                                                                                 FILED
                                                                            Apr 20 2018, 10:34 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Rory Gallagher                                             Curtis T. Hill, Jr.
Marion County Public Defender                              Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                      Marjorie Lawyer-Smith
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Kavonya Jones,                                             April 20, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           49A02-1708-CR-1950
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable David J. Certo,
Appellee-Plaintiff.                                        Judge
                                                           The Honorable David Hooper,
                                                           Magistrate
                                                           Trial Court Cause No.
                                                           49G12-1609-CM-36641



Bradford, Judge.



Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018                            Page 1 of 15
                                            Case Summary
[1]   On September 16, 2016, Kavonya Jones fled from police officers who were

      trying to locate an individual who was thought to be her boyfriend. She was

      subsequently charged with and convicted of Class A misdemeanor resisting law

      enforcement and Class A misdemeanor driving while suspended. On appeal,

      Jones challenges her conviction for resisting law enforcement. Specifically,

      Jones contends that the evidence is insufficient to sustain her conviction.

      Alternatively, she contends that the trial court erred in instructing the jury and

      in finding that alleged prosecutorial misconduct did not warrant a mistrial.

      Concluding that the evidence is sufficient to sustain the challenged conviction

      and finding no error by the trial court, we affirm.



                             Facts and Procedural History
[2]   At approximately 12:30 p.m. on September 16, 2016, Corporal Travazz

      Buckley, Deputy Brandon Berry, and Lieutenant Kenny Sanders (collectively,

      “the Officers”), all of the Marion County Sherriff’s Department, were on duty

      working with the Department’s warrant unit in Indianapolis. The Officers were

      attempting to locate Tyrone Esters, who had outstanding warrants for battery

      on law enforcement and burglary. Esters was described to the Officers as a

      “dark-complected, medium-sized male” who was about six feet tall and was

      known to change his hairstyle, sometimes wearing his hair in “dreads.” Tr.

      Vol. II, p. 17.



      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018   Page 2 of 15
[3]   While attempting to locate Esters, the Officers conducted surveillance on a

      residence located at 4630 East 34th Street. The Officers chose this residence

      “based on information that [Jones] was living at the address and [because

      Lieutenant Sanders] had serval prior contacts with [Jones and] knew she was

      associated with” Esters. Tr. Vol. II, p. 16. Specifically, Jones “was known to

      [Lieutenant Sanders] as the girlfriend of Tyrone Esters at the time.” Tr. Vol. II,

      p. 18. The Officers had also received information that Esters could be driving a

      gold “Chevy Malibu.” Tr. Vol. II, p. 161. Lieutenant Sanders knew that Jones

      frequently drove a gold Malibu. While Corporal Buckley watched the

      residence, Lieutenant Sanders and Deputy Berry waited in a nearby parking

      lot.1


[4]   Corporal Buckley observed Jones drive away from her residence in the gold

      Malibu. When Jones returned a short time later, Corporal Buckley observed a

      black male who appeared to match Esters’s general description in the passenger

      seat of the vehicle. Corporal Buckley informed the other officers that he may

      have spotted their target. They then made their way to Jones’s residence. Once

      Lieutenant Sanders arrived, he pulled his vehicle behind the gold Malibu and

      he and Corporal Buckley activated their emergency lights.


[5]   After the Officers activated their emergency lights, Jones accelerated her vehicle

      such that “a little bit of dust kicked up.” Tr. Vol. II, p. 163. Corporal Buckley




      1
        Lieutenant Sanders did not initially approach the residence because he “had had contact with [Jones]
      previously, and he was afraid that his [undercover] vehicle might be noticed.” Tr. Vol. II, p. 161.

      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018                       Page 3 of 15
      was forced to swerve to avoid being hit by Jones who pulled out on to 34 th

      Street “without stopping at the stop sign.” Tr. Vol. II, p. 165. Jones then

      turned onto Drexel Avenue before stopping. Corporal Buckley testified that

      Jones “knows [his] truck” and that his lights and sirens were on as he

      approached her vehicle. Tr. Vol. II, p. 10.


