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
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

GARY L. GRINER                                   GREGORY F. ZOELLER
Mishawaka, Indiana                               Attorney General of Indiana

                                                 MICHELLE BUMGARNER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana
                                                                               FILED
                                                                           Mar 07 2012, 9:30 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                    CLERK
                                                                                 of the supreme court,
                                                                                 court of appeals and
                                                                                        tax court




ANTWAIN D. SANDERS,                              )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 71A03-1107-CR-313
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                        The Honorable Jane Woodward Miller, Judge
                             Cause No. 71D01-1010-FD-1034


                                       March 7, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

MAY, Judge
          Antwain Sanders argues the evidence was insufficient to support his conviction of

Class D felony resisting law enforcement with a vehicle.1 We affirm.

                            FACTS AND PROCEDURAL HISTORY

          Around 1:30 p.m. on October 19, 2010, South Bend Police Officer Rufino Gayton

was at his home. He was off duty but in uniform. Officer Gayton heard his dogs, both of

which were in the backyard, barking “a little more loud” than normal. (Tr. at 78.)

Looking out his back door, Officer Gayton saw Sanders leaning into the back seat of a

vehicle. Sanders pulled out a computer monitor, raised it over his head, and slammed it

down onto the concrete. Sanders then sat in the driver’s seat of the vehicle and began to

drive.       Officer Gayton left his house, approached the vehicle, and in a “loud,

commanding voice” ordered Sanders to stop. (Id. at 83.) Sanders stopped the car a few

feet from Officer Gayton.             After making eye contact with Officer Gayton, Sanders

abruptly sped off, ignoring a stop sign.

          Officer Gayton drove his patrol car in pursuit of Sanders. Sanders’ vehicle was

not found, but Officer Gayton spotted Sanders walking in an alley. Officer Gayton

placed Sanders in the patrol car and drove him back to where Sanders had smashed the

computer monitor.          When they arrived, Officer Gayton opened the cruiser door for

Sanders and, as Sander exited the patrol car, Officer Gayton noticed an odor of alcohol

coming from Sanders.

          The State charged Sanders with Class C misdemeanor operating a motor vehicle



1
    Ind. Code § 35-44-3-3(b)(1)(A).
                                                  2
while intoxicated,2 Class D felony resisting law enforcement, and Class D felony

operating a motor vehicle while intoxicated after being convicted of operating a motor

vehicle while intoxicated.3 A jury found Sanders guilty of resisting law enforcement, but

not guilty of the operating while intoxicated charges. The court imposed a twenty-four

month sentence, with eighteen months suspended to probation.

                               DISCUSSION AND DECISION

          Sanders argues the evidence was insufficient to sustain his conviction of resisting

law enforcement with a vehicle. In reviewing sufficiency of evidence, we may not

reweigh evidence or judge credibility of witnesses. McHenry v. State, 820 N.E.2d 124,

126 (Ind. 2005). We consider only the probative evidence and reasonable inferences

supporting the trial court’s decision, id., and affirm unless “no reasonable fact-finder

could find the elements of the crime proven beyond a reasonable doubt.” Jenkins v.

State, 726 N.E.2d 268, 270 (Ind. 2000).

          A person who knowingly or intentionally “flees from a law enforcement officer

after the officer has, by visible or audible means . . . identified himself or herself and

ordered the person to stop” commits resisting law enforcement. Ind. Code § 35-44-3-

3(a)(3). The crime is a Class D felony if the person uses a vehicle while committing it.

Ind. Code § 35-44-3-3(b)(1)(A). Resisting law enforcement in a vehicle can include

driving at a high speed after learning of the law enforcement officer’s identity and being

ordered to stop. See Mason v. State, 944 N.E.2d 68, 71 (Ind. Ct. App. 2011), trans.


2
    Ind. Code § 9-30-5-2(a).
3
    Ind. Code § 9-30-5-3.
                                               3
denied.

       Sanders first claims Officer Gayton was not acting within the scope of his official

duties when he ordered Sanders to stop. We disagree. “An off-duty police officer can be

engaged in the lawful discharge of his duties.” Nieto v. State, 499 N.E.2d 280, 282 (Ind.

Ct. App. 1986). Among the “duties” of a police officer is the duty to “arrest, without

process, all persons who within view violate statutes, . . . and retain [those persons] . . .

until the cause of the arrest has been investigated.” Ind. Code § 36-8-3-6(c)(2). Officers

also act within the scope of their official duties when they make investigatory stops based

upon a reasonable suspicion of criminal activity. Haynes v. State, 937 N.E.2d 1248, 1253

(Ind. Ct. App. 2010), trans. denied.

       Sanders also argues there is insufficient evidence Officer Gayton was acting with

reasonable suspicion. We disagree. Reasonable suspicion for an investigatory stop exists

“when, based on a totality of the circumstances, the officer has a reasonable, articulable

suspicion that criminal activity is afoot.” Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct.

App. 2007) (citing Terry v. Ohio, 392 U.S. 1 (1968)). Officer Gayton saw Sanders reach

into a vehicle, lift a computer monitor over his head, smash it to the ground, then sit in

the driver’s seat and prepare to drive away. Officer Gayton testified: “due to the actions

of [Sanders], I thought maybe [the computer monitor] was stolen property.” (Tr. at 88.)

Because Officer Gayton had a reasonable, articulable suspicion that criminal activity was

afoot, he was acting within the scope of his official duties. See, e.g., Haynes, 937 N.E.2d

at 1253.


                                             4
       Next, Sanders claims that, even if Officer Gayton was acting within the scope of

his duties, there was no evidence Sanders fled after Officer Gayton identified himself as a

police officer and ordered him to stop. Thus, Sanders alleges, he did not “knowingly”

resist law enforcement.

       For purposes of Ind. Code § 35-44-3-3(a)(3), “both the police officer’s

identification and his order to stop may be accomplished by acts visible to the

defendant.” Cole v. State, 475 N.E.2d 306, 309 (Ind. 1985). When Sanders smashed the

computer monitor, it was daylight, and Officer Gayton was in uniform. Sanders made

eye contact with Officer Gayton and stopped his car within a few feet of Officer Gayton

after being ordered to stop. Sanders then accelerated quickly to speed away and ignored

a stop sign.   These facts permit a reasonable trier of fact to infer Sanders acted

knowingly. See, e.g., Spears v. State, 412 N.E.2d 81, 83 (Ind. Ct. App. 1980) (that

Spears sped away after officer approached within three feet of him demonstrated he

knowingly fled after the officer ordered him to stop).

       The State presented sufficient evidence Officer Gayton was acting within the

scope of his official duties and Sanders acted knowingly when he fled the scene after

being ordered to stop by an officer in full uniform. Accordingly, we affirm Sanders’

conviction of Class D felony resisting law enforcement with a vehicle.

       Affirmed.

CRONE, J., and BROWN, J., concur.




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