                                                                                   FILED
                                                                            Oct 26 2017, 8:54 am

                                                                                   CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Ruth Ann Johnson                                           Curtis T. Hill, Jr.
      Victoria L. Bailey                                         Attorney General of Indiana
      Marion County Public Defender
      Appellate Division                                         Angela N. Sanchez
      Indianapolis, Indiana                                      Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
             COURT OF APPEALS OF INDIANA

      Matthew Edmonds,                                           October 26, 2017
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 49A05-1703-CR-400
                 v.                                              Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Grant W.
      Appellee-Plaintiff                                         Hawkins, Judge
                                                                 Trial Court Cause No.
                                                                 49G05-1506-F3-20232



      May, Judge.


[1]   Matthew Edmonds appeals his convictions of one count of Level 3 felony

      resisting law enforcement resulting in the death of another person 1 and two



      1
          Ind. Code § 35-44.1-3-1 (2014).


      Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017                     Page 1 of 12
      counts of Level 5 felony resisting law enforcement resulting in serious bodily

      injury to another person. 2 He asserts the State did not present sufficient

      evidence he was still resisting law enforcement when he caused death and

      serious bodily injury. 3 We affirm in part, reverse in part, and remand.



                                Facts and Procedural History
[2]   On the morning of June 8, 2015, Edmonds was observed shoplifting in the

      Beech Grove Wal-Mart. The Asset Protection Manager notified the police of

      the theft after Edmonds left the store. In response to a police dispatch, Beech

      Grove Police Officer Josh Hartman went to the Wal-Mart parking lot and

      identified the vehicle Edmonds had entered. Beech Grove Police Officer Darrin

      McGuire also responded to the dispatch, but he waited outside the Wal-Mart

      parking lot. After Officer Hartman pulled in behind Edmonds’ vehicle, but

      before Officer Hartman could activate his lights and siren, Edmonds drove

      away “at a high rate of speed.” (Tr. Vol. II at 124.)


[3]   Both officers pursued Edmonds with their police lights and sirens activated.

      Edmonds was traveling at “seventy-five, 80,” (id. at 127), miles per hour in a

      forty mile-per-hour zone, running red lights, and driving on the wrong side of

      the streets. As they approached a hill with a blind spot, the officers turned off




      2
          Ind. Code § 35-44.1-3-1 (2014).
      3
        Edmonds filed a motion for leave to file an amended brief. However, as we sua sponte address the concerns
      raised in that motion, we deny his motion by separate order.

      Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017                      Page 2 of 12
      their lights and sirens but continued to watch “in case [Edmonds] hit somebody

      else . . . to provide safety until the medics get there[.]” (Id. at 129.)


[4]   On the other side of the hill, Indianapolis Metropolitan Police Department

      (“IMPD”) Lieutenant Donald Bender, who had been monitoring the

      communications regarding the chase, saw Edmonds and, activating his lights,

      started to follow him. Officers Hartman and McGuire followed suit once they

      cleared the hill. Shortly after, however, they encountered a school bus and

      again terminated the chase as too dangerous to the public.


[5]   The officers momentarily lost track of Edmonds but continued to search for

      him. Edmonds “came out of the alleyway and almost t-boned [IMPD Officer

      William Bueckers].” (Id. at 192.) Edmonds accelerated away from Officer

      Bueckers. Without speeding or activating his lights and siren, Officer Bueckers

      followed Edmonds. Officer Bueckers estimated Edmonds was going “80, 90

      miles an hour at least.” (Id. at 196.)


[6]   Other officers had lined up on Edmonds’ projected trajectory to attempt to keep

      the streets clear and avoid the possibility he might harm others. However,

      Edmonds ran a red light and hit a truck in the intersection. Edmonds exited his

      vehicle and ran away on foot. IMPD Sergeant David Gard witnessed Edmonds

      hit the truck and leave his vehicle. Sergeant Gard intercepted Edmonds as he

      “jumped over the fence and fell right in front of [Sergeant Gard’s] car.” (Tr.

      Vol. III at 17.) Sergeant Gard ordered Edmonds “to get on the ground.” (Id.)

      Eventually, Edmonds complied and was taken into custody.


      Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017   Page 3 of 12
[7]   Donna Niblock, the driver of the truck, was killed when Edmonds hit her truck.