[6]   After Jones stopped her vehicle, the Officers ordered both Jones and the

      passenger to exit the vehicle. Once out of the vehicle, it was clear to the

      Officers that the passenger was not Esters. Nevertheless, Jones was placed

      under arrest for fleeing from the Officers and for driving with a suspended

      license.


[7]   On September 17, 2016, the State charged Jones with Class A misdemeanor

      resisting law enforcement by fleeing and Class A misdemeanor driving while

      suspended. Before the matter proceeded to trial, Jones filed a motion to

      suppress in which she alleged that her arrest was illegal because the Officers did

      not have reasonable suspicion to stop her. Following a hearing, the trial court

      denied Jones’s motion. At the end of trial, a jury found Jones guilty as charged.



                                  Discussion and Decision
[8]   On appeal, Jones challenges her conviction for resisting law enforcement.

      Specifically, Jones contends that the evidence is insufficient to sustain her

      conviction. Alternatively, she contends that the trial court erred in instructing




      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018   Page 4 of 15
      the jury and in finding that the deputy prosecutor’s alleged misconduct did not

      warrant a new trial.


                               I. Sufficiency of the Evidence
[9]   In challenging her conviction for resisting law enforcement, Jones argues that

      the evidence is insufficient to prove that the Officers had reasonable suspicion

      to stop her.


               When reviewing the sufficiency of the evidence to support a
               conviction, appellate courts must consider only the probative
               evidence and reasonable inferences supporting the verdict. It is
               the fact-finder’s role, not that of appellate courts, to assess
               witness credibility and weigh the evidence to determine whether
               it is sufficient to support a conviction. To preserve this structure,
               when appellate courts are confronted with conflicting evidence,
               they must consider it most favorably to the trial court’s ruling.
               Appellate courts affirm the conviction unless no reasonable fact-
               finder could find the elements of the crime proven beyond a
               reasonable doubt. It is therefore not necessary that the evidence
               overcome every reasonable hypothesis of innocence. The
               evidence is sufficient if an inference may reasonably be drawn
               from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). “In essence, we assess only whether the verdict could be

      reached based on reasonable inferences that may be drawn from the evidence

      presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

      original). Upon review, appellate courts do not reweigh the evidence or assess

      the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

      2002).
      Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018    Page 5 of 15
[10]   In order to prove that Jones committed the charged offense, the State was

       required to prove that Jones “knowingly or intentionally … fle[d] from a law

       enforcement officer after the officer ha[d] by visible or audible means, including

       operation of the law enforcement officer’s siren or emergency lights, identified

       himself … and ordered [her] to stop.” Ind. Code § 35-44.1-3-1. The Indiana

       Supreme Court has found this statute to be constitutional. Gaddie v. State, 10

       N.E.3d 1249, 1255 (Ind. 2014). In doing so, however, the Court stated the

       following:


                we hold that the statutory element “after the officer has …
                ordered the person to stop” must be understood to require that
                such order to stop rest on probable cause or reasonable suspicion,
                that is specific, articulable facts that would lead the officer to
                reasonably suspect that criminal activity is afoot. Absent proof
                that an officer’s order to stop meets such requirements, the
                evidence will be insufficient to establish the offense of Resisting
                Law Enforcement by fleeing.


       Id. Thus, in order to conclude that the evidence is sufficient to sustain Jones’s

       conviction, we must also conclude that the Officers had reasonable suspicion to

       stop Jones.2


[11]   In denying Jones’s motion to suppress, the trial court determined prior to the

       start of trial that the Officers had reasonable suspicion to stop Jones. We

       review such determinations de novo. See Robinson v. State, 5 N.E.3d 362, 365



       2
         We note that Jones does not dispute that she fled from the Officers. She only argues that the Officers did
       not have reasonable suspicion to stop her on the day in question.

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018                         Page 6 of 15
       (Ind. 2014); Myers v. State, 839 N.E.2d 1146, 1150 (Ind. 2005) (providing that

       the determination of reasonable suspicion is a question of law that requires de

       novo review on appeal).


[12]   The record reveals that the Officers originally approached Jones’s residence

       because they were trying to serve active warrants on Esters. They had reason to

       believe that Jones was dating Esters, Esters was staying at Jones’s residence,

       and Esters could be using the vehicle that was commonly driven by Jones. The

       Officers also had a general physical description of Esters. Just before initiating

       the stop, Corporal Buckley observed a black male sitting in the passenger seat of

       Jones’s vehicle that seemed to match Esters’s general physical description.

