 ATTORNEY FOR APPELLANT                                ATTORNEYS FOR APPELLEE
                                                                                          FILED
                                                                                     May 11 2017, 11:35 am
 Jeffrey E. Kimmell                                    Curtis T. Hill, Jr.                CLERK
 South Bend, Indiana                                   Attorney General of Indiana    Indiana Supreme Court
                                                                                         Court of Appeals
                                                                                           and Tax Court
                                                       Ellen H. Meilaender
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana




                                             In the
                         Indiana Supreme Court
                                    No. 71S03-1612-CR-00641

ROYCE LOVE,
                                                                  Appellant (Defendant below),

                                                  v.

THE STATE OF INDIANA,
                                                                  Appellee (Plaintiff below).


             Appeal from the St. Joseph Superior Court, No. 71D03-1308-FD-000653
                              The Honorable Jerome Frese, Judge


     On Petition to Transfer from the Indiana Court of Appeals, No. 71A03-1511-CR-02009

                                           May 11, 2017

David, Justice.

        This is a sufficiency case that turns, in part, on video evidence. At issue is the appropriate
standard of review for this video evidence; more specifically, when does reviewing video evidence
become impermissible reweighing? This Court has previously addressed video evidence in
Robinson v. State, where we observed that: “[w]hile technology marches on, the appellate standard
of review remains constant.” 5 N.E.3d 362, 365 (Ind. 2014). Today, however, we write to
supplement our standard of review for video evidence to add a narrow failsafe. We hold that
Indiana appellate courts reviewing the sufficiency of evidence must apply the same deferential
standard of review to video evidence as to other evidence, unless the video evidence indisputably
contradicts the trial court’s findings. A video indisputably contradicts the trial court’s findings
when no reasonable person can view the video and come to a different conclusion.


        The case before us does not present such a set of circumstances. That is, the video at issue
does not indisputably contradict the trial court’s findings. As such, we affirm the trial court.



                                  Facts and Procedural History


       In August 2013, the South Bend police observed a white van driven by Defendant, Royce
Love, drive through a red light. Police began following Love and saw him disregard a stop sign.
They then initiated a traffic stop, but Love did not stop. Instead, he drove on, and other officers
joined the chase. Police attempted to use their cars to create a roadblock, but Love hit one of the
police cars and kept going. Eventually, Love was stopped in an alley with the use of a spike or
stop sticks which were used by police to deflate Love’s tires.


       Love exited his vehicle. He was ordered to the ground. He then raised his hands and got
down on all fours. He eventually lay face down on the ground. Officers used tasers and a police
dog to effect Love’s arrest.


       Love was charged with three counts: 1) resisting law enforcement (based on his fleeing in
his vehicle) as a class D felony1; 2) battery to a law enforcement animal as a class A misdemeanor;
and 3) resisting law enforcement (based on forcibly resisting after the vehicle was stopped) as a
class A misdemeanor. 2




1
 On appeal, Love does not challenge this count.
2
 The State also charged Love with Count IV, operating a vehicle while intoxicated as a class A
misdemeanor, but this charge was dismissed prior to trial.


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       During a jury trial, several police officers testified that Love did not comply with the
officers’ commands after he exited his vehicle. Police testified that because Love was
uncooperative, police deployed a taser, twice, but that Love pulled the taser probes out,
necessitating deployment of a police dog. Police testified that the dog bit Love’s right forearm.
Love then struck and squeezed the police dog, causing the dog to yelp. Police also observed a bite
ring on the dog’s head after they struck Love a number of times to secure the dog’s release.


       The State also introduced a DVD recording of the police pursuit of Love’s van, as taken
from one of the officer’s cars. This video was admitted without objection and played for the jury.


       Love’s version of the events is very different. He testified that an officer approached his
vehicle and told him to “get the F out of the car” and that he got out of his vehicle, put his hands
up and laid face down on the ground. (Appellant’s Appendix at 234.) He further testified that he
put his hands up to be cuffed, but the officers tased him, kicked him and deployed the dog who bit
him. He maintains that he only tried to protect himself from the dog, that he basically hugged the
dog and that he wasn’t trying to hurt it.


       Love also introduced a DVD recording from an officer’s in-car camera. It showed the scene
in the alley where Love was eventually stopped and arrested by police. It was admitted without
objection and played for the jury.


