MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Jan 30 2020, 8:16 am
court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
R. Patrick Magrath                                       Curtis T. Hill, Jr.
Alcorn Sage Schwartz &                                   Attorney General of Indiana
Magrath, LLP
                                                         Thomas J. Flynn
Madison, Indiana                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Shawn Marshall,                                          January 30, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1746
        v.                                               Appeal from the Decatur Superior
                                                         Court
State of Indiana,                                        The Honorable Matthew D.
Appellee-Plaintiff                                       Bailey, Judge
                                                         Trial Court Cause No.
                                                         16D01-1903-F6-403



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020               Page 1 of 11
[1]   Shawn Marshall appeals his convictions and sentence for Level 6 Felony

      Resisting Law Enforcement1 and Level 5 Felony Escape,2 arguing that the

      evidence is insufficient to support the convictions and that the sentence is

      inappropriate in light of the nature of the offenses and Marshall’s character. We

      find the evidence to be sufficient and that the sentence is not inappropriate, but

      that double jeopardy principles prohibit allowing both convictions to stand. As

      such, we affirm the conviction and sentence for Level 5 Felony Escape, and

      remand with instructions to vacate the conviction of Level 6 Felony Resisting

      Law Enforcement.


                                                       Facts
[2]   On March 28, 2019, Decatur County Sheriff’s Deputy Patrick Graue detected a

      vehicle traveling seventy-seven miles per hour in a fifty-five-miles-per-hour zone

      on State Road 3/46 at County Road 450 West. Deputy Graue turned on his

      emergency lights and initiated a routine traffic stop. Upon approaching the

      stopped vehicle, Deputy Graue encountered Marshall as the driver. When he

      requested Marshall’s license and registration, Deputy Graue smelled burnt

      marijuana, but he refrained from immediately questioning Marshall and instead

      went back to his own vehicle to check the license and registration through

      dispatch.




      1
          Ind. Code § 35-44.1-3-1(a)(3), -(c)(1)(A).
      2
          I.C. § 35-44.1-3-4(a).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020   Page 2 of 11
[3]   While checking Marshall’s license and registration, Deputy Graue learned of

      Marshall’s extensive criminal history and requested that a second deputy be

      sent to the scene. Deputy Kevin Rohr arrived soon thereafter, and the two

      deputies then approached Marshall’s vehicle together. At that point, Deputy

      Graue informed Marshall that he smelled burnt marijuana coming from the

      vehicle and asked if there was anything illegal inside the vehicle. In response,

      Marshall “be[came] irate” and accused Deputy Graue of “harassing him” and

      “trying to frame him.” Tr. Vol. II p. 55. The two deputies calmly ordered

      Marshall to exit his vehicle and explained that they were going to perform a

      probable cause search of the vehicle. But Marshall refused to exit the vehicle,

      and he repeatedly stated “you’re not searching my car” and that he did not give

      his consent to a search. Id. at 56. The deputies continued to calmly try to order

      Marshall to get out of the car, explaining again that the odor of burnt marijuana

      emanating from the interior of the car gave them probable cause to search, but

      that if no illegal substance was found, Marshall would be free to go.


[4]   Despite these orders, “[Marshall’s] hostility continued to escalate.” Id. at 57.

      Deputy Graue began to request that another officer be dispatched to the scene.

      But, as he was doing so, he “observed Mr. Marshall take his stare off Deputy

      Rohr and . . . began looking straight ahead as his right hand went down to the

      gearshift, placing his vehicle into forward motion.” Id. The two deputies

      shouted for Marshall to stop, but Marshall instead proceeded to accelerate the

      vehicle and drove at a high speed down the road and away from the traffic stop.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020   Page 3 of 11
[5]   Both deputies returned to their vehicles and initiated emergency pursuit of

      Marshall, following him for approximately two miles before Marshall suddenly

      pulled over and parked on the side of the highway. The deputies approached his

      vehicle with their service weapons drawn and ordered Marshall out of the car.

      Marshall finally complied and was promptly placed under arrest.


[6]   The same day, the State charged Marshall with one count of Level 6 felony

      resisting law enforcement. On April 26, 2019, the State moved to amend the

      charging information by adding one count of Level 5 felony escape, and the

      trial court granted the motion on April 29, 2019. A jury trial was held on June

      3, 2019, at the conclusion of which the jury found Marshall guilty on both

      counts. At a sentencing hearing held on June 28, 2019, the trial court sentenced

      Marshall to two and one-half years for resisting law enforcement and six years

      for escape, to be served concurrently, for an aggregate sentence of six years fully

      executed. Marshall now appeals.


