MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Mar 13 2019, 8:24 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Amy D. Griner                                            Curtis T. Hill, Jr.
Mishawaka, Indiana                                       Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Yorlin Bunkky Tharbs,                                    March 13, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1336
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1508-F3-39



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019                  Page 1 of 8
                                       Statement of the Case

[1]   Yorlin Tharbs (“Tharbs”) appeals his conviction, following a jury trial, for

      Level 3 felony resisting law enforcement.1 Tharbs argues that there was

      insufficient evidence as to the issue of identity to support his conviction.

      Concluding that there was sufficient probative evidence and reasonable

      inferences for jurors to find Tharbs guilty beyond a reasonable doubt, we affirm

      his conviction.


[2]   We affirm.


                                                     Issue

                 Whether there was sufficient evidence to support Tharbs’ resisting
                 law enforcement conviction.

                                                     Facts

[3]   Sometime during the night of October 5, 2014, and the early morning of

      October 6, 2014, deputies from the Elkhart County Sheriff’s Department were

      dispatched to a security alarm at a trailer factory. Deputy Eric Dilley (“Deputy

      Dilley”) arrived at the factory and observed a white Monte Carlo vehicle with

      four occupants. Deputy Dilley shined his flashlight towards the vehicle and

      yelled, “Sheriff’s Department stop!” (Tr. Vol. 2 at 82). The Monte Carlo sped

      out of the parking lot and accelerated westbound. Deputy Dilley was unable to



      1
          IND. CODE § 35-44.1-3-1.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019   Page 2 of 8
      pursue the vehicle and used his radio to notify other law enforcement personnel

      that the suspect vehicle had fled. The deputy provided a description of the

      vehicle and indicated the direction of travel.


[4]   Elkhart County Sheriff’s Department’s Bryant Byler (“Deputy Byler”) heard

      Deputy Dilley’s report and observed a white Monte Carlo driving at a high rate

      of speed. Deputy Byler activated his emergency lights and siren and pursued

      the vehicle. The pursuit continued into St. Joseph County, and the vehicle

      reached speeds in excess of 110 miles per hour.


[5]   At some point during the pursuit, the vehicle veered off of the road and clipped

      a pole. It then went into the air, flipped, and continued rotating until it landed

      against a tree. The vehicle “was wedged in a tree so . . . the left door of the

      car[,] the driver’s side[,] would have been pointing up to the sky. The right side

      was pointing to the ground.” (Tr. Vol. 2 at 98-99). It “wasn’t completely on its

      side, but it wasn’t on its wheels either.” (Tr. Vol. 3 at 13).


[6]   Officers from the St. Joseph County Police Department responded to the

      pursuit and joined Deputy Byler at the scene of the crash. They found Tharbs

      unconscious and entrapped in the driver’s seat. His upper body was leaning

      towards the passenger seat and “[t]he bottom portion of his body was under the

      driver’s side . . . pinned.” (Tr. Vol. 2 at 87). One other individual was inside of

      the vehicle and two others had been ejected, with one laying in the woods

      nearby and the other on the ground “just outside the passenger door by the

      front right tire.” (Tr. Vol. 3 at 49).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019   Page 3 of 8
[7]   Due to the severity of the crash, various types of emergency personnel

      responded to the scene. The Mishawaka Fire Department was tasked with

      extricating Tharbs, whose legs were pinned underneath the steering column in

      the driver’s seat. All of the occupants were transported to the hospital and

      received treatment for their extensive injuries. Mario Beristain (“Beristain”),

      the occupant found near the passenger door by the front tire, died as a result of

      the severity of his injuries.


[8]   Timothy Spencer (“Commander Spencer”), a member of the Mishawaka Police

      Department, Commander of the St. Joseph County Fatal Crash Team, and

      traffic reconstructionist, also responded to the scene. Upon his arrival, he and

      his team engaged in a process called photogrammetry to reconstruct the

      accident.2 Commander Spencer later testified that, based on the reconstruction,

      his training, and experience, Tharbs was the driver of the vehicle.


[9]   On August 5, 2015, the State charged Tharbs with six counts. However, in

      January of 2017, the state amended the charging information to three counts,

      including one count of resisting law enforcement as a Level 3 felony and two

      counts of resisting law enforcement as Level 5 felonies. A four-day trial

      commenced on March 12, 2018. Tharbs’ defense was that Beristain was driving

      the vehicle. During the trial, five members from the Mishawaka Fire

      Department, three officers from the Mishawaka Police Department, three



      2
       Merriam–Webster’s Online Dictionary defines photogrammetry as “the science of making reliable
      measurements by the use of photographs[.]” Merriam–Webster Online Dictionary, available at
      http://www.merriam-webster.com/dictionary/photogrammetry (last visited February 28, 2019).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019              Page 4 of 8
       officers from the St. Joseph County Police Department, two deputies from the

       Elkhart County Sheriff’s Department, and one officer from the South Bend

       Police Department all testified to what they observed on the night of the

       accident. Apart from one deputy from the Elkhart Sheriff’s Department, all of

       the witnesses listed above were at the scene of the crash. Their collective

       testimony at trial, based on their various observations, indicated that Tharbs

       was in the driver’s seat of the vehicle prior to the crash. The jury found Tharbs

       guilty of all charges.