       The jury found Love guilty as charged. He was ultimately sentenced to consecutive one-
year sentences with all of the time suspended to supervised probation. He appealed.


       In a split 2-1 published opinion, the Court of Appeals reversed Love’s convictions. Love
v. State, 61 N.E.3d 290, 292 (Ind. Ct. App.), transfer granted, opinion vacated, 64 N.E.3d 1207
(Ind. 2016). Relying on a Texas appellate court opinion it found instructive, Carmouche v. State,
10 S.W.3d 323 (Tex. Crim. App. 2000), the majority found that when faced with video evidence
to review, an appellate court may not reweigh the evidence and must instead “give almost total
deference to the trial court’s factual determinations unless the video recording indisputably
contradicts the trial court’s findings.” Love, 64 N.E.3d at 298 (citing State v. Houghton, 384



                                                3
S.W.3d 441, 446 (Tex. App. 2012) (emphasis added)). Here, the majority found that the video
unambiguously showed Love cooperated with police almost immediately.


       Judge Pyle dissented. He would have affirmed the trial court. He believes that his
colleagues impermissibly reweighed the evidence. He interpreted the video differently and argued
that Love walked to the rear of the vehicle before complying and that he did not remain still. He
also stated that the camera does not show everything and thus, the testimony of the witnesses is
the only evidence of what happened during the ensuing altercation between Love and police.


       The State filed a petition to transfer, which we granted, thereby vacating the Court of Appeals
decision. Ind. Appellate Rule 58(A).

                                       Standard of Review

       For a sufficiency of the evidence claim, we look only at the probative evidence and
reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).
We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the
conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id.
                                            Discussion


       This is a sufficiency case. We must decide whether the evidence the State presented at
trial is sufficient to sustain Love’s convictions for battery of a law enforcement animal and
resisting law enforcement. As for battery of a law enforcement animal, at the time of the offense,
Ind. Code § 35–46–3–11(a) provided that “[a] person who knowingly or intentionally. . . strikes,
torments, injures, or otherwise mistreats a law enforcement animal . . . commits a class A
misdemeanor.” (Subsequently amended by Pub. L. No. 158–2013, § 563 (eff. July 1, 2014); and
Pub L. No. 168–2014, § 86 (eff. July 1, 2014)). As for resisting law enforcement, at the time of
the offense, Ind. Code § 35–44.1–3–1(a)(1) provided that a defendant commits resisting law
enforcement as a Class A misdemeanor when he “knowingly or intentionally. . .forcibly resists,
obstructs, or interferes with a law enforcement officer or a person assisting the officer while the
officer is lawfully engaged in the execution of the officer's duties [.]” (Subsequently amended by


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Pub. L. No. 158–2013, § 509 (eff. July 1, 2014); Pub. L. No. 168–2014, § 80 (eff. July 1, 2014);
and Pub. L. No. 198–2016, § 673 (eff. July 1, 2016)).


       An officer is not lawfully engaged in the execution of his duties when he uses
unconstitutionally excessive force. Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App. 2000).
Claims that law enforcement officers have used excessive force in the course of an arrest of a free
citizen are analyzed under the Fourth Amendment to the United States Constitution and its
“reasonableness” standard. Graham v. Connor, 490 U.S. 386, 395 (1989). The “reasonableness”
inquiry in an excessive force case is an objective one; the question is whether the officers' actions
are “objectively reasonable” in light of the facts and circumstances confronting them, without
regard to their underlying intent or motivation. Id. at 396.


       The State offered evidence by way of testimony from the police officers that Love
knowingly struck or mistreated a police animal and that he knowingly and forcibly resisted a police
officer while that officer was engaged in his duties as a law enforcement officer. Specifically,
five officers testified during trial. They testified that when Love exited his van, he ignored police
orders to stop walking away and lie on the ground. They further testified that because of Love’s
failure to cooperate, they tased him twice. Finally, they testified that after Love pulled the taser
probes out, they deployed the police dog that bit Love’s forearm and that Love responded by
striking the dog, squeezing it, biting its head and causing it to yelp.


       For his part, Love testified that he cooperated with police. He testified that police ordered
him to get out of the car and he did so, putting his hands up and lying face down on the ground.
He argues that the police used excessive force and that he was only trying to protect himself from
the dog. Thus, he argues his actions were lawful efforts to protect himself from serious injury and
therefore, cannot form the basis for his convictions.