       Although the passenger did not have dreadlocks, the Officers knew that Esters

       was prone to change his hairstyle, sometimes wearing his hair in dreadlocks

       and other times not. Further, the Officers were not able to definitively

       determine whether the passenger was Esters without approaching the vehicle.

       These articulable facts demonstrate that the Officers had reason to believe that

       Esters, a wanted felon with multiple active warrants, may have been the

       passenger in Jones’s vehicle. Thus, we conclude that the evidence is sufficient

       to prove that the Officers had reasonable suspicion to stop Jones.


                                         II. Jury Instructions
[13]   Jones alternatively contends that the trial court erred in instructing the jury.

       Specifically, Jones argues that the trial court’s instructions to the jury should

       have contained some reference to the fact that she could only be found guilty if


       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018   Page 7 of 15
       the Officers had probable cause or reasonable suspicion to initiate the stop. The

       record reveals that Jones did not make this argument before the trial court and,

       as such, must prove that the alleged error amounted to fundamental error. See

       Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016).


[14]   Instructing the jury is a matter within the sound discretion of the trial court and

       we will reverse a trial court’s decision to tender or reject a jury instruction only

       if there is an abuse of that discretion. Id.


               We determine whether the instruction states the law correctly,
               whether it is supported by record evidence, and whether its
               substance is covered by other instructions. Jury instructions are
               to be considered as a whole and in reference to each other; error
               in a particular instruction will not result in reversal unless the
               entire jury charge misleads the jury as to the law in the case.


                                                         ****


               Error is fundamental if it is a substantial blatant violation of basic
               principles and where, if not corrected, it would deny a defendant
               fundamental due process. This exception to the general rule
               requiring a contemporaneous objection is narrow, providing
               relief only in egregious circumstances that made a fair trial
               impossible.


       Id. (internal citations and quotations omitted).


[15]   Here, it is undisputed that the instruction tendered to the jury correctly lists the

       elements set forth in Indiana Code section 35-44.1-3-1(a)(3). As such, given the

       specific nature of Jones’s appellate contention, the instruction can only be


       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018    Page 8 of 15
       found to be deficient if it was necessary to instruct the jury as to a finding of

       reasonable suspicion.


                                       A. Reasonable Suspicion
[16]   “The U.S. Supreme Court has declared that the Fourth Amendment’s

       protections extend to brief investigatory stops of persons or vehicles that fall

       short of traditional arrest.” Armfield v. State, 918 N.E.2d 316, 318 (Ind. 2009)

       (internal citation and quotation omitted). Under applicable precedent, “an

       officer is permitted to stop and briefly detain a person for investigative purposes

       if the officer has a reasonable suspicion supported by articulable facts that

       criminal activity may be afoot, even if the officer lacks probable cause.” Id.

       (internal quotations omitted). “Generally speaking, evidence obtained pursuant

       to an unlawful seizure must be excluded under the fruit of the poisonous tree

       doctrine.” Clark v. State, 994 N.E.2d 252, 266 (Ind. 2013). “This extension of

       the exclusionary rule bars evidence directly obtained by the illegal search or

       seizure[.]” Id.


[17]   In this case, the question of whether the Officers had reasonable suspicion to

       initiate the stop first arose as a preliminary matter in Jones’s motion to

       suppress. Evidence Rule 104(a) provides that the trial court “must decide any

       preliminary question about whether … evidence is admissible.” (Emphasis

       added). “The court must conduct any hearing on a preliminary question so that

       the jury is not present and cannot hear if … justice so requires.” Ind. Evid.

       Rule 104(c). Further, “[t]o the extent practicable, the court must conduct a jury


       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018    Page 9 of 15
       trial so that inadmissible evidence is not suggested to the jury by any means.”

       Ind. Evid. Rule 103(d). It is well-established that regarding the admissibility of

       evidence, whether raised in a motion to suppress or at trial, trial courts have

       broad discretion. See Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014); Kelley v.

