MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                Jul 25 2019, 8:44 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




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bradley S. Boswell                                        Curtis T. Hill, Jr.
Certified Legal Intern                                    Attorney General of Indiana
Joel M. Schumm
                                                          Tiffany A. McCoy
IU Robert H. McKinney School of Law                       Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lauren Thomas,                                            July 25, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2533
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Ronnie Huerta,
Appellee-Plaintiff                                        Magistrate
                                                          Trial Court Cause No.
                                                          49G24-1702-F6-5669



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019                     Page 1 of 12
[1]   Lauren Thomas appeals her conviction for Level 6 Felony Resisting Law

      Enforcement,1 arguing that (1) the trial court erred when it denied her motion

      for a mistrial; and that (2) the evidence was insufficient to support the

      conviction. Finding no error and the evidence sufficient, we affirm.


                                                         Facts    2




[2]   On February 10, 2017, at around 10:00 p.m., Indianapolis Metropolitan Police

      Department (IMPD) Officer Darrell Miller was dispatched to the intersection of

      38th Street and Fall Creek Parkway to check on a reported abandoned vehicle.

      Officer Miller arrived at the intersection, evaluated the vehicle, and noticed that

      most of the front right tire was missing its rubber. He then moved his fully

      marked police car behind the vehicle and called to have it towed. Officer Miller

      proceeded to conduct an inventory search and discovered Thomas sitting in the

      driver’s seat, which was completely reclined.


[3]   Officer Miller testified that at first glance, Thomas “appeared to be

      unconscious.” Tr. Vol. II p. 34. After knocking on the window and shaking the

      vehicle to no avail, Officer Miller finally opened the door, which promptly

      awakened Thomas. He asked her what she was doing and why she was laying

      in her car by the side of the road. Thomas responded that she was “waiting to




      1
          Ind. Code §§ 35-44.1-3-1(a)(3), -1(b)(1)(A).
      2
        We held oral argument for this case in Indianapolis on June 26, 2019. We thank both parties for their
      stimulating conversation and willingness to answer our questions.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019                    Page 2 of 12
      drive her vehicle home[.]” Id. at 35. She also explained that she had just come

      from a wine and bourbon tasting. During this short conversation, Officer Miller

      noted the smell of alcohol on her breath. Despite Officer Miller’s suggestions

      that Thomas call someone to come and pick her up, Thomas insisted that she

      would be driving her vehicle home. Officer Miller informed her that the vehicle

      was inoperable, that it was blocking traffic, and that it would need to be towed.

      Still, Thomas refused.


[4]   Officer Miller asked Thomas for her driver’s license, which she willingly gave to

      him. Officer Miller then told Thomas to “sit tight” and that he would “be right

      back with her.” Id. at 57. Officer Miller returned to his police car and ran a

      search, discovering that Thomas’s license was suspended with a prior

      conviction.


[5]   While Officer Miller was conducting this search, Thomas began driving

      eastbound on 38th Street at around twenty-five to thirty miles per hour.3 Officer

      Miller then activated his siren, turned on his spotlight, and notified

      communications because “[he] thought [he] was going to be in a vehicle

      pursuit.” Id. at 58. However, Thomas had only driven a little over a block and

      turned south before she voluntarily stopped her vehicle. Officer Miller left his

      police car, approached Thomas, and asked her why she had driven away. She




      3
        Though Officer Miller testified on direct examination that this was the speed at which Thomas was driving
      away, during a prior deposition and on cross-examination, he testified that Thomas was driving at around
      fifteen to twenty miles per hour. Tr. Vol. II p. 59, 70.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019                   Page 3 of 12
      responded that she had told him, “I was driving my vehicle home.” Id. at 60.

      Officer Miller informed Thomas that her license was suspended and ordered

      her out of the vehicle. Thomas became increasingly violent and belligerent

      towards Officer Miller, leading him to call for back-up. But before IMPD

      Officers Emmel and Freeman arrived to assist Officer Miller, he had handcuffed

      her, sat her down on the curb, and arrested her. The two back-up officers agreed

      with Officer Miller that Thomas’s breath smelled of alcohol.


[6]   On February 11, 2017, the State charged Thomas with one count of Level 6

      felony resisting law enforcement and one count of Class A misdemeanor

      driving while suspended. On February 13, 2017, the trial court ordered interim

      pre-trial release periods for Thomas so that she might self-report to community

      corrections to monitor her alcohol consumption. However, the State filed

      notices of violations of her pre-trial release periods on May 8, June 27, and

      August 30, 2017, and May 15 and June 14, 2018, alleging that Thomas had

      failed to appear for scheduled alcohol tests, had submitted multiple positive

      tests for alcohol, and had failed to comply with monetary obligations.


[7]   Before Thomas’s July 24, 2018, jury trial, the trial court granted Thomas’s

      motion in limine excluding any evidence about conclusions reached by Officer

      Miller as to whether Thomas was intoxicated on the night of the incident. The

      trial court shared Thomas’s concerns that any conclusions about intoxication

      might distract, confuse, or prejudice the jury since intoxication was not relevant

      to any of the crimes with which she was charged. However, the order in limine



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019   Page 4 of 12
      did not exclude testimony from Officer Miller about his general observations

      regarding Thomas’s behavior, mood, or actions.