       Resolution of this issue turns, in part, on interpretation of the video evidence in this case
because Love argues that, contrary to police testimony, the video shows he cooperated with police.
This Court recently addressed video evidence and the standard of review in Robinson v. State, 5
N.E.3d 362 (Ind. 2014). In Robinson, the parties also disputed the significance of the video


                                                  5
evidence, and we observed that: “[w]hile technology marches on, the appellate standard of review
remains constant.” Robinson, 5 N.E.3d at 365. We added:

              [w]e do not believe, however, as some of our colleagues in other
              jurisdictions do, that the very act of reviewing video evidence
              constitutes impermissible appellate reweighing. State v. Rascon,
              No. 30,561, 2011 WL 704472 at *2 (N.M. Ct. App. Jan. 14, 2011)
              cert. denied, 2011–NMCERT–003, 150 N.M. 619, 264 P.3d 520
              (2011) (table) (declining even to review a video of a traffic stop in a
              reasonable suspicion case on the ground that doing so would amount
              to reweighing the evidence). Rather, we consider video evidence
              admitted in the trial court to be a necessary part of the record on
              appeal, just like any other type of evidence.

                                              ***

              And just like any other type of evidence, video is subject to
              conflicting interpretations. In Scott v. Harris, 550 U.S. 372, 127 S.
              Ct. 1769, 167 L.Ed.2d 686 (2007), Justice Scalia, writing for the
              majority of the Court, described a videotape as showing “a
              Hollywood-style car chase of the most frightening sort, placing
              police officers and innocent bystanders alike at great risk of serious
              injury.” Id. at 380, 127 S. Ct. 1769. Based largely on his impression
              of that video, he concluded police were justified in using deadly
              force to end the pursuit. Id. at 386, 127 S. Ct. 1769. Justice Stevens,
              dissenting, described the very same video as “hardly the stuff of
              Hollywood” and opined it did not show “any incidents that could
              even be remotely characterized as ‘close calls.’” Id. at 392, 127 S.
              Ct. 1769 (Stevens, J., dissenting).

Robinson 5 N.E.3d at 366.     Scott highlights the split among courts regarding the standard of
review that should apply to video evidence on appeal, with some courts, like ours, applying a
deferential standard of review and some applying a de novo standard. For instance, the Supreme
Judicial Court of Massachusetts adopted a de novo standard for video evidence:


              we accept the judge's subsidiary findings of fact unless not
              warranted by the evidence and the judge's ultimate findings, while
              open for review, are afforded substantial deference. . . [H]owever,
              [when] the judge's findings are based almost exclusively on the
              videotape of [defendant’s] confession, and we are in the same
              position as the [trial] judge in viewing the videotape.

Com. v. Novo, 812 N.E.2d 1169, 1173 (Mass. 2004) (internal quotations and citations omitted).


                                                6
       This Court has declined to adopt a de novo standard for video evidence. Instead, we give
the trial court’s decision great deference. However, this does not mean we do not review or
consider video evidence. In Robinson, we noted that our appellate courts are permitted to review
the video evidence, just like any other evidence. Robinson 5 N.E.3d at 366. The question Robinson
did not squarely address is when does review of video evidence become impermissible reweighing.
For there may be times when reasonable minds could disagree about interpretation of the video
evidence or times when the video is unclear or does not capture the entire event. However, there
may be other times when objective video evidence is complete and indisputably contradicts the
other evidence in the case. For example, there could be a situation where the issue is whether a
defendant consented to a search. The police testify that defendant consented to the search;
however, on the video of the events, defendant indisputably says “no” when police ask if they may
search his vehicle. In such an instance, it would not be appropriate to ignore the video evidence
and only look to the evidence supporting the verdict citing the deferential standard of review.

       As the Supreme Court of Florida recently and aptly stated:

               We respect the authority and expertise of law enforcement officers,
               and thus rely on an officer's memory when necessary. But we would
               be remiss if we failed to acknowledge that at times, an officer's
               human recollection and report may be contrary to that which
               actually happened as evinced in the real time video. This is the
               reality of human imperfection; we cannot expect officers to retain
               information as if he or she were a computer. Therefore, a judge who
               has the benefit of reviewing objective and neutral video evidence
               along with officer testimony cannot be expected to ignore that video
               evidence simply because it totally contradicts the officer's
               recollection. Such a standard would produce an absurd result.

