MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                       Mar 30 2017, 6:11 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Lake County Public Defender                              Attorney General of Indiana
Crown Point, Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Thomas Clark,                                            March 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1610-CR-2300
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         45G01-0907-FB-63



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1610-CR-2300 | March 30, 2017   Page 1 of 6
[1]   Thomas Clark was convicted of Resisting Law Enforcement, 1 a Class D Felony.

      He argues that the State did not offer sufficient evidence to show that he

      resisted law enforcement. Finding sufficient evidence, we affirm.


                                                       Facts      2




[2]   On July 1, 2009, Officer Highland Weaver of the Schererville Police

      Department was working on patrol when he was dispatched to the Immanuel

      Presbyterian Church because of a report that a man later identified as Clark was

      there and armed. The dispatch included a description of a dark color 2007

      Mitsubishi. Officer Weaver was already on a nearby street and drove there

      immediately in a fully marked squad car with the lights and sirens on. When he

      arrived at the church, he saw the vehicle driven by Clark coming out of the

      church’s driveway. Officer Weaver tried to block Clark’s exit in such a way

      that would show that he was trying to make a traffic stop, but Clark went

      around the officer’s vehicle and entered Route 30. Clark sped up and entered

      the road’s westbound traffic. Officer Weaver was “right behind” Clark and had

      his lights and sirens activated. Tr. p. 31. The traffic on the road was moderate.

      Officer Weaver did not know whether Clark saw him.




      1
       Ind. Code § 35-44-3-3 (2006). The statute that applied at the time of Clark’s offense has since been repealed
      and re-codified at Indiana Code section 35-44.1-3-1.
      2
        Oral argument took place on March 16, 2017, at the Culver Academies. We thank counsel for the quality
      of their written and oral arguments, for participating in the post-argument discussion with the audience, and
      for commuting to Culver. We especially thank the faculty, staff, and students of the Culver Academies for
      their gracious hospitality and thoughtful post-argument questions.

      Court of Appeals of Indiana | Memorandum Decision 45A03-1610-CR-2300 | March 30, 2017              Page 2 of 6
[3]   Route 30 has an emergency lane that law enforcement officers can use to

      conduct traffic stops. Officer Weaver radioed other units to have them observe

      whether the vehicle he was following was the vehicle matching the description

      in the dispatch. At some point, Clark’s vehicle accelerated with Officer

      Weaver’s vehicle behind him. Route 30’s speed limit is fifty miles per hour;

      Clark was driving about fifty-five miles per hour and did not exceed sixty miles

      per hour. As they continued westbound, they passed three intersections before

      reaching the four-way traffic light at the Joliet Street intersection. Clark tried to

      go around the traffic that was at the intersection, but he was blocked in by

      squad cars. Officer Daniel Smith had approached the intersection driving

      eastbound in the westbound turn lane or shoulder; he testified that he had the

      impression that Clark was going to continue driving based on Clark’s vehicle’s

      abrupt movement into his lane. At the time of the stop, Officer Weaver had

      followed Clark for less than a mile—which took one to two minutes—before

      Clark pulled over. Officer Weaver got out of his vehicle, drew his weapon, and

      with the other officers who had arrived, approached Clark. Clark cooperated

      with the officers; he voluntarily gave his name to them and answered honestly

      when asked if he had any weapons in the vehicle. The officers apprehended

      Clark and took him into custody.


[4]   The State charged Clark with resisting law enforcement, a Class D felony.

      Following a July 18, 2016, jury trial, a jury found Clark guilty as charged. On

      September 1, 2016, the trial court sentenced him to two years, all of which was

      suspended to probation. Clark now appeals.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1610-CR-2300 | March 30, 2017   Page 3 of 6
                                   Discussion and Decision
[5]   Clark argues that there was insufficient evidence to convict him of resisting law

      enforcement. Specifically, he challenges whether Officer Weaver ordered him

      to stop and whether he fled from law enforcement. When reviewing a claim of

      insufficient evidence, we will consider only the evidence and reasonable

      inferences that support the conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind.

      2011). We will affirm if, based on the evidence and inferences, a reasonable

      jury could have found the defendant guilty beyond a reasonable doubt. Bailey v.

      State, 907 N.E.2d 1003, 1005 (Ind. 2009). To convict Clark of Class D felony

      resisting law enforcement, the State had to prove beyond a reasonable doubt

      that Clark knowingly or intentionally fled from a law enforcement officer after

      the officer had, by visible or audible means, including operation of the law

      enforcement officer’s siren or emergency lights, identified himself as a law

      enforcement officer and had ordered Clark to stop. I.C. § 35-44-3-3 (2006).


[6]   Clark first asserts that the evidence does not sufficiently show that Officer

      Weaver ordered Clark to stop. A police officer’s 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 had been ordered to stop. Id. at 894-95.


[7]   The statute in effect at the time Clark was stopped stated that an order to stop

      could be given through activation of a police cruiser’s lights and sirens. Officer


      Court of Appeals of Indiana | Memorandum Decision 45A03-1610-CR-2300 | March 30, 2017   Page 4 of 6
      Weaver testified that he responded to the dispatch with his vehicle’s lights and

      siren activated. He tried to block Clark’s exit from the church parking lot when

      Clark drove around him and onto Route 30. Clark did not immediately pull

      over, even though Officer Weaver followed him for nearly a mile on Route 30

      with his lights and siren on. In light of this evidence, the jury could have

      reasonably inferred that Officer Weaver ordered Clark to stop, and that Clark

      would have known that he had been ordered to stop.


[8]   Clark next asserts that the evidence does not sufficiently show that he fled from

      law enforcement. This Court considers the definition of “flee from justice” as

              Removing one’s self from or secreting one’s self within
              jurisdiction wherein offense was committed to avoid arrest; or
              concealing one’s self therein, with intent, in either case, to avoid
              arrest, detention, or punishment for some criminal offense.


      Cowans v. State, 53 N.E.3d 540, 545 (Ind. Ct. App. 2016) (citing Black’s Law

      Dictionary (6th ed. 1990)). “Flight” in the context of the resisting statute

      “should be understood 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.” Id. (citation omitted).


[9]   The evidence favorable to the trial court’s verdict shows that Clark drove

      around Officer Weaver and passed at least three intersections before being

      forced to stop. Officer Smith testified that he thought Clark would have

      continued driving had Smith not blocked him with his squad car. Moreover,

      even though Clark may not have driven fast or far after being ordered to stop,

      Court of Appeals of Indiana | Memorandum Decision 45A03-1610-CR-2300 | March 30, 2017   Page 5 of 6
       speed and distance do not necessarily determine whether he fled from law

       enforcement. See Manning v. State, 995 N.E.2d 1066, 1072 (Ind. Ct. App. 2013)

       (finding that the defendant fled when she moved her vehicle forward in stopped

       traffic and when the traffic began to proceed despite the presence of police cars

       with sirens and emergency lights activated and police officers yelling at her with

       their guns drawn). The jury could have drawn the reasonable inference that

       Clark continued driving on Route 30 despite knowing that he had been ordered

       to stop; further, the jury could have reasonably concluded that such action

       constituted flight from law enforcement. In essence, Clark is asking us to

       reweigh the evidence and reassess the credibility of the witnesses, which we will

       not do. We find the evidence sufficient to support the conviction.


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


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1610-CR-2300 | March 30, 2017   Page 6 of 6