                                   Discussion and Decision
                                        I. Double Jeopardy
[7]   At the outset, we must confront a double jeopardy problem. The State concedes

      the issue and asks that we vacate the conviction for resisting law enforcement.


[8]   Under Article 1, Section 14 of the Indiana Constitution, “[n]o person shall be

      put in jeopardy twice for the same offense.” This has been interpreted by our

      Supreme Court to mean “that two or more offenses are the ‘same offense’ in

      violation of Article 1, Section 14 of the Indiana Constitution if, with respect to

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020   Page 4 of 11
       either the statutory elements of the challenged crimes or the actual evidence used

       to convict, the essential elements of one challenged offense also establish the

       essential elements of another challenged offense.” Richardson v. State, 717

       N.E.2d 32, 49 (Ind. 1999) (emphases in original).


[9]    Marshall argues, and the State readily agrees, that the convictions for both

       resisting law enforcement and escape are based upon the same actual evidence.

       We agree. As such, both convictions cannot stand without violating double

       jeopardy principles. We therefore remand with instructions to vacate the Level

       6 felony resisting law enforcement conviction.


                                II. Sufficiency of the Evidence
[10]   Next, Marshall argues that the evidence is insufficient to support either the

       resisting law enforcement conviction or the escape conviction. 3 In reviewing the

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

       probative evidence and the reasonable inferences supporting the conviction, and

       we will neither assess witness credibility nor reweigh the evidence. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm unless no reasonable

       factfinder could find the elements of the crime proved beyond a reasonable

       doubt. Id.




       3
        Because we have ordered the resisting law enforcement conviction to be vacated, we need not and will not
       address the evidence supporting that conviction.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020              Page 5 of 11
[11]   To convict Marshall of escape, the State had to prove beyond a reasonable

       doubt that Marshall 1) intentionally 2) fled 3) from lawful detention. I.C. § 35-

       44.1-3-4(a). Marshall’s conduct was unquestionably intentional. “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). We agree with the State

       that “[p]utting one’s vehicle in drive and pressing down on the gas pedal is a

       volitional act. A vehicle doesn’t just drive away by itself. It requires intent by

       the driver to operate in such a fashion.” Appellee’s Br. p. 16.


[12]   With regards to the fleeing and lawful detention elements, Marshall argues that

       the evidence does not support a conclusion that he was detained before he

       drove away. Specifically, he contends that, because he was never placed in

       handcuffs, put in jail, or otherwise physically restrained, he was not lawfully

       detained for purposes of the escape offense. He also emphasizes that he was not

       explicitly told he was being detained, advised of his rights, or asked for his

       consent before he drove away from the traffic stop.


[13]   In the traffic stop context, Indiana Code section 34-28-5-3 authorizes detention

       by a law enforcement officer of a person who the officer in good faith believes

       has committed an infraction or ordinance violation. Indiana Code section 35-

       31.5-2-186 enumerates a list of circumstances that qualify as “lawful detention,”

       which includes the types of detention cited by Marshall—arrest, being placed in

       jail, and so forth—as well as “any other detention for law enforcement

       purposes.” Our Court has interpreted this catch-all provision to mean that a

       person can be lawfully detained even if they are not subject to the types of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020   Page 6 of 11
       restraint Marshall points out were lacking in his case. Rather, “what is critical

       in determining the meaning of ‘any other detention for law enforcement

       purposes’ is that an individual is being detained so that he is subject to

       legitimate law enforcement purposes.” Anglin v. State, 787 N.E.2d 1012, 1017

       (Ind. Ct. App. 2003).


[14]   In Anglin, the Court found that the defendant had been subject to lawful

       detention for purposes of the escape statute where he exited the courthouse after

       being ordered by the trial court to wait in the hallway for transportation to jail

       to serve the sentence he had just been ordered to serve. “Anglin was ‘detained’

       by the trial court in that he was not free to leave the building as soon as he was

       informed that the Sheriff’s Department would pick him up at the designated

       location in the courthouse. That Anglin was not in the physical custody of the

       transport officer at the time that he fled does not exclude the conclusion that he

       was in ‘detention for law enforcement purposes.’” Id.


[15]   Here, the same logic can be applied to Marshall: though not under the physical

       control of the deputies, he was nonetheless being detained for the law

       enforcement purposes of conducting a traffic stop and a probable cause search

       of his vehicle, and the officers repeatedly informed him of such and ordered

       him out of his vehicle. There was no indication at the time Marshall drove

       away that he was free to go; the officers even told him as much when they

       explained that he would only be free to go following the vehicle search if no

       illegal substances were found. As such, we find that Marshall was subject to



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020   Page 7 of 11
       lawful detention at the time he fled the scene, and that all elements of the

       escape offense are therefore supported by sufficient evidence.