      Her daughter, Ladonna, and grandson, Johnathan, were seriously injured. The

      State charged Edmonds with nine other charges, in addition to the three

      resisting law enforcement charges, including: Level 5 felony reckless homicide, 4

      Level 5 felony driving while suspended resulting in the death of another, 5 two

      counts of Level 6 felony driving while suspended resulting in bodily injury, 6

      Level 5 felony failure to remain at the scene of an accident with death, 7 two

      counts of Level 6 felony failure to remain at the scene of the accident with

      injury, 8 Class A misdemeanor theft, 9 and Class B misdemeanor failure to

      remain at the scene of an accident. 10 The jury found him guilty of all charges.


[8]   After the jury returned, Edmonds filed a motion for judgment on the evidence

      on the three charges of driving while suspended because the State did not

      present sufficient evidence to support the jury verdict. The trial court dismissed

      those charges. The trial court merged the charge of Level 3 felony resisting law

      enforcement causing the death of another person with the charge of Level 5

      felony reckless homicide. Edmonds was sentenced to an aggregate term of




      4
          Ind. Code § 35-42-1-5 (2014).
      5
          Ind. Code § 9-24-19-3 (2015).
      6
          Id.
      7
          Ind. Code § 9-26-1-1.1(a)(2) (2015).
      8
          Id.
      9
          Ind. Code § 35-43-4-2 (2014).
      10
           Ind. Code § 9-26-1-1.1(a)(1)(B) (2015).


      Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017   Page 4 of 12
      twenty-five years on the remaining eight charges: fifteen years for the Level 3

      felony resisting law enforcement causing the death of another person; five years

      each for two Level 5 felony resisting law enforcement resulting in serious bodily

      injury, to be served consecutive to the Level 3 felony sentence; 180 days for the

      Class B misdemeanor failure to remain at the scene of an accident, to be served

      concurrent with the Level 3 felony sentence; and one year each for all

      remaining counts, to be served concurrent with the Level 3 felony sentence.



                                     Discussion and Decision
                                                   Double Jeopardy

[9]   First, we sua sponte address the double jeopardy violation that occurred when

      the trial court convicted Edmonds of three counts of resisting law enforcement,

      one resulting in death and two resulting in serious bodily injury. 11 See Ind.

      Const. art. 1, § 14 (“No person shall be put in jeopardy twice for the same

      offense.”). We review de novo whether a defendant’s convictions subjected him

      to double jeopardy. Goldsberry v. State, 821 N.E.2d 447, 458 (Ind. Ct. App.

      2005). “A defendant’s right to not be put twice in jeopardy for the same offense

      arises from the United States Constitution and the Indiana Constitution.” Davis

      v. State, 691 N.E.2d 1285, 1287-88 (Ind. Ct. App. 1998). Prohibitions against

      double jeopardy protect against multiple punishments for the same offense in a




      11
           This is the sole issue Edmonds sought to raise in his amended brief.


      Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017   Page 5 of 12
       single trial. Richardson v. State, 717 N.E.2d 32, 37 n.3 (Ind. 1999), holding

       modified by Garrett v. State, 992 N.E.2d 710 (Ind. 2013).


[10]   In Wharton v. State, 42 N.E.3d 539 (Ind. Ct. App. 2015), Wharton was stopped

       by the police. Based on that traffic stop, Wharton was charged with one count

       of operating a vehicle while intoxicated and one count of operating a vehicle

       with an ACE of .08 or more. Under the actual evidence test, we held “both

       offenses arose from the same action, on the same day, at the same place.” Id. at

       541. Indiana Code section 9-30-5-2(a) makes it a Class C misdemeanor to

       “operate[] a vehicle while intoxicated,” but it “is a Class A misdemeanor if the

       person operates a vehicle in a manner that endangers a person.” Ind. Code § 9-

       30-5-2(b) (2001). Similarly, Indiana Code section 35-44.1-3-1 sets out the crime

       of resisting law enforcement, and then also enumerates different consequences

       for which the crime’s classification may be enhanced, such as causing death or

       injury.


[11]   Like in Wharton, Edmonds committed one act that was enhanced by the

       consequences of that action. His three resisting law enforcement offenses,

       under the actual evidence test, stemmed “from the same action, on the same

       day, at the same place,” Wharton, 42 N.E.3d at 541, because for the purposes of

       the charged incidents, Edmonds ran one light and crashed into one vehicle. See

       Armstead v. State, 549 N.E.2d 400, 402 (Ind. Ct. App. 1990) (distinction made

       between separate offenses and one offense of resisting law enforcement -“unless

       more than one incident occurs, there may be only one charge”).



       Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017   Page 6 of 12
[12]   In Wood v. State, 999 N.E.2d 1054, 1065 (Ind. Ct. App. 2013), trans. denied, cert.

       denied, Wood left the scene after a boating accident that resulted in two deaths

       and one person having serious bodily injury, as defined by Indiana Code

       section 14-15-4-1 (1995). Wood was convicted of all three counts. On appeal,

       Wood argued his convictions subjected him to double jeopardy because they all

       stemmed from one accident and therefore violated the prohibition against

       multiple punishments for the same offense. Because Indiana Code section 14-

       15-4-1 imposes enumerated duties when a person is involved in an accident and

       the statute is “framed in terms of ‘an accident’ rather than injury to a person,”

       id. at 1065, we held the statute was adopted for the purpose of punishment of

       leaving the accident, rather than injury inflicted. Thus, no matter how many

       people were injured in a single accident, only one conviction of leaving the

       scene of the accident could be entered. 12 Wood, 999 N.E.2d at 1065.


[13]   Although Edmonds killed one person and seriously injured two others, all three

       counts of resisting law enforcement were charged based on one incident of

       resisting law enforcement. Likewise, all four counts of leaving the scene of an

       accident are based on one incident of doing so. As charged, Edmonds may

       only be punished for one act of resisting law enforcement and one act of leaving

       the scene of an accident. Conviction on all three counts of resisting law




       12
          We note this also applies to Edmonds’ four charges of failure to remain at the scene of an accident. Thus,
       while his conviction for Level 5 failure to remain at the scene of an accident resulting in the death of another
       person may stand, the two charges of Level 6 felony failure to remain at accident resulting in serious bodily
       injury of another person and the Class B misdemeanor failure to remain at the scene of an accident must be
       vacated.

       Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017                          Page 7 of 12
       enforcement and all four counts of leaving the scene of an accident constitute a

       violation of Edmonds’ protection from double jeopardy and the additional

       convictions must be vacated. Therefore, we vacate Edmond’s two convictions

       of Level 5 felony resisting law enforcement and three lesser convictions of

       failing to remain at the scene of an accident. See Owens v. State, 742 N.E.2d 538,

       545 (Ind. Ct. App. 2001) (when double jeopardy implications exist, reviewing

       court is to decide the charges to vacate, keeping in mind “the penal

       consequences that the trial court found appropriate”), trans. denied. We remand

       for the trial court to resentence Edmonds for the remaining crimes. See Guffey v.

       State, 42 N.E.3d 152, 163 (Ind. Ct. App. 2015) (Trial court has “flexibility upon

       remand, including the ability to increase sentences for individual convictions

       without giving rise to a presumption of vindictive sentencing, so long as the

       aggregate sentence is no longer than originally imposed.”), trans. denied.


                                            Sufficiency of Evidence

[14]   When reviewing sufficiency of the evidence in support of a conviction, we will

       consider only probative evidence in the light most favorable to the trial court’s

       judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 1995), reh’g denied. The

       decision comes before us with a presumption of legitimacy, and we will not

       substitute our judgment for that of the fact-finder. Id. 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). Reversal

       is appropriate only when no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt. Id. Thus, the evidence is not

       Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017   Page 8 of 12
       required to overcome every reasonable hypothesis of innocence and is sufficient

       if an inference reasonably may be drawn from it to support the verdict. Id. at

       147.


[15]   Edmonds contends that, because the officers turned their lights and sirens off

       before he crashed into the truck and killed Niblock, he was no longer resisting

       law enforcement. 13 He argues the State did not provide sufficient evidence to

       prove he was.