[8]   During Thomas’s trial, Officer Miller testified about what happened that night.

      According to Officer Miller, after Thomas remained adamant about driving her

      vehicle home:


              I told her her vehicle was inoperable because it only had three tires
              so it was gonna have to be towed. It was blocking traffic too, that
              was another reason it had to be towed and I asked her if she
              thought that she had maybe too much to drink to be driving in the
              first place and she stated, yes.


      Id. at 35-36. Thomas immediately objected and moved for a mistrial,

      contending that the State had violated the order in limine because Officer Miller

      concluded that Thomas was intoxicated. After some discussion, the trial court

      overruled Thomas’s objection and denied her motion for a mistrial, holding that

      the order in limine had not been violated because Officer Miller made no such

      conclusion. Rather, Officer Miller was merely opining about Thomas’s physical

      state and relaying to the jury how Thomas answered his questions.


[9]   After a short recess, Thomas requested that the trial court admonish the jury

      about not considering intoxication during deliberations. The trial court agreed

      and admonished the jury in the following way:


              Before we pick back up, I just want to inform you; the Defendant
              is not charged with being intoxicated, she is not charge [sic] with
              operating a vehicle while intoxicated. If you look at the elements
              of the crimes that she is charged with, intoxication has nothing to
              do with that. That’s not an element. So, we just want to make sure

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019   Page 5 of 12
               that’s clear, that this is not a drinking and driving case, it’s not a
               public intoxication case, you already have the list of the crimes
               alleged and the elements that make up those crimes.


       Id. at 52. In response to this admonishment, one juror asked the trial court the

       following question: “My main question on the whole thing is if [alcohol and

       intoxication] keeps coming up, why was she not charge [sic] for that? Was he

       not following procedure?” Id. The trial court responded by saying that the jurors

       “can address that question if they choose to address that question[,]” id. at 53,

       and reassured the jury that the case had nothing to do with intoxication.

       Thomas renewed her motion for a mistrial, which the trial court denied.


[10]   The jury found Thomas guilty as charged. On September 25, 2018, the trial

       court sentenced Thomas to concurrent sentences of 730 days, with credit for 32

       days and 698 days suspended to probation, for the resisting law enforcement

       conviction and 333 days for the driving while suspended conviction. Thomas

       now appeals.


                               Discussion and Decision
[11]   Thomas raises two issues on appeal: (1) the trial court erred when it denied her

       motion for a mistrial after admitting testimony that potentially prejudiced the

       jury, despite the trial court’s admonishment; and (2) the evidence was

       insufficient to support her conviction for Level 6 felony resisting law




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019    Page 6 of 12
       enforcement because there was no indication that she was formally ordered to

       stop nor that she fled from the arresting officer.4


                                                 I. Mistrial
[12]   First, Thomas argues that the trial court erred when it denied her motion for a

       mistrial after admitting testimony that potentially prejudiced the jury, despite

       the trial court’s admonishment.


[13]   A mistrial is an “extreme remedy” that should be used only when no other

       curative measure will rectify the situation. Moore v. State, 652 N.E.2d 53, 57

       (Ind. 1995). Upon review of a denial of a motion for a mistrial, the defendant

       must demonstrate that the conduct complained of was both in error and had a

       probable persuasive effect on the jury’s decision. Pierce v. State, 761 N.E.2d 821,

       825 (Ind. 2002). More specifically:


               [W]hen the trial court admonishes the jury to disregard the
               inadmissible evidence, the prejudicial impact of the evidence may
               be sufficiently mitigated. The question of whether a defendant was
               so prejudiced that the admonishment could not cure the error is
               one that must be determined by examining the facts of the
               particular case. The burden is on the defendant to show that he
               was harmed and placed in grave peril by the denial of the mistrial
               motion.




       4
        Thomas does not argue that the evidence was insufficient to support her conviction for Class A
       misdemeanor driving while suspended.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019                     Page 7 of 12
       Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct. App. 2003) (internal citations

       omitted). The decision to grant or deny a mistrial is within the sound discretion

       of the trial court, and we will reverse only when the trial court’s decision is

       clearly against the logic and effect of the facts and circumstances. Stafford v.

       State, 890 N.E.2d 744, 750 (Ind. Ct. App. 2008).


[14]   Specifically, Thomas contends that the trial court should have declared a

       mistrial because the State violated the order in limine when Officer Miller

       testified about Thomas’s behavior. Furthermore, according to Thomas, the fact

       that one juror appeared confused by the admonishment demonstrates that it

       was not enough to cure jury prejudice.


[15]   The order in limine specified that Officer Miller could not make any

       conclusions about whether Thomas was intoxicated. However, the order did

       not preclude Officer Miller from testifying about Thomas’s state or his general

       impressions of her on the night of the incident. The contested section of Officer

       Miller’s testimony reads as follows:


               I told her her vehicle was inoperable because it only had three tires
               so it was gonna have to be towed. It was blocking traffic too, that
               was another reason it had to be towed and I asked her if she
               thought that she had maybe too much to drink to be driving in the
               first place and she stated, yes.


