                                                           FILED
Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                         May 10 2012, 9:21 am
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                    CLERK
                                                              of the supreme court,
                                                              court of appeals and
                                                                     tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

GARY L. GRINER                                  GREGORY F. ZOELLER
Mishawaka, Indiana                              Attorney General of Indiana

                                                BRIAN REITZ
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                    COURT OF APPEALS OF INDIANA

SETH T. LIPSCOMB,                               )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 71A03-1109-CR-443
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                       The Honorable Roland W. Chamblee, Jr., Judge
                             Cause No. 71D08-1005-FD-413


                                       May 10, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

       Appellant-Defendant, Seth T. Lipscomb (Lipscomb), appeals his conviction for

resisting law enforcement, a Class A misdemeanor, Ind. Code § 35-44-3-3; and theft, a

Class D felony, I.C. §35-43-4-2(a)

       We affirm.

                                         ISSUES

       Lispcomb raises three issues on appeal, which we restate as follows:

   (1) Whether the trial court abused its discretion when it admitted the testimonial

       evidence of the police officer after he requested Lipscomb’s identification;

   (2) Whether the trial court abused its discretion when it instructed the jury that a

       private citizen may not flee from a lawful or unlawful arrest; and

   (3) Whether the State presented sufficient evidence beyond a reasonable doubt to

       sustain Lipscomb’s convictions.

                        FACTS AND PROCEDURAL HISTORY

       In the late afternoon on May 14, 2010, Megan Weldy (Weldy) was working as a

cashier at Martin’s Supermarket in St. Joseph County, Indiana. She noticed a male, later

identified as Lipscomb, dressed in a dark baseball hat, a hooded sweatshirt, and dark

pants, exit the store while “holding one of his sides kind of funny” as if trying to conceal

an item. (Transcript p. 9). She notified the store’s manager, Thomas Slott (Slott). Slott

reviewed the store’s security surveillance videos which showed Lipscomb and a friend

hiding two bottles of liquor. The video reflected that Lipscomb exited the store without



                                             2
paying for the items. Slott ran an inventory check in the liquor aisle and confirmed that

two bottles were missing.

       At 6 p.m. that day, Slott informed St. Joseph County Sheriff’s Department officer

Richard Croymans (Officer Croymans), who worked security part-time for Martin’s

Supermarket, of the incident. Officer Croymans reviewed the surveillance video and

completed a police report. A few hours later, while Officer Croymans was watching live

surveillance footage of the store, he noticed Lipscomb, wearing the same outfit and

accompanied by the same friend, enter the Supermarket again.              Officer Croymans

informed Slott and they both followed Lipscomb outside.

       Outside the store, Officer Croymans identified himself as a police officer, using

his police identification and badge. He informed Lipscomb that he was an officer with

the sheriff’s department and asked for Lipscomb’s identification. Lipscomb responded

that he did not do anything wrong and refused to show his identification.             Officer

Croymans told him: “I’m not accusing you of anything but I do have you on tape from

an earlier theft, and I need to gather your identification so I can complete a police report.”

(Tr. p. 32). Lipscomb became defiant, stating “I haven’t done anything, I ain’t done shit,

you have no right to see my ID.” (Tr. p. 32). Lipscomb then lifted his shirt and turned

away. As he started walking across the parking lot, Officer Croymans yelled “stop,

police[.]” (Tr. p. 32). Lipscomb did not stop. In an attempt to prevent Lipscomb from

leaving, Officer Croymans placed his arm on him, but as Lipscomb spun away, he struck

Officer Croymans in the jaw with a closed fist. Officer Croymans contacted dispatch and

requested assistance. As Lipscomb ran away, a chase ensued. Another officer pulled his


                                              3
vehicle in front of Lipscomb, stopping him. Because Lipscomb did not comply with

orders to place his hands behind his back, he was tasered.

          On May 15, 2010, the State filed an Information charging Lipscomb with Count I,

battery on a law enforcement officer, a Class D felony, I.C. §35-42-2-1(a) and Count II,

resisting law enforcement, a Class A misdemeanor, I.C. § 35-44-3-3. On August 19,

2010, the State amended the Information by adding Count III, theft, a Class D felony, I.C.

§ 35-43-4-2(a). That same day, Lipscomb filed a motion to suppress evidence that was

obtained after Officer Croymans stopped Lipscomb.                 On October 12, 2010, after a

hearing, the trial court denied the motion. On January 27, 2011, a jury trial was held. At

the close of the evidence, the jury found Lipscomb guilty of resisting law enforcement

and theft but not guilty of battery on a law enforcement officer. On August 25, 2011, the

trial court sentenced Lipscomb to one year executed on resisting law enforcement and

one and one-half years executed on theft, both sentences to be served concurrently.

          Lipscomb now appeals. Additional facts will be provided as necessary.

                                  DISCUSSION AND DECISION

                                      I. Admission of Evidence

          Lipscomb contends that the trial court erred by denying his motion to suppress

because under the totality of the circumstances Officer Croymans’ stop of Lipscomb was

unreasonable and violated Article I, § 11 of the Indiana Constitution1. However, because

Lipscomb did not seek an interlocutory appeal after the trial court’s denial of his motion

to suppress but rather proceeded to trial, the issue is more properly phrased as whether

1
    Lipscomb does not make an argument under the Fourth Amendment of the United States Constitution.


                                                   4
the trial court abused its discretion by admitting Officer Croymans’ testimonial evidence

at trial. See Washington v. State, 784 N.E.2d 584, 586 (Ind. Ct. App. 2003).

       We review a trial court’s decision to admit or exclude evidence for an abuse of

discretion. Stringer v. State, 853 N.E.2d 543, 546 (Ind. Ct. App. 2006). An abuse of

discretion occurs where the trial court’s decision is clearly against the logic and effect of

the facts and circumstances before the court. Id. However, if a trial court abused its

discretion by admitting the challenged evidence, we will only reverse for that error if the

error is inconsistent with substantial justice or if a substantial right of the party is

affected. Id.

       The purpose of Article I, § 11 of the Indiana Constitution is to “protect from

unreasonable police activity, those areas of life that Hoosiers regard as private.” Brown

v. State, 653 N.E.2d 77, 79 (Ind. 1995). Our state provision tracks the language of the

Fourth Amendment to the United States Constitution verbatim. Litchfield v. State, 824

N.E.2d 356, 359 (Ind. 2005). However, the legality of a governmental intrusion under

the Indiana Constitution turns on an evaluation of the reasonableness of the police

conduct under the totality of the circumstances.       Id. Although there may be other

relevant considerations under the circumstances, the reasonableness of a search or seizure

turns on a balancing of the following: (1) the degree of concern, suspicion, or knowledge

that a violation has occurred; (2) the degree of intrusion the method of the search or

seizure imposes on the citizen’s ordinary activities; and (3) the extent of law enforcement

needs. Id. at 361. The burden is on the State to show that under the totality of the




                                             5
circumstances, the police intrusion was reasonable. Trotter v. State, 933 N.E.2d 572, 580

(Ind. Ct. App. 2010).

       We find that Officer Croymans’ actions were reasonable under the totality of the

circumstances test. The degree of suspicion was high because Officer Croymans had

recognized Lipscomb as the individual who had taken two bottles of liquor from the store

without paying for it earlier in the day. The degree of intrusion was minimal. Officer

Croymans followed Lispcomb outside, identified himself as a police officer, and

requested to see Lipscomb’s identification as part of an ongoing investigation in the theft.

The degree of intrusion only increased after Lipscomb escalated the encounter by

refusing to show his ID and by walking away. Finally, the extent of law enforcement

needs was high as Officer Croymans was investigating a theft, had the suspect in front of

him, and needed the suspect’s name before he fled in order to officially charge him. In

sum, we conclude that the trial court did not abuse its discretion when it admitted Officer

Croymans’ testimony recounting the events after he stopped Lipscomb.

                                    II. Jury Instruction

       Next, Lipscomb argues that the trial court abused its discretion by instructing the

jury that a private citizen may not flee from a lawful or unlawful arrest. He maintains

that this instruction was a misstatement of the law and improperly focused the jury’s

attention on one particular aspect of the evidence.

       It is well established that instructing the jury is within the discretion of the trial

court. Perez v. State, 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans. denied. Jury

instructions are to be considered as a whole and in reference to each other; error in a


                                             6
particular instruction will not result in reversal unless the entire jury charge misleads the

jury as to the law in the case. Id. The purpose of an instruction is to inform the jury of

the law applicable to the facts without misleading the jury and to enable it to comprehend

the case clearly and arrive at a just, fair, and correct verdict. Hoover v. State, 918 N.E.2d

724, 731 (Ind. Ct. App. 2009), trans. denied. When a trial court gives or refuses a

tendered instruction, we consider whether the instruction: (1) correctly states the law, (2)

is supported by the evidence in the record, and (3) is covered in substance by other

instructions. Id. at 732. We will review the instruction de novo if the challenge is that it

incorrectly states the law. Id. However, if the challenge is that the instruction is not

supported by the evidence in the record or that the substance is not covered by other

instructions, we will reverse only if the trial court has abused its discretion. Id.

       Here, the trial court instructed the jury that

       [a] private citizen may not flee in resisting a peaceful arrest by an
       individual who he knows or has reason to know is a police officer
       performing his duties regardless of whether the arrest in question is lawful
       or unlawful.

(Appellant’s App. p. 31). In Cole v. State, 878 N.E.2d 882, 886 (Ind. Ct. App. 2007), we

noted that “it is well settled that in Indiana, an individual may not flee from a police

officer who has ordered the person to stop, regardless of the apparent or ultimate

lawfulness of the officer’s order.” Expounding on the rule’s rationale, we stated that

“[b]ecause of the danger flight poses and the fact that a defendant has judicial remedies if

he does not flee, the rule in our State is that even if a police officer does not have

reasonable suspicion to stop a defendant, the defendant has no right to flee when the



                                               7
officer orders him to stop.” Id. In light of Cole, the tendered jury instruction was a

correct statement of the law.

       Furthermore, we disagree with Lipscomb who maintains that the instruction

unduly emphasizes a particular piece of evidence and thus encroached on the duties of the

jury and eased State’s burden of proving each element of the offense. In particular,

Lipscomb claims that the instruction relieved the State from proving that he knowingly

fled from a law enforcement officer and implied that he was under arrest, even though

that contradicted Officer Croymans’ testimony.

       Our review of the tendered jury instructions reveals that the trial court fully

instructed the jury on the charges, as well as on the separate elements for each offense

which the State was required to prove beyond a reasonable doubt. Only after giving these

instructions, did the trial court proceed with tendering the disputed instruction. Reading

the instructions as a whole, we conclude that the jury was apprised of the law applicable

to the facts and was not misled. Therefore, we find that the trial court did not abuse its

discretion by tendering the jury instruction.

                                III. Sufficiency of the Evidence

       Lastly, Lipscomb contends that the State failed to present sufficient evidence

beyond a reasonable doubt to convict him of resisting law enforcement and theft. In

reviewing a sufficiency of the evidence claim, this court does not reweigh the evidence or

judge the credibility of the witnesses. Perez v. State, 872 N.E.2d 208, 212-23 (Ind. Ct.

App. 2007), trans. denied. We will consider only the evidence most favorable to the

verdict and the reasonable inferences to be drawn therefrom and will affirm if the


                                                8
evidence and those inferences constitute substantial evidence of probative value to

support the judgment. Id. at 213. Reversal is appropriate only when reasonable persons

would not be able to form inferences as to each material element of the offense. Id.

                                A. Resisting Law Enforcement

       In order to convict Lipscomb of resisