                                                          Nov 21 2014, 8:35 am

FOR PUBLICATION


ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

JOEL L. SCHUMM                                GREGORY F. ZOELLER
Indianapolis, Indiana                         Attorney General of Indiana

                                              GEORGE P. SHERMAN
                                              Deputy Attorney General
                                              Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

ANTWONNA SMITH,                               )
                                              )
       Appellant-Defendant,                   )
                                              )
              vs.                             )        No. 49A02-1312-CR-1015
                                              )
STATE OF INDIANA,                             )
                                              )
       Appellee-Plaintiff.                    )


                    APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Amy Jones, Judge
                           Cause No. 49F08-1203-FD-19889


                                   November 21, 2014

                              OPINION – FOR PUBLICATION



MAY, JUDGE
         Antwonna Smith was convicted after a jury trial of Class D felony theft1 and Class D

felony resisting law enforcement.2 Resisting law enforcement is a Class A misdemeanor, but

when Smith committed the offense it could be enhanced to a Class D felony if the person

“inflicts bodily injury on or otherwise causes bodily injury to another person.” Ind. Code §

35-44.1-3-1. Smith’s conviction of resisting law enforcement was enhanced to a Class D

felony on the ground she inflicted bodily injury after a police officer scraped his knuckle and

fingertip while forcing Smith to the ground. Smith argues on appeal the enhancement was

error because she did not “inflict” the injury on the officer and the “cause”3 of the injury was

the officer’s action, not hers. We agree and therefore reverse and remand so the trial court

may enter a conviction of resisting law enforcement as a Class A misdemeanor.

                            FACTS AND PROCEDURAL HISTORY4

         Smith left a Meijer store without paying for some items. A Meijer loss prevention

employee followed Smith to the parking lot and confronted her about shoplifting. She denied

taking the items and continued walking toward her car. Another loss prevention employee


1
    Ind. Code § 35-43-4-2 (2011).

2
    Ind. Code § 35-44.1-3-1 (2011).

3
  While the Indiana statute allows an enhancement when a defendant “inflicts bodily injury on or otherwise
causes bodily injury,” Ind. Code § 35-44.1-3-1 (emphasis added), Smith was charged only with “inflicting”
bodily injury. The charging information does not allege she “caused” the officer’s injury; it alleges only that
she “did knowingly and forcibly resist, obstruct, or interfere with [the officer] . . . and further that while doing
so, [Smith] inflicted bodily injury on [the officer].” (App. at 22) (emphasis added).
  The purpose of an information is to advise the defendant of the crime with which she is charged so she can
prepare a defense. Bei Bei Shuai v. State, 966 N.E.2d 619, 626 (Ind. Ct. App. 2012), trans. denied. Smith
does not argue on appeal the charging information was inadequate.

4
  We heard oral argument September 12, 2014, at Linton-Stockton High School in Linton, Indiana. We thank
the school for its hospitality and commend counsel for the quality of their oral advocacy.
                                                         2
called Officer Rick Jones, a police officer and former Meijer loss prevention employee who

was nearby. The employee told Officer Jones about the shoplifting and provided a

description. Smith left in her car, and two Meijer employees followed her so they could

identify her when Officer Jones stopped her.

        Officer Jones found Smith’s car and pulled her over. When the Meijer employees

arrived, Officer Jones had them look into Smith’s car to identify the items she had taken from

the store. They identified Smith and the items, and Officer Jones asked Smith to step out of

the car so he could arrest her. When Smith was outside the car, Officer Jones asked her to

put her hands behind her back, but she did not comply. The officer tried to handcuff her, but

she would not put her hands behind her. Smith moved toward the driver’s door of her car,

and the officer “forcefully put all [his] body weight onto her body . . . to prevent her from

getting into the vehicle.” (Tr. at 77.)

        There was a struggle, and one of the Meijer employees grabbed Smith’s arm.5 Officer

Jones told Smith: “You don’t want me to take you to the ground. It’s wet. Just put your

hands behind your back and we won’t end up on the ground. You won’t be taken to the

ground.” (Id. at 78.) Smith still would not submit to being handcuffed, so the officer “gave

her a knee strike,” (id.), which he described as “a pain compliance technique to whereas if I

can apply some pain to . . . a nerve that runs to the muscle of your leg. . . . [I]t’s a temporary



5
   The State says in its brief that the employee “felt compelled to intervene and assist the police officer by
trying to hold down one of Smith’s arms.” (Br. of Appellee at 3.) Nothing in the part of the transcript to
which the State directs us suggests the employee was “compelled” to do what he did or what his reasons were
for doing it. The transcript says only that the employee “came onto her left side and actually grabbed a hold of
her arm . . . her left arm.” (Tr. at 78.)
                                                       3
pain . . . it’s designed to take your mind off what you’re currently doing.” (Id. at 78-79.)