       Tr. Vol. II p. 35-36. Officer Miller did not state that Thomas was intoxicated.

       Rather, he was recounting the events of that evening and describing to the jury

       how Thomas responded to his questions. Officer Miller’s testimony reflected his

       general observations about Thomas’s appearance and behavior and not his
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019   Page 8 of 12
       specific conclusions about her intoxicated state. Accordingly, we find that the

       State, through Officer Miller’s testimony, did not violate the order in limine.


[16]   Given that there was no violation of the order in limine, no admonishment was

       strictly required. Nevertheless, to address concerns about jury confusion, the

       trial court provided an appropriate admonishment and explanation. And, the

       trial court’s responses to the juror’s question ensured that the jury understood

       that intoxication was not pertinent to their deliberations. As such, the trial court

       did not err by denying Thomas’s motion for a mistrial.


                             II. Sufficiency of Evidence
[17]   Next, Thomas argues that the evidence was insufficient to support her

       conviction for Level 6 felony resisting law enforcement. Specifically, she insists

       that she was not ordered to stop and that she did not flee.


[18]   When reviewing the sufficiency of the evidence supporting a conviction, we

       must affirm if the probative evidence and reasonable inferences drawn

       therefrom could have allowed a reasonable trier of fact to find the defendant

       guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

       2005). It is not our job to reweigh the evidence or to judge the credibility of the

       witnesses, and we consider any conflicting evidence most favorably to the trial

       court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).


[19]   To convict Thomas of Level 6 felony resisting law enforcement, the State was

       required to prove beyond a reasonable doubt that, while using a vehicle to

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019   Page 9 of 12
       commit the offense, Thomas knowingly or intentionally fled from a law

       enforcement officer after the officer had, by visible or audible means—including

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

       identified himself and ordered the person to stop. I.C. §§ 35-44.1-3-1(a)(3), -

       1(b)(1)(A).


[20]   A police officer’s order to stop need not be audible. Spears v. State, 412 N.E.2d

       81, 83 (Ind. Ct. App. 1980). The order to stop may be given through visual

       indicators. Fowler v. State, 878 N.E.2d 889, 894 (Ind. Ct. App. 2008). Evidence

       of a proper visual order to stop is based on the circumstances surrounding the

       incident and whether a reasonable person would have known that he or she had

       been ordered to stop. Id. at 894-95.


[21]   Thomas contends that Officer Miller’s use of the phrase “sit tight” did not

       constitute a formal order to stop because it was a mere colloquialism. However,

       Thomas fails to recognize that there were other indicators beyond “sit tight”

       that contextualized the situation. For one, Officer Miller approached Thomas’s

       vehicle fully dressed in his uniform. See Czobakowsky v. State, 566 N.E.2d 87, 89

       (Ind. Ct. App. 1991) (holding that “the approach of a police officer, coupled

       with other circumstances . . . would [] support the conclusion a visual order to

       stop had been given”). Officer Miller repeatedly told Thomas that her vehicle

       was inoperable, that she should call someone to pick her up, and that the

       vehicle itself needed to be towed. After multiple attempts to prevent her from

       driving home, Officer Miller asked for and attained Thomas’s driver’s license.

       He then told her to “sit tight” and that he would “be right back with her.” Tr.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019   Page 10 of 12
       Vol. II p. 57. While running a search of Thomas’s driver’s license and

       ultimately discovering that it was suspended, Officer Miller witnessed Thomas

       driving away.


[22]   The totality of the circumstances here created both a visual and audible order to

       stop. While a police officer’s utterance of “sit tight” alone could be seen as

       ambiguous, there were numerous other actions taken by Officer Miller such that

       a reasonable person would have known that she was ordered to stop. A person

       in Thomas’s position would have understood that Officer Miller’s actions and

       words taken together—including the instruction to “sit tight”—meant that she

       could not leave the scene.


[23]   Next, there is the question of whether Thomas fled from Officer Miller. This

       Court has defined “flight” to mean “a knowing attempt to escape law

       enforcement when the defendant is aware that a law enforcement officer has

       ordered him to stop or remain in place once there.” Wellman v. State, 703

       N.E.2d 1061, 1063 (Ind. Ct. App. 1998). Flight is not defined by the “speed,

       mode, and manner of retreat[.]” Id.


[24]   It did not matter that Thomas was only driving between fifteen and thirty miles

       per hour and had only driven one to two blocks from the scene. The fact is that

       Thomas drove away in an inoperable vehicle without her suspended driver’s

       license after having been ordered to stop. A reasonable person in Thomas’s

       position would have known that she could not leave, and therefore, any attempt




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019   Page 11 of 12
       to leave the scene would constitute flight. Thus, there was sufficient evidence to

       demonstrate that Thomas, in fact, fled from Officer Miller.


[25]   Accordingly, the probative evidence and reasonable inferences drawn therefrom

       could have allowed a reasonable trier of fact to find Thomas guilty of Level 6

       felony resisting law enforcement. In sum, the evidence is sufficient.


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


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019   Page 12 of 12