                                                 III. Sentence
[16]   Marshall next argues that his sentence is inappropriate in light of the nature of

       the offense and his character. Indiana Appellate Rule 7(B) provides that this

       Court may revise a statutorily authorized sentence “if, after due consideration

       of the trial court’s decision, the Court finds that the sentence is inappropriate in

       light of the nature of the offense and the character of the offender.” In

       conducting this review, “substantial deference” must be given to the trial court’s

       decision, “since the ‘principal role of [our] review is to attempt to leaven the

       outliers,’ and not to achieve a perceived ‘correct’ sentence.” Knapp v. State, 9

       N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257,

       1259 (Ind. 2013)) (internal citations omitted). The defendant bears the burden

       of proving that the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073,

       1080 (Ind. 2006).


[17]   For Level 5 felony escape, Marshall faced a term of one to six years, with an

       advisory sentence of three years. Ind. Code § 35-50-2-6(b). The trial court

       imposed a maximum six-year term.4




       4
         Because both sentences were ordered to be served concurrently, our instructions to vacate the resisting law
       enforcement conviction—which carried the lesser of the two sentences—will impact neither the length of the
       sentence nor our analysis regarding its inappropriateness.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020                 Page 8 of 11
[18]   With respect to the nature of the offense, Marshall sped away from the officers

       in a manner that forced Deputy Rohr to quickly back up into oncoming traffic

       to avoid being harmed by Marshall’s moving vehicle. Though Deputy Rohr was

       not injured, Marshall’s actions nonetheless endangered the life of another

       human. The offense also demonstrated a high lack of respect for law

       enforcement, as Marshall blatantly ignored orders and became increasingly

       hostile and angry with officers despite their attempts to remain calm and keep

       the situation under control.


[19]   With respect to his character, we first note Marshall’s extensive criminal

       history. Marshall has been charged with over eleven felonies since 1990, and

       since 2004 has been convicted and sentenced for two additional felonies,

       robbery and battery resulting in bodily injury. Even now, all of the following

       felony charges are currently pending against Marshall for offenses that occurred

       on or after July 18, 2018: unlawful possession of a syringe, synthetic identity

       deception, possession of methamphetamine, maintaining a common nuisance

       via controlled substances, and intimidation by way of threatening to commit a

       forcible felony.


[20]   Additionally, Marshall was out on bail for two of those felony charges when he

       committed the offense in this case. He was also on probation in Georgia at the

       time he committed the present offense and violated his probation by fleeing the

       state to come to Indiana and by committing additional offenses while on

       probation.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020   Page 9 of 11
[21]   Furthermore, Marshall’s behavior while in jail has been far from commendable.

       From March to June 2019, when Marshall was incarcerated in the Decatur

       County Detention Center, Marshall had fifteen separate disciplinary incidents

       and misconduct write ups, and he has been described as “a very aggressive

       inmate, aggressive towards other inmates and then towards other staff. He

       constantly violates security protocols and security violations.” Tr. Vol. II. p.

       129. Among other things, he has been written up for threatening to throw feces

       and bodily fluids on staff members, covering cameras and lights, flooding his

       cell, and getting into physical altercations, some of which involved makeshift

       weapons. See id. at 130-33. Marshall is also known to be a current member of a

       gang and has been evaluated as having a high likelihood to reoffend.


[22]   Marshall argues that the chronological remoteness of much of his criminal

       history—with multiple charges and offenses occurring over ten years ago—and

       the difference in nature of those offenses from the present offense render the

       imposition of a maximum sentence inappropriate. While the chronological

       remoteness of prior criminal history should be taken into account, “we will not

       say that remoteness in time, to whatever degree, renders a prior conviction

       irrelevant,” and it is still within the trial court’s discretion to consider it an

       aggravating circumstance. Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002).

       And here, Marshall’s criminal history is not limited to those charges and

       convictions that are chronologically distant, but rather represents a

       longstanding pattern, continuing into the present, of an irreverence towards the




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020   Page 10 of 11
       law, aggressiveness towards others, and a complete lack of remorse and

       willingness to change his behavior.


[23]   We do not find the six-year maximum sentence imposed by the trial court to be

       inappropriate in light of the nature of the offense and Marshall’s character.


[24]   The judgment of the trial court is affirmed and remanded with instructions to

       vacate the conviction for Level 6 felony resisting law enforcement.


       Riley, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020   Page 11 of 11