Wiggins v. Florida Dep't of Highway Safety & Motor Vehicles, 209 So. 3d 1165, 1172 (Fla. 2017).


       We agree. Accordingly, we think it is appropriate that there be a narrow failsafe built into
our standard of review for video evidence. To that end, we agree with our Court of Appeals that
the opinion by the Court of Criminal Appeals of Texas, Carmouche v. State, 10 S.W.3d 323 (Tex.
Crim. App. 2000), is instructive. Carmouche involved whether defendant consented to a search.
Finding the police testimony that Carmouche gave his consent was contradicted by video evidence,
the court noted that “as a general rule, the appellate courts, including this Court, should give almost



                                                  7
total deference to a trial court's determination of the historical facts that the record supports
especially when the trial court's findings are based on an evaluation of credibility and demeanor.”
Id. at 332. But it added: “[i]n the unique circumstances of this case, however, we decline to give
‘almost total deference’ to the trial court's implicit findings,” noting that “the nature of the evidence
presented in the videotape does not pivot ‘on an evaluation of credibility and demeanor’” and that,
“[r]ather, the videotape presents indisputable visual evidence contradicting essential portions of
[the officer’s] testimony.” Id. It ruled that “[i]n these narrow circumstances, we cannot blind
ourselves to the videotape evidence simply because [police] testimony may, by itself, be read to
support the Court of Appeals' holding.” Id. Accordingly, it vacated a judgment of the Court of
Appeals of Texas that Carmouche consented to the search. Id. at 333.


        This rule has since been stated as courts “give almost total deference to the trial court's
factual determinations unless the video recording indisputably contradicts the trial court's
findings.” State v. Houghton, 384 S.W.3d 441, 446 (Tex. App. 2012). We find this to be a
workable approach that allows for appropriate deference to the trial court unless and until there is
a reason such deference is not appropriate. We recognize these situations may be rare. But in those
instances, where the video evidence indisputably contradicts the trial court’s findings, relying on
such evidence and reversing the trial court’s findings do not constitute reweighing. To be clear,
in order that the video evidence indisputably contradict the trial court’s findings, it must be such
that no reasonable person could view the video and conclude otherwise. When determining
whether the video evidence is undisputable, a court should assess the video quality including
whether the video is grainy or otherwise obscured, the lighting, the angle, the audio and whether
the video is a complete depiction of the events at issue, among other things. In cases where the
video evidence is somehow not clear or complete or is subject to different interpretations, we defer
to the trial court’s interpretation.


        Turning to the facts of the present case, Love claims that, here, the video evidence
(Defendant’s Exhibit A) indisputably contradicts the testimony of five police officers and shows
him cooperating with police immediately. However, the video at issue is dark and it is hard to see
much. At some point, we do see Love get down on the ground, but we do not see what happens
before he does, nor do we see much of what happens afterwards. It is the moments leading up to



                                                   8
Love’s getting on the ground and what ensued afterwards with tasers and the police dog that are
critical to determining what happened in this case. While Love claims the video indisputably
shows he cooperated immediately, this is simply not the case. The video does not capture his exit
from his vehicle. It also does not show what happens with the taser or police dog. We only have
Love’s testimony and the officers’ testimony in that regard. This is not a case where the video
indisputably contradicts the testimony of police nor where no reasonable person could look at the
video and think anything other than Love cooperated immediately.            Instead, we have the
conflicting testimony of Love and the officers and a video that does not serve to irrefutably
contradict police testimony. As such, we defer to the trial court’s factual determinations regarding
weight of the evidence and credibility of the witnesses.


                                            Conclusion

       We hold that for video evidence, the same deference is given to the trial court as with other
evidence, unless the video evidence at issue indisputably contradicts the trial court’s findings. A
video indisputably contradicts the trial court’s findings when no reasonable person can view the
video and come to a different conclusion.

       Because the video evidence at issue does not indisputably show Love’s compliance with
police, and there is other evidence that sufficiently established the elements of the crimes, we
affirm Love’s convictions for battery of a law enforcement animal and resisting law enforcement
as class A misdemeanors.


Rush, C.J., Rucker, Massa and Slaughter, J.J., concur.




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