That did not have the desired effect, so the officer “pulled her arm as [sic] about as possibly

as hard as I could [and] we ended up on the ground.” (Id. at 80.)

        Smith told Officer Jones he had broken her leg, and she testified she was hospitalized

four days for her injuries. After they fell, Officer Jones discovered “lacerations to [sic]

scraping from being on the pavement . . . in [sic] one of my knuckles and my fingertip area.”

(Id. at 81.) The injury was “painful,” (id. at 83), but was “nothing that prohibited me from

continuing to write with a pencil” and it did not prevent the officer from returning to work.

(Id.) Medics cleaned the wound but did not bandage it.

        The State charged Smith with theft and resisting arrest, and it elevated the latter

charge to a Class D felony based on the injury to the officer. A jury found Smith guilty of

both.

                             DISCUSSION AND DECISION

        On a review for sufficient evidence, an appellate court will look only to the evidence

most favorable to the judgment and all reasonable inferences to be drawn therefrom. Woods

v. State, 274 Ind. 624, 629, 413 N.E.2d 572, 575 (1980). If the existence of each element of

the crime charged may be found therefrom, beyond a reasonable doubt, the verdict will not be

disturbed. Id. In such a review, we will not weigh conflicting evidence nor will we judge the

credibility of the witnesses. Id. But on a claim of insufficient evidence we have a duty to

examine the evidence closely, not with a view towards resolving conflicts thereon, but for the

purpose of determining whether, after resolving all reasonable doubts in favor of the verdict,

                                              4
it may be said that, on such evidence, a reasonable person could have reached such a verdict,

beyond a reasonable doubt. Id.

        There must be substantial evidence of probative value before we can decide an

accused has been proven guilty beyond a reasonable doubt. Id. That rule places the evidence

before the court on appeal, not for the purpose of weighing it, or for the purpose of

determining the facts when there is actual conflict, but for the purpose of deciding, as a

question of law, whether there is substantive evidence in support of the required material

facts essential to a conviction. Id. at 629-630, 413 N.E.2d at 575. It is not enough to sustain

a conviction that the evidence, when given full faith and credit, may warrant a suspicion or

amount to a scintilla. Id. at 630, 413 N.E.2d at 575.

        At the time of Smith’s offense,6 Ind. Code § 35-44.1-3-1 provided: “A person who

knowingly or intentionally: (1) 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; . . . commits resisting law enforcement.” The offense

was a Class A misdemeanor, but could be enhanced to a Class D felony if the person “inflicts

bodily injury on or otherwise causes bodily injury to another person.” Id.

        Smith concedes the officer was injured during the arrest, but argues the enhancement

was improper because the State did not prove Smith “inflicted” or “caused” the injury. The

officer was injured when he fell to the ground while forcing Smith to the ground. Smith says


6
  Thereafter, Public Law No. 158-2013 amended a number of statutes, including resisting law enforcement, to
implement a six-tiered “Level” sentencing structure for felony convictions in place of the four-tiered “Class”
sentencing structure for felonies. Pavlovich v. State, 6 N.E.3d 969, 973 n.3 (Ind. Ct. App. 2014), trans.
                                                      5
the events in this case might support an enhancement if the statute required that conduct

“result in” injury to another person, as did the language in Ind. Code § 35-42-2-1, which

provided battery was a Class B misdemeanor but was enhanced to a Class A misdemeanor “if

it results in bodily injury to any other person.” Smith notes similar language in other statutes.

See, e.g., Ind. Code § 35-42-5-1 (2013) (robbery is a Level 5 felony, but is a Level 2 felony

“if it results in serious bodily injury to any person”); Ind. Code § 35-43-2-1 (2013) (burglary

is a Level 5 felony, but is a Level 3 felony “if it results in bodily injury”).

          When construing a penal statute, ambiguous language must be construed strictly

against the State and in favor of the accused. Brown v. State, 868 N.E.2d 464, 470 (Ind.

2007). Brown was charged with identity deception, which is a crime when “a person . . .

knowingly or intentionally . . . uses the identifying information of another person: (1)

without the other person’s consent; and (2) with intent to: (A) harm or defraud another

person . . . or . . . profess to be another person.” Ind. Code § 35-43-5-3.5(a). Our Indiana

Supreme Court determined the phrase “identifying information” required the State to prove

Brown “used an individual’s name, address, date of birth, or other identifiers, to commit the

charged crime.” Brown, 868 N.E.2d at 470 (emphasis in original). There was evidence

Brown used information identifying a radio station without its consent, but there was no

evidence he used “the name, address, date of birth, or other identifiers of any existing human

being in perpetrating his hoax.” Id. As the evidence did not establish Brown committed the

offense by using information specifically identifying another individual human being, the


denied.
                                               6
evidence was insufficient to prove all the elements of identity deception. Id.

       Smith did not “inflict” an injury on the officer or “cause” the officer’s injury, and her

conviction should not have been enhanced to a felony. Officer Jones scraped his knuckle and

fingertip when he fell while forcing Smith to the ground, but we agree with Smith that she

was “a passive part of the encounter” and “took no actions toward” him. (Br. of Appellant at

7.)

       We acknowledge that in Whaley v. State, 843 N.E.2d 1, 10-11 (Ind. Ct. App. 2006),

trans. denied, a panel of this court reached the opposite result. Whaley, as does Smith in the

case before us, compared the “inflicts bodily injury” phrase with other statutes that use the

phrase “results in bodily injury.” Two deputies were chasing Whaley and they caught him

when he fell down. Whaley put his arms underneath his body so the deputies could not

handcuff him. The deputies had to hit Whaley’s forearms in order to bring his arms behind

his back. As a result, both deputies injured their hands. Whaley argued he did not inflict

bodily injury on the deputies; rather, he contended they inflicted injury on themselves by

hitting Whaley’s arms.

       Whaley argued the phrase “inflicts bodily injury” implied a “more direct causation.”

Id. at 11. The Whaley panel rejected that argument. It noted penal statutes must be strictly

construed against the State, but a statute should not be overly narrowed so as to exclude cases

fairly covered by it, and it should be interpreted so as to give efficient operation to the

expressed intent of the legislature. Id. The statute does not define “inflict,” and when the

legislature has not defined a word, we give the word its common and ordinary meaning. Id.

                                               7
“Inflict” is generally defined as “to cause (something unpleasant) to be endured.” Id.

(quoting Merriam–Webster Online Dictionary, available at www.m-w.com/dictionary). That

panel therefore determined a person resists law enforcement as a Class D felony if, while

committing the offense, he “causes someone to experience bodily injury.” Id. The deputies’

injuries were “directly related to and caused by Whaley’s resisting arrest.” Id. Therefore,

such actions were included within the definition of “inflict,” and the evidence was sufficient

to sustain Whaley’s convictions. Id.

       As we do not believe a person who is thrown to the ground necessarily “inflicts” or

“causes” an injury suffered by the person who throws her to the ground, we decline to follow

Whaley:

               This Court is respectful of the decisions of other panels and has so
       indicated in previous decisions. See, e.g., Lincoln Utils., Inc. v. Office of Util.
       Consumer Counselor, 661 N.E.2d 562, 565 (Ind. Ct. App. 1996) (a court on
       appeal will follow its previous decisions unless provided with strong
       justification for departure), [reh’g denied,] trans. denied. Indiana does not,
       however, recognize horizontal stare decisis. Thus, each panel of this Court
       has coequal authority on an issue and considers any previous decisions by
       other panels but is not bound by those decisions. See, e.g., O’Casek v.
       Children’s Home and Aid Society of Illinois, 229 Ill.2d 421, 323 Ill. Dec. 2,
       892 N.E.2d 994, 1014 n.4 (2008) (horizontal stare decisis is not an inexorable
       command, whereas vertical stare decisis is an obligation to follow the
       decisions of superior tribunals).
               The Indiana Appellate Rules specifically contemplate diverse outcomes
       by panels of this Court. Appellate Rule 57, governing petitions for transfer to
       our Supreme Court, recognizes conflicting decisions by this Court’s panels as a
       ground for transfer.
               It is axiomatic that the body of law on a topic is shaped by distinctions
       in the facts and circumstances presented in each case. . . . See Ind.
       Professional Conduct Rule 3.1, Comment (“[T]he law is not always clear and
       never is static. Accordingly, in determining the proper scope of advocacy,
       account must be taken of the law’s ambiguities and potential for change.”).

                                               8
In re C.F., 911 N.E.2d 657, 658 (Ind. Ct. App. 2009).

      In the instant case, Officer Jones chose to halt Smith’s resistance by throwing her to

the ground, and the officer was injured in so doing. Unlike Whaley, Smith did not create a

scenario in which Officer Jones’ only option in handcuffing her was to remove her hands

from a location in which he could not reach.

      As Smith did not inflict or directly cause Officer Jones’ injury, her conviction should

not have been enhanced to a felony. We must therefore reverse and remand.

      Reversed and remanded.

BAILEY, J., and BROWN, J., concur.




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