[16]   To prove Level 3 felony resisting law enforcement the State must prove

       Edmonds “knowingly or intentionally fle[d] from a law enforcement officer

       after the officer ha[d] . . . identified himself or herself and ordered [Edmonds] to

       stop.” I.C. § 35-44.1-3-1(a)(3) (2014). It is enhanced to a Level 3 felony if “the

       person operates a vehicle in a manner that causes the death of another person.”

       I.C. § 35-44.1-3-1(b)(3) (2014). To sustain a conviction for resisting law

       enforcement, the State must prove the person accused of resisting knew he was

       dealing with an officer. Conley v. State, 57 N.E.3d 836, 838 (Ind. Ct. App.

       2016), trans. denied. “[D]riving a marked police car is sufficient to meet this

       standard.” Id. Additionally, law enforcement must issue an order to stop. This

       order may be accomplished audibly or visually. Spears v. State, 412 N.E.2d 81,

       83 (Ind. Ct. App. 1980).




       13
         As we have decided two of the counts must be vacated, we address only the Level 3 felony resisting law
       enforcement resulting in the death of another person.

       Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017                     Page 9 of 12
[17]   The State presented evidence police began to pursue Edmonds in the Wal-Mart

       parking lot when Officer Hartman pulled up behind Edmonds and Edmonds

       drove away “at a high rate of speed.” (Tr. Vol. II at 124.) Officer Hartman and

       Officer McGuire, amongst others, had lights and sirens activated at different

       times to indicate they wished Edmonds to stop.


[18]   Although the officers may have broken off the high-speed pursuit due to safety

       concerns, Edmonds’ was still aware officers were in pursuit as evidenced by his

       actions after he almost wrecked into Officer Bueckers and accelerated as he

       drove away. In the residential area with a speed limit of thirty miles per hour,

       Edmonds was traveling “two, three times the speed limit . . . 80, 90 miles an

       hour at least.” (Id. at 196.)


[19]   At no time did Edmonds act as though he was not fleeing the police. At no

       time did the police not actively track Edmonds. Lieutenant Bender testified

       that although the officers had terminated the high-speed pursuit and turned

       their lights and sirens off, they “were still on the lookout for the vehicle,” (Tr. at

       154), in the hopes the driver would “[s]low down, stop, abandon the vehicle,”

       (id.), and the police would be able to apprehend him. IMPD Officer Joshua

       Reese testified that following without lights and sirens is an apprehension tactic

       employed by the police. The tactic involves the officers “hoping [the

       perpetrator] would get into the area, feel safe now that the lights and sirens have

       been turned off and bail on foot and run and try and hide in the area.” (Id. at

       248-49.) At that point, officers would attempt to apprehend the perpetrator on

       foot or with the assistance of a K-9 unit.

       Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017   Page 10 of 12
[20]   A reasonable person would have interpreted the officers’ actions, together with

       Edmonds’ continued flight, to indicate Edmonds was aware the officers were

       still following him and wanted him to stop. These actions continued through

       Edmonds’ running the red light, hitting the truck, killing Niblock, fleeing on

       foot, and being apprehended by Sergeant Gard. The State presented sufficient

       evidence to support Edmonds’ conviction of resisting law enforcement resulting

       in the death of another person. See Spears, 412 N.E.2d at 83 (sufficient evidence

       presented to show police presence and valid order to stop when Spears sped

       away from the scene); see also Lewis v. State, 43 N.E.3d 689, 691 (Ind. Ct. App.

       2015) (Lewis committed one continuous crime when first fleeing in his vehicle

       and then on foot).



                                                Conclusion
[21]   As resisting law enforcement is a conduct-based crime rather than a result-based

       crime, Edmonds may only be convicted of only one count of resisting law

       enforcement. This holding also applies to the leaving the scene of an accident

       charges. As the State provided sufficient evidence to support Edmonds’

       conviction of resisting law enforcement resulting in the death of another person,

       we affirm that conviction. Therefore, we affirm Edmond’s conviction of Level

       3 felony resisting law enforcement causing the death of a person and his

       conviction of Level 5 felony leaving the scene of an accident, vacate the two

       lesser charges of resisting law enforcement and the three lesser charges of

       leaving the scene of an accident, and remand to the trial court for resentencing.


       Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017   Page 11 of 12
[22]   Affirmed in part, reversed in part, and remanded.


       Barnes, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 49A05-1703-CR-400 | October 26, 2017   Page 12 of 12
