MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                              FILED
regarded as precedent or cited before any                     Aug 16 2017, 9:18 am

court except for the purpose of establishing                       CLERK
the defense of res judicata, collateral                        Indiana Supreme Court
                                                                  Court of Appeals
                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Thomas P. Keller                                         Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General

                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Norbert Machan,                                          August 16, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1703-CR-549
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff                                       Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1509-F5-195



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-549 | August 16, 2017   Page 1 of 9
                                             Case Summary
[1]   Norbert Machan appeals his conviction for level 5 felony escape. He claims

      that the evidence is insufficient to support his conviction and that the statute

      defining “lawful detention” is unconstitutionally vague. Finding the evidence

      sufficient to support his conviction and finding that he has waived and

      otherwise failed to establish his vagueness claim, we affirm.


                                 Facts and Procedural History
[2]   Machan was released on bond on certain criminal charges. He failed to appear

      for a scheduled court date, and when he was found and brought before the trial

      court, the magistrate raised his bond and asked him whether he had the funds

      to pay the bond. He replied that he did not, and the magistrate ordered him

      detained. A deputy sheriff approached Machan and ordered him to place his

      hands behind his back. Before the deputy could apply the handcuffs, Machan

      fled the courtroom and then the courthouse. He then ran down the street, with

      officers in pursuit. When the officers ordered him to stop, he yelled, “F**k

      you,” and continued running. Tr. Vol. 2 at 43.


[3]   The State charged Machan with level 5 felony escape. A jury convicted him as

      charged, and the trial court sentenced him to a four-year term.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-549 | August 16, 2017   Page 2 of 9
                                     Discussion and Decision

         Section 1 – The evidence is sufficient to support Machan’s
                                conviction.
[4]   Machan maintains that the evidence is insufficient to support his escape

      conviction. When reviewing a challenge to the sufficiency of evidence, we

      neither reweigh evidence nor judge witness credibility. Drane v. State, 867

      N.E.2d 144, 146 (Ind. 2007). Rather, we consider only the evidence and

      reasonable inferences most favorable to the verdict and will affirm the

      conviction “unless no reasonable fact-finder could find the elements of the

      crime proven beyond a reasonable doubt.” Id. It is therefore not necessary that

      the evidence “overcome every reasonable hypothesis of innocence.” Id.

      (citation omitted).


      The jury convicted Machan of level 5 felony escape. To establish this offense,

      the State was required to prove that Machan intentionally fled from lawful

      detention. Ind. Code § 35-44.1-3-4(a). Machan admits that he intentionally

      fled the courtroom and the courthouse but claims that the State failed to

      establish that he was lawfully detained when he fled.


[5]   Indiana Code Section 35-31.5-2-186(a) defines “lawful detention” as follows:


              (1) arrest;


              (2) custody following surrender in lieu of arrest;




      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-549 | August 16, 2017   Page 3 of 9
        (3) detention in a penal facility;

        (4) detention in a facility for custody of persons alleged or found
        to be delinquent children;


        (5) detention under a law authorizing civil commitment in lieu of
        criminal proceedings or authorizing such detention while
        criminal proceedings are held in abeyance;


        (6) detention for extradition or deportation;


        (7) placement in a community corrections program’s residential
        facility;


        (8) electronic monitoring;


        (9) custody for purposes incident to any of the above including
        transportation, medical diagnosis or treatment, court
        appearances, work, or recreation; or


        (10) any other detention for law enforcement purposes.


Statutory interpretation is a question of law to be reviewed de novo. Adams v.

State, 960 N.E.2d 793, 797 (Ind. 2012). Our primary objective when

interpreting a statute is to ascertain and give effect to the intent of the

legislature. Day v. State, 57 N.E.3d 809, 812 (Ind. 2016). “We examine the

statute as a whole and give common and ordinary meaning to the words

employed.” Anglin v. State, 787 N.E.2d 1012, 1016 (Ind. Ct. App. 2003), trans.

denied (2004).



Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-549 | August 16, 2017   Page 4 of 9
[6]   In Anglin, another panel of this Court interpreted the “lawful detention”

      statute,1 focusing on when lawful detention begins and who performs the

      detention. Id. at 1016-17. There, Anglin was before the trial court for

      sentencing, and after the court pronounced a sentence of one year in the county

      jail, the court ordered him to wait in the hall for the transport officer to take

      him to jail. Id. at 1015. Instead of waiting, Anglin walked out of the

      courthouse and was not found until weeks later. Id. He was convicted of

      escape and appealed, challenging the sufficiency of the evidence to establish

      that he was under “lawful detention” when he fled. Id. The Anglin court

      interpreted the statutory phrase “any other detention for law enforcement

      purposes” and determined that the court’s order effectively placed Anglin under

      lawful detention, reasoning that

              Indiana Code § 35-41-1-18 does not explicitly limit its application
              to situations in which a law enforcement officer has control of an
              individual. While that would generally be the accepted view of
              many of the factors which are considered as lawful detention, it is
              not necessarily so. Further, what is critical in determining the
              meaning of “any other detention for law enforcement purposes”
              is that an individual is being detained so that he is subject to
              legitimate law enforcement purposes. In this case, the law
              enforcement purpose for which Anglin was ordered to wait in the
              hallway was for transportation to the jail and incarceration to
              serve the sentence which he had just been ordered to serve.
              While the initial detention itself was not performed by a law
              enforcement officer, that is not fatal to the conviction for the



      1
        Anglin interpreted Indiana Code Section 35-41-1-18, the predecessor statute to Indiana Code Section 35-
      31.5-2-186, which contained identical language to define “lawful detention.”

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              crime as charged by the State. The trial court's order indicated
              that the sentence was to begin immediately, that actual
              incarceration would take place momentarily, and that Anglin
              was being turned over to the Sheriff's Department as soon as the
              hearing was over. Anglin was “detained” by the trial court in
              that he was not free to leave the building as soon as he was
              informed that the Sheriff's Department would pick him up at the
              designated location in the courthouse. That Anglin was not in
              the physical custody of the transport officer at the time that he
              fled does not exclude the conclusion that he was in “detention for
              law enforcement purposes.”


      Id. at 1017.


[7]   Machan does not attempt to distinguish Anglin. Nor could he effectively do so,

      as the facts in this case are even more compelling regarding a finding of lawful

      detention. As best we can discern, he simply asks that we decline to follow

      Anglin. We decline his unsupported invitation. Here, the magistrate2 ordered

      that Machan be detained when Machan admitted that he could not pay the

      increase in bond stemming from his failure to appear. When the deputy

      ordered Machan to put his hands behind his back and attempted to handcuff

      him, Machan fled. Whether the deputy actually touched Machan’s arm before

      Machan fled is irrelevant, as the magistrate’s order had been given and the

      officer’s attempts to subdue Machan were clearly underway. Machan ran out

      of the courthouse and down the street, with officers in pursuit, and yelled “F**k




      2
       Machan correctly observes that a magistrate is not considered a law enforcement officer under Indiana
      Code Section 35-41-1-17. Nevertheless, Indiana Code Section 33-23-5-5 empowers a magistrate to compel a
      witness’s attendance, set bail, enforce court rules, and enter a final order.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-549 | August 16, 2017        Page 6 of 9
      you,” when they ordered him to stop. Tr. Vol. 2 at 43. Based on these facts,

      we conclude that Machan intentionally fled lawful detention. Thus, the

      evidence is sufficient to support his escape conviction.


      Section 2 – Machan has waived his vagueness challenge to the
      lawful detention statute and has otherwise failed to establish
               that the statute is unconstitutionally vague.
[8]   Machan also contends that Indiana Code Section 35-31.5-2-186, which defines

      lawful detention, is unconstitutionally vague because “[a] person of ordinary

      intellect would be hard pressed to realize that running from law enforcement

      would be the same as escaping from custody.” Appellant’s Br. at 16. Notably,

      he did not file a motion to dismiss his escape charge for constitutional defect.