       State, 825 N.E.2d 420, 424 (Ind. Ct. App. 2005); Washington v. State, 784

       N.E.2d 584, 587 (Ind. Ct. App. 2003).


                                                    B. Analysis
[18]   In ruling on Jones’s motion to suppress evidence relating to the stop at issue,

       the trial court conducted a preliminary hearing during which it considered

       whether the Officers had reasonable suspicion to initiate the stop.3 Thus, by the

       time the matter proceeded to trial, the trial court had already determined that

       the Officers had reasonable suspicion when they stopped Jones. 4 We believe

       that the trial court’s determination regarding reasonable suspicion satisfied the

       requirement set forth in Gaddie that such a determination be made. Gaddie did

       not specifically indicate that such was a question for the jury, see 10 N.E.3d at

       1255, and Jones has pointed to no authority suggesting the question was one for

       the jury. Thus, because the trial court had found that the Officers had




       3
         It is generally understood that (1) reasonable suspicion is a legal conclusion made by the trial court, not a
       factual finding made by a jury and (2) a conclusion of whether reasonable suspicion exists will often be based
       upon facts that are not admissible before the jury.
       4
         We note that while we were unable to find a case that explicitly states as such, a review of both Federal and
       Indiana stop and seizure jurisprudence indicates that determinations of whether officers had reasonable
       suspicion to initiate a stop are made by the trial court.

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018                         Page 10 of 15
       reasonable suspicion to initiate the stop, we do not believe that it was necessary

       to resubmit the question to the jury.


[19]   Given that the question of whether the Officers had reasonable suspicion to

       stop Jones had been decided by the trial court and need not have been presented

       to the jury, we cannot say that the alleged deficiency in the challenged jury

       instruction amounted to error, much less fundamental error. We therefore

       conclude that the trial court did not abuse its discretion in instructing the jury.


                        III. Alleged Prosecutorial Misconduct
[20]   Jones also contends that the trial court erroneously determined that the

       cumulative effect of four alleged instances of prosecutorial misconduct did not

       unfairly prejudice her. Jones argues that the deputy prosecutor committed

       prosecutorial misconduct on four occasions during closing argument.

       Specifically, Jones claims that the deputy prosecutor committed prosecutorial

       misconduct by: (1) indicating that the State “would request that when you go

       into that jury room that you seek justice,” tr. Vol. II, p. 183; (2) telling the jury

       that they could “take [the officer’s] word for that,” tr. Vol. II, p. 195; (3) stating

       that “[t]he officer testified today that she had seen him before in that unmarked

       vehicle,” tr. Vol. II, p. 196; and (4) stating that “[n]obody was hurt when she

       flees from law enforcement, thankfully. But there could have been.” Tr. Vol.

       II, p. 197.


[21]   “In reviewing a properly preserved claim of prosecutorial misconduct, we

       determine (1) whether the prosecutor engaged in misconduct, and if so, (2)

       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018   Page 11 of 15
       whether the misconduct, under all of the circumstances, placed the defendant in

       a position of grave peril to which he or she would not have been subjected.”

       Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). “Whether a prosecutor’s

       argument constitutes misconduct is measured by reference to case law and the

       Rules of Professional Conduct.” Id. “The gravity of peril is measured by the

       probable persuasive effect of the misconduct on the jury’s decision rather than

       the degree of impropriety of the conduct.” Id.


[22]           When an improper argument is alleged to have been made, the
               correct procedure is to request the trial court to admonish the
               jury. If the party is not satisfied with the admonishment, then he
               or she should move for mistrial. Failure to request an
               admonishment or to move for mistrial results in waiver. Where a
               claim of prosecutorial misconduct has not been properly
               preserved, our standard for review is different from that of a
               properly preserved claim. More specifically, the defendant must
               establish not only the grounds for the misconduct but also the
               additional grounds for fundamental error. Fundamental error is
               an extremely narrow exception that allows a defendant to avoid
               waiver of an issue. It is error that makes a fair trial impossible or
               constitutes clearly blatant violations of basic and elementary
               principles of due process presenting an undeniable and
               substantial potential for harm.


       Id. (citations, quotation, and brackets omitted).


