                                                            FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                Jun 18 2012, 9:44 am
court except for the purpose of establishing
the defense of res judicata, collateral
                                                                 CLERK
estoppel, or the law of the case.                              of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DEBORAH MARKISOHN                                GREGORY F. ZOELLER
Marion County Public Defender Agency             Attorney General of Indiana
Indianapolis, Indiana
                                                 MONIKA PREKOPA TALBOT
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

COREY WEAVER,                                    )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A04-1111-CR-612
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Marc T. Rothenberg, Judge
                    The Honorable Anne Flannelly, Master Commissioner
                             Cause No. 49F09-1007-FD-52391



                                       June 18, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
      Following a jury trial, Appellant-Defendant Corey Weaver appeals following his

convictions for two counts of Class A misdemeanor Resisting Law Enforcement.1 Upon

appeal, Weaver claims that his dual convictions are improper and that the trial court

abused its discretion in admitting certain evidence. We affirm in part, reverse in part,

and remand.

                          FACTS AND PROCEDURAL HISTORY

      On July 3, 2010, at approximately 10:46 p.m., Indianapolis Metropolitan Police

Officer Grady Copeland was dispatched to a residence in the Haughville neighborhood,

where there was a report of a man of a particular description in possession of a gun.

Officer Copeland was in full police uniform and driving a fully marked police car. Upon

arriving, Officer Copeland saw the person described by dispatch, whom he subsequently

identified to be Weaver, along with two other individuals.           Officer Copeland

immediately exited his car and ordered Weaver multiple times to stop and show his

hands. Weaver did not comply. Officer Copeland subsequently saw another individual

point at Weaver and indicate he had a gun, which caused Officer Copeland to point his

gun at Weaver and order him to stop, show his hands, and lower himself to the ground.

Weaver, who was on the phone at the time, confirmed that he had a gun, and said it was

“right here,” reaching toward his shorts pocket with his hand. Tr. p. 63. Weaver

claimed that he was on the phone with 911. Officer Copeland repeatedly ordered

Weaver to hang up his phone and threatened to shoot him if he reached for his gun.



      1
          Ind. Code § 35-44-3-3 (2010).


                                           2
      Other officers began to arrive, including Indianapolis Metropolitan Police Officer

Chad Pryce. Weaver began walking backwards, then stopped and turned to walk away.

Officers Copeland and Pryce approached Weaver and grabbed his arms in an attempt to

take him to the ground. Officer Copeland grabbed Weaver’s left arm and Officer Pryce,

who was holding a taser, grabbed Weaver’s right arm. Weaver tensed up and tried to

pull himself out from Officer Copeland’s grasp, pulling Officer Copeland into his body.

After further efforts, and with the assistance of another officer, Officers Copeland and

Pryce succeeded in placing Weaver on the ground, at which point Weaver put his left

hand underneath his body and refused to present it for handcuffing. Officer Copeland

repeatedly told Weaver to place his hand behind his back and succeeded in forcing

Weaver’s hands into handcuffs with help from other officers. At that point, Officer

Copeland recovered the gun from Weaver’s front pocket and arrested Weaver.2

      On July 6, 2010, the State charged Weaver with Class D felony criminal

recklessness (Count 1), Class D felony pointing a firearm (Count 2), and two counts of

Class A misdemeanor resisting law enforcement (Counts 3 and 4). Count 3 alleged that

Weaver resisted Officer Pryce; Count 4 alleged that Weaver resisted Officer Copeland.

On October 19, 2011, the State moved to dismiss Counts 1 and 2 and to rename Counts

3 and 4 as amended Counts 1 and 2. The trial court granted the motions.

      At trial, defense counsel sought to introduce the recording of Weaver’s 911 call in

order to show Weaver’s state of mind.                    The trial court excluded this evidence.

Following trial, the jury found Weaver guilty of amended Counts 1 and 2. The trial
      2
          Weaver introduced his gun permit as an exhibit at trial.


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court sentenced Weaver to concurrent sentences of 365 days in the Marion County Jail,

with 351 suspended, 180 to probation on each. This appeal follows.

                            DISCUSSION AND DECISION

                                 I.     Dual Convictions

       Upon appeal, Weaver challenges his convictions for both Counts I and II.

Weaver points to Armistead v. State, 549 N.E.2d 400, 401 (Ind. Ct. App. 1990), in which

this court observed that a defendant cannot be held liable for more than one count of

resisting law enforcement, regardless of the number of officers involved, if the charges

stem from a single event. As the Armistead court observed, the offense of resisting law

enforcement is a crime against public administration, specifically the State of Indiana

and law enforcement authority, rather than any particular person. Id. (interpreting Ind.

Code § 35-44-3-3). “It is the act of resisting duly constituted authority which the statute

prohibits, not resisting individual representatives of that authority.” Id.

       In Armistead, the defendant, who had approached officers who were questioning

his brother, backed away from an officer, yelled obscenities at him, and assumed a

pugilistic stance. Id. When the officer indicated he needed to talk to the defendant, he

remained confrontational and appeared prepared to flee. Id. A second officer told the

defendant that he would be arrested if he did not calm down, causing the defendant to

back into a chain link fence and continue to yell. Id. This second officer told the

defendant he was under arrest and ordered him to turn around, which the defendant

would not do, so the second officer tried to turn him around. Id. At this point the

defendant hit a third officer in the nose, causing a struggle in which all three officers

                                              4
were injured.    Id.   The defendant was convicted of Class D felony resisting law

enforcement with respect to the third officer and Class A misdemeanor resisting law

enforcement with respect to the first and second officers. Id. This court reversed,

concluding that the defendant had received three convictions based upon a “single affray

with the police.” Id. at 402.

       The rule in Armistead has been frequently cited. In Vest v. State, 930 N.E.2d

1221, 1227 (Ind. Ct. App. 2010), reh’g denied, trans. denied, this court observed, “[T]he

general rule is that in a single, continuous episode of resisting law enforcement, ‘only

one offense is committed regardless of the number of officers involved’” (quoting

Touchstone v. State, 618 N.E.2d 48, 49 (Ind. Ct. App. 1993)).         As the Vest court

acknowledged, there are exceptions to this rule, specifically when (1) the defendant

commits more than one of the acts enumerated under section 35-44-3-3, or (2) when

more than one officer sustains physical injury. Id. (citing Williams v. State, 755 N.E.2d

1183, 1186 (Ind. Ct. App. 2001) (multiple enumerated acts) and Whaley v. State, 843

N.E.2d 1, 14-15 (Ind. Ct. App. 2006) (multiple physical injuries)).

       Weaver argues that, like in Armistead, he similarly had a “single affray” with the

police. The State responds by arguing that Weaver’s acts of pulling away from Officer

Copeland and refusing to present his hand for handcuffing after he was on the ground

constitute separate incidents. According to the State, these incidents were separated by

the officers’ acts of wrestling Weaver to the ground. Had any significant span of time or

distance occurred between Weaver’s pulling away and his active refusal to present his

hands for cuffing, the State’s argument might be more persuasive. But there was no

                                            5
interruption in Weaver’s confrontation with the police. The confrontation was confined

to a single location, and it was short, lasting two minutes at most from the time Officer

Copeland arrived on the scene (Tr. 80) and one minute, at most, from the time Officer

Pryce arrived.      (Tr. 110)    Given the lack of any apparent interruption in the

confrontation, together with the short time frame and confined space in which it

occurred, we must conclude that a single incident occurred such that only one conviction

may be sustained.

       Significantly, there is no allegation that Weaver committed separate enumerated

acts under the statute or that the officers were separately injured. It is further telling that

the only stated basis for the State’s separate charges was the involvement of two separate

officers, which the State concedes does not serve as a valid basis for multiple

convictions. State’s Br. p. 8. (“[T]he number of police officers involved in a resisting

incident is irrelevant.”). Based upon Armistead and its progeny, we must conclude that

Weaver was erroneously convicted of two separate counts of resisting law enforcement.

See Touchstone, 618 N.E.2d at 49 (permitting single conviction where defendant

forcibly resisted one officer, requiring three officers to subdue and transport him to

police station). Accordingly, we reverse and remand with instructions to vacate one of

those convictions and its accompanying sentence.

                                      II.     Evidence

       Weaver additionally challenges the exclusion from evidence of a tape recording

of his phone call to 911. Weaver’s call to 911 lasted only until he hung up his phone as



                                               6
directed by police. According to Weaver, this tape recording was relevant to show his

state of mind at the time of the resisting law enforcement incident.

       The admission of evidence is left to the sound discretion of the trial court, and

this court will not reverse that decision absent an abuse of discretion. Weis v. State, 825

N.E.2d 896, 900 (Ind. Ct. App. 2005). An abuse of discretion occurs when the trial

court’s decision is against the logic and effect of the facts and circumstances before it.

Id.

       In excluding the 911 call from evidence, the trial court found that it was

incomplete and inaccurate. Apparently, Weaver’s was not the only call to 911. Another

longer call depicted a more extensive interaction between Weaver and the police. But

this longer call contained other prejudicial statements, and the State sought only to admit

it in the event that Weaver’s call was admitted.

       The trial court was within its discretion to exclude Weaver’s 911 call.

Significantly, the call was not demonstrably probative of his state of mind; it terminated

before Weaver committed the charged acts of resisting law enforcement. In addition, the

call, coming from Weaver’s phone, was from Weaver’s perspective only, with the police

involvement merely background noise.        In excluding Weaver’s call, the trial court

considered the longer 911 call detailing more extensive interaction between Weaver and

the police. Given the court’s evaluation of both recordings, it was entitled to conclude

that Weaver’s call was not a full portrayal of the circumstances and might unfairly

prejudice the State’s case. We find no abuse of discretion. See Ind. Evid. R. 403



                                             7
(permitting trial court to exclude evidence which is substantially more prejudicial than

probative).

       Further, any error in the exclusion of the recording is harmless. The recording

tends to show Weaver’s calm demeanor while speaking to the 911 operator and in the

initial moments after Officer Copeland’s arrival on the scene. While Weaver claims it

shows his state of mind as it relates to his resisting law enforcement, the actual acts of

resistance do not occur during the duration of the recording. To the extent the recording

establishes Weaver’s state of mind prior to the resisting acts, it says nothing about his

state of mind at the time he resisted. Weaver’s substantial rights were not affected by

the exclusion of his 911 call. See Fleener v. State, 656 N.E.2d 1140, 1141 (Ind. 1995)

(“Errors in the admission or exclusion of evidence are to be disregarded as harmless

error unless they affect the substantial rights of a party.”).

       The judgment of the trial court is affirmed in part, reversed in part, and remanded.

VAIDIK, J., and CRONE, J., concur.




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