                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                  Mar 07 2012, 8:52 am
court except for the purpose of establishing
the defense of res judicata, collateral
                                                                  CLERK
estoppel, or the law of the case.                               of the supreme court,
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ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

STANLEY L. CAMPBELL                             GREGORY F. ZOELLER
Fort Wayne, Indiana                             Attorney General of Indiana

                                                AARON J. SPOLARICH
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

MARQUIS T. HAWKINS,                             )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 02A03-1108-CR-441
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                     APPEAL FROM THE ALLEN SUPERIOR COURT
                        The Honorable John F. Surbeck, Jr., Judge
                            Cause No. 02D04-1007-FC-166



                                      March 7, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
       Appellant-Defendant Marquis Hawkins challenges his conviction for Class A

misdemeanor Resisting Law Enforcement1 by claiming there was insufficient evidence to

demonstrate that he knowingly fled from authorities. We affirm.

                           FACTS AND PROCEDURAL HISTORY

       During the early morning hours of May 27, 2010, Fort Wayne Police Officer Juan

Carlos Gutierrez observed a vehicle fail to signal upon making a turn in Fort Wayne.

Hawkins, who had two passengers, was driving the vehicle. Officer Gutierrez observed

the vehicle make another turn, hitting the curb as it did. Officer Gutierrez, who was in

full police uniform, activated the red and blue lights on his fully marked squad car.

Hawkins accelerated his vehicle in response and drove through a stop sign without

stopping. Officer Gutierrez then activated his siren and called for backup. Hawkins

increased his speed dramatically. Officer Gutierrez pursued Hawkins at speeds of up to

fifty to sixty miles per hour and estimated that Hawkins was driving eighty to ninety

miles per hour in a residential neighborhood. Hawkins continued to accelerate, so, due to

safety concerns, Officer Gutierrez discontinued his pursuit.

       Officer Gutierrez de-activated his lights and siren but continued in the direction of

Hawkins’s vehicle. Officer Gutierrez heard the sound of a crash, and upon arriving at the

scene, saw Hawkins’s vehicle had crashed into a house. Hawkins stepped out of the

vehicle and ran away from the scene. Officer Gutierrez yelled “Stop!” and chased

Hawkins between houses and through an alleyway. Officer Gutierrez ultimately found

Hawkins hiding in some nearby bushes. Officer Gutierrez sought to apprehend Hawkins,
       1
           Ind. Code § 35-44-3-3 (2009).


                                             2
but Hawkins assumed a fighting stance. At that point Officer Gutierrez removed his taser

and warned Hawkins to lie down and comply with his orders. Hawkins did not do so, so

Officer Gutierrez deployed his taser. Officer Gutierrez used his taser for approximately

five seconds, after which Hawkins stood back up and removed one of the taser probes.

Officer Gutierrez struck Hawkins in the solar plexus, sprayed him with chemical spray,

and continued to struggle to subdue him until backup arrived. At that point authorities

were able to handcuff Hawkins.

        On July 27, 2010, the State charged Hawkins with fourteen separate counts,2

including Count VIII, Class A misdemeanor resisting law enforcement, based upon his

fleeing from Officer Gutierrez; Count IX, Class A misdemeanor resisting law

enforcement, based upon his resisting/obstructing/interfering with Officer Gutierrez’s

execution of his law enforcement duties; and Counts XII-XIV, Class B misdemeanor

failure to stop after damage to property other than vehicle. The matter was tried to a jury,

which found Hawkins guilty of Counts VIII, IX, and XII-XIV. The jury deadlocked on

Counts I-VII, X, and XI. The trial court entered judgment of conviction on Counts VIII,

IX, and XII-XIV and declared a mistrial on the remaining counts. Prior to retrial on these

counts, the State filed additional charges, including Count XV, which alleged Class D




        2
          Counts I and II alleged Class C felony criminal recklessness; Count III and IV, Class D felony
operating a vehicle while intoxicated causing serious bodily injury; Counts V and VI, Class D felony
operating a vehicle with a BAC of .08 or higher causing serious bodily injury; Counts VII, Class C felony
resisting law enforcement causing bodily injury to another person; Counts VIII and IX, Class A
misdemeanor resisting law enforcement; Counts X and XI, Class D felony failure to stop after an accident
resulting in injury or death; Counts XII-XIV, Class B misdemeanor failure to stop after damage to
property other than vehicle.


                                                   3
felony resisting law enforcement by fleeing through the use of a vehicle.3 On August 2,

2011, Hawkins pled guilty to several of these additional counts, specifically Counts XV,

XVI, and XVIII, and the trial court entered judgment dismissing Counts I-VII, X, and XI,

and later, Count XVII.

        The trial court sentenced Hawkins to an aggregate four-year sentence.

Specifically Hawkins received terms of one year for each of Counts VIII and IX; sixty

days for each of Counts XII-XIV; three years for Count XV; and one year each for

Counts XVI and XVIII. The court ordered that the sentences for Counts VIII, IX, XII,

XIII, and XIV run concurrently with one another and that the sentence for Count XV run

consecutive to the sentences for the other counts.4 This appeal follows.

                                DISCUSSION AND DECISION

        Upon appeal, Hawkins challenges the sufficiency of the evidence to support his

resisting law enforcement conviction in Count VIII. Hawkins claims that the State failed

to show that he knew he was fleeing from police officers when he stepped outside of his

crashed vehicle and left the scene.

        When evaluating the sufficiency of the evidence to support Hawkins’s conviction,

we do not reweigh the evidence or judge the credibility of the witnesses. Kien v. State,


        3
        The additional charges were Count XVI, Class A misdemeanor criminal recklessness; Count
XVII, Class A misdemeanor operating a vehicle while intoxicated; and Count XVIII, Class A
misdemeanor failure to stop after an accident resulting in injury or death.
        4
          Although the trial court indicates in its order that the sentence for Count XV is to run
concurrently with the sentences for Counts VIII, IX, XII, XIII, and XIV, XVI, and XVIII, it also says that
the sentence for Count XV is to run consecutive to the sentences for Counts XVI and XVIII and that the
aggregate sentence is four years. We assume that the sentence for Count XV, therefore, is to run
consecutive to the sentences for Counts VIII, IX, XII, XIII, and XIV, XVI, and XVIII.


                                                    4
782 N.E.2d 398, 407 (Ind. Ct. App. 2003), trans. denied. We consider only the evidence

which supports the conviction and any reasonable inferences which the trier of fact may

have drawn from the evidence. Id. We will affirm the conviction if there is substantial

evidence of probative value from which a reasonable trier of fact could have drawn the

conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt.

Id. It is the function of the trier of fact to resolve conflicts of testimony and to determine

the weight of the evidence and the credibility of the witnesses. Jones v. State, 701

N.E.2d 863, 867 (Ind. Ct. App. 1998).

       Indiana Code section 35-44-3-3(a)(3) provides that a person who 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 and ordered the person to stop, commits Class A misdemeanor

resisting law enforcement.

       Hawkins claims that Officer Gutierrez failed to identify himself as a police officer

when pursuing him on foot. According to Hawkins, he therefore could have had no way

of knowing that his flight was from police officers rather than, for example, some other

bystander on the scene. We cannot accept this argument under the circumstances of this

case. In the moments before Hawkins fled on foot, he was fleeing a fully marked police

car—with its lights flashing and sirens wailing—at high speeds. There cannot have been

a significant lapse in time between Hawkins’s efforts to escape by car and on foot

because Officer Gutierrez was close enough to the crash to hear it occur. The mere fact

of Officer Gutierrez’s hot pursuit and the lawless nature of Hawkins’s getaway attempts

                                              5
supports the reasonable inference that Hawkins knew the police would still be—and

were—pursuing him after he crashed his car and ran away on foot a short time later. It

would be a strange supposition indeed for a defendant to think that the moment he

escapes the view of law enforcement authorities is the moment that they stop pursuing

him. Further, the fact that Officer Gutierrez found Hawkins hiding beneath a bush also

supports the fact that he knew authorities were still pursuing him. Based upon these facts

and all reasonable inferences therefrom, we must conclude that Hawkins would have

been fully aware that the persons chasing him after the accident were the very same

persons—namely law enforcement authorities—chasing him before the accident.

      The judgment of the trial court is affirmed.

KIRSCH, J., and BARNES, J., concur.

.




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