[23]   As for the first two comments, the trial court sustained Jones’s objections and

       admonished the jury to disregard the comments. We presume that the trial

       court’s admonishment cured any potential harm. See Green v. State, 587 N.E.2d

       1314, 1317 (Ind. 1992) (providing that appellate courts may presume that a


       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018   Page 12 of 15
       timely and accurate admonishment by the trial court will cure any defect); see

       also Webster v. State, 413 N.E.2d 898, 901, 274 Ind. 668, 673 (1980) (providing

       that “[o]n appeal, [appellate courts] must presume that the jury obeyed the trial

       court’s instructions in reaching its verdict” and when the jury has been

       instructed not to consider specific evidence or argument, “we will assume that

       the jury followed the instructions.”).


[24]   As for the remaining two comments, the record reveals that although Jones

       objected to the statements, she did not request an admonishment or a mistrial.

       Jones, therefore, did not properly preserve her challenge to these comments

       and, as a result, must prove that the challenged comments amounted to

       fundamental error. See Cooper, 854 N.E.2d at 835.


[25]   With respect to the comment that Jones had previously seen Lieutenant

       Sanders in his unmarked vehicle, Jones claims that the deputy prosecutor

       discussed a fact that had not been presented to the jury. The State concedes

       that prosecutors may not argue facts not in evidence, Neville v. State, 976 N.E.2d

       1252, 1263 (Ind. Ct. App. 2012), but argues that did not happen here. The

       record reveals, contrary to Jones’s claim, that the record contained such

       testimony. Specifically, Lieutenant Sanders testified, without objection, that he

       had been driving the same unmarked Dodge Charger when he had had prior

       interactions with Jones. As such, the deputy prosecutor did not mention a fact

       not presented to the jury, but rather a fact that was admitted, without objection,

       through Lieutenant Sanders’s testimony.



       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018   Page 13 of 15
[26]   With respect to the comment suggesting that someone could have been hurt

       when Jones fled from law enforcement, Jones claims that this comment was

       improper as it “only served to frighten the jury.” Appellant’s Br. p. 16. We

       disagree. After defense counsel attempted to argue that Jones’s flight did not

       matter because it was so short in duration, the State responded as follows:


               We are talking about a 10 to 15 second resist, but does that 10 to
               15 seconds not matter? It does. Nobody was hurt when she blew
               through that intersection. Nobody was hurt when she flees from
               law enforcement, thankfully. But there could have been.


       Tr. Vol. II, p. 197. Even if this statement was ordinarily objectionable, it was

       made in response to defense counsel’s argument that Jones’s act of fleeing from

       the Officers was so short in duration that it should not matter. “Prosecutors are

       entitled to respond to allegations and inferences raised by the defense even if the

       prosecutor’s response would otherwise be objectionable.” Cooper, 854 N.E.2d

       at 836. As such, we cannot say that the deputy prosecutor’s comment was

       improper, much less that it amounted to fundamental error.


[27]   Furthermore, we do not agree with Jones’s claim that the cumulative effect of

       the deputy prosecutor’s allegedly improper statements rendered a fair trial

       impossible. In addition to the specific admonishments to disregard the first two

       challenged comments, the trial court also instructed the jury that any

       “[s]tatements made by the attorneys are not evidence.” Appellant’s App. Vol.

       II, 136. Again, we assume the jury followed the trial court’s instructions and

       did not consider the deputy prosecutor’s statements to be evidence. See Green,


       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018   Page 14 of 15
       587 N.E.2d at 1317. We agree with the State that the cumulative impact of the

       prosecutor’s allegedly improper statements was minimal given the evidence of

       Jones’s guilt. As such, we conclude that the trial court did not abuse its

       discretion in finding that the alleged prosecutorial misconduct did not warrant a

       mistrial.



                                                 Conclusion
[28]   In sum, we conclude that the evidence is sufficient to sustain Jones’s conviction

       for Class A misdemeanor resisting law enforcement. We also conclude that the

       trial court did not abuse its discretion in instructing the jury or in finding that

       the alleged prosecutorial misconduct did not warrant a mistrial.


[29]   The judgment of the trial court is affirmed.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1708-CR-1950 | April 20, 2018   Page 15 of 15