[10]   At Tharbs’ sentencing hearing, the trial court entered a judgment of conviction

       as to the Level 3 felony resisting law enforcement, withholding judgment on the

       other two counts. Tharbs was sentenced to nine (9) years, with six (6) years

       executed on St. Joseph County Community Corrections and three (3) years

       suspended to probation. Tharbs now appeals. Additional facts will be provided

       as necessary.


                                                   Decision

[11]   On appeal, Tharbs challenges the sufficiency of the evidence for his Level 3

       felony resisting law enforcement conviction. Our standard of review for

       sufficiency of evidence claims is well-settled. We do not assess the credibility of

       the witnesses or reweigh the evidence in determining whether the evidence is

       sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only

       the probative evidence and reasonable inferences supporting the verdict. Id.

       Thus, the evidence is not required to overcome every reasonable hypothesis of

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019   Page 5 of 8
       innocence and is sufficient if an inference may reasonably be drawn from it to

       support the verdict. Id. at 147.


[12]   A person commits resisting law enforcement as a Class A misdemeanor if he

       knowingly or intentionally “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[.]” I.C. § 35-44.1-3-1(a)(3). The offense is elevated

       to a Level 3 felony if, while committing the offense, “the person operates a

       vehicle in a manner that causes the death of another person[.]” I.C. § 35-44.1-3-

       1(b)(3).


[13]   Tharbs claims that the evidence was insufficient to prove that he was driving

       the vehicle at the time of the accident and therefore fleeing from law

       enforcement officers. In addressing Tharbs’ claim, we note that identification

       testimony need not necessarily be unequivocal to sustain a conviction.

       Holloway v. State, 983 N.E.2d 1175, 1178 (Ind. Ct. App. 2013). In addition, the

       elements of an offense and the identity of the accused may be established

       entirely by circumstantial evidence and the logical inferences drawn therefrom.

       Id. As with other sufficiency matters, we will not weigh the evidence or resolve

       questions of credibility when determining whether the identification evidence is

       sufficient to sustain a conviction. Id. Rather, we examine the evidence and the

       reasonable inferences therefrom that support the conviction. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019   Page 6 of 8
[14]   Our review of the record reveals that testimony of multiple officers established

       that Tharbs was in the driver’s seat of the crashed Monte Carlo. As detailed

       above, several law enforcement and emergency personnel responded to the

       scene of the accident. The witnesses recounted their various observations at

       trial and all came to the same conclusion – that Tharbs’ “legs were pinned

       underneath . . . the dash and the steering wheel. And then his body was lying

       kind of across the [front passenger] seat because of the car being titled.” (Tr.

       Vol. 2 at 99).


[15]   Further, Tharbs’ entrapped position in the vehicle also indicated that he was the

       driver. Commander Spencer, an accredited traffic reconstructionist, testified as

       follows:


               The damage to the car was very telling, . . . but what was unique
               about this case and the best evidence as far as who was driving or
               who was where in the car, the best piece of information that we
               could ever hope for is entrapment. Well, it’s obviously very
               unfortunate for those who are entrapped. It’s a huge piece of
               evidence and the majority of my opinion in this case was based
               on the entrapment.

                                                       ***


               If, if there’s entrapment, that is the strongest piece of evidence, I
               feel, that can exist of to where somebody was sitting when the
               damage occurred.

                                                       ***


               But, like, I said, the majority of, of my opinion here was based on
               what I’ve always found, and, I believe, is industry wide and the
               biggest and best possible piece of evidence you can ever have


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019   Page 7 of 8
               when it comes to determining where people [are] sitting is
               entrapment.

       (Tr. Vol. 3 at 17, 30, 37). Commander Spencer concluded that based on his

       investigation, training, and experience, Tharbs was the driver of the vehicle.


[16]   Viewing the probative evidence presented and the reasonable inferences drawn

       therefrom, we conclude that the State presented sufficient evidence to support

       Tharbs’ resisting law enforcement conviction. Tharbs’ arguments otherwise

       amount to a request for this Court to reweigh the evidence, which we cannot

       do. See Drane, 867 N.E.2d at 146. Accordingly, we affirm Tharbs’ Level 3

       felony resisting law enforcement conviction.


[17]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019   Page 8 of 8