      “[G]enerally, the failure to file a proper motion to dismiss raising a

      constitutional challenge waives the issue on appeal.” Lee v. State, 973 N.E.2d

      1207, 1209 (Ind. Ct. App. 2012), trans. denied. Because Machan failed to raise

      the issue by motion below, he has waived it for our consideration.


[9]   Waiver notwithstanding, the issue of a statute’s constitutionality is a question of

      law, and we review using a de novo standard, resolving any reasonable doubts

      and constructions in favor of the statute’s constitutionality. Id. A person

      challenging the constitutionality of a statute must overcome a presumption that

      the statute is constitutional. Id. “A fundamental aspect of our nation’s

      jurisprudence is that criminal statutes must give a person of ordinary

      intelligence fair notice that his contemplated conduct is forbidden so that no

      [person] shall be held criminally responsible for conduct which he could not

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       reasonably understand to be proscribed.” Id. (quoting Lock v. State, 971 N.E.2d

       71, 74 (Ind. 2012)). In other words, “the statutory language must ‘convey

       sufficiently definite warning as to the proscribed conduct when measured by

       common understanding.’” Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007)

       (citation omitted).


[10]   Indiana Code Section 35-31.5-2-186 lists nine specific definitions for the term

       “lawful detention” followed by a catchall definition, which reads, “(10) any

       other detention for law enforcement purposes.” Machan challenges this

       provision as “so broad as to render it unconstitutionally vague.” Appellant’s

       Br. at 14. We disagree. A catchall provision by its nature will be broader, in

       the interest of covering circumstances not specifically enumerated in other

       subsections. This eliminates the necessity of contemplating and listing every

       specific circumstance that amounts to lawful detention. Catchall provisions are

       included in a variety of statutes for this very reason.


[11]   In Woods v. State, 236 Ind. 423, 425-26, 140 N.E.2d 752, 752-53 (1957), our

       supreme court reviewed a vagueness challenge to the statute defining the

       offense of “obtaining property under false pretense.” The statute in effect at the

       time included the phrase, “obtains from any person, persons, firm or

       corporation any money, or the transfer of any bond, bill, receipt, promissory

       note, draft, or check, or thing of value.” Id. at 426, 140 N.E.2d at 753. There,

       Woods obtained a shotgun by means of a forged invoice. Id. He challenged the

       catchall clause “or thing of value,” claiming that the maxim of ejusdem generis

       limited the “things of value” to those in the same category as money, bonds,

       Court of Appeals of Indiana | Memorandum Decision 71A03-1703-CR-549 | August 16, 2017   Page 8 of 9
       bills, receipts, promissory notes, drafts, or checks, that is, commercial paper and

       like intangibles. Id. Our supreme court disagreed, concluding that “any

       reasonable person would recognize that a gun is a thing of value,” and

       emphasizing that ejusdem generis is not a rule of mandatory application. Id. at

       429, 140 N.E.2d at 754.


[12]   Finally, “[a] statute is void for vagueness only if it is vague as applied to the

       precise circumstances of the instant case.” Zitlaw v. State, 880 N.E.2d 724, 731

       (Ind. Ct. App. 2008), trans. denied. Here, it is not vague. The magistrate told

       Machan that he was being detained, and while the deputy was attempting to

       place Machan in handcuffs, he fled. He ran outside the building and down the

       street, yelling profanities to pursuing officers who ordered him to stop. A

       person of ordinary intelligence would understand that he is fleeing from lawful

       detention in these circumstances. Even absent waiver, Machan has failed to

       establish that the statute is unconstitutionally vague. Accordingly, we affirm.


[13]   Affirmed.


       Vaidik, C.J., and Mathias, J., concur.




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