEY, J., and BROWN, J., concur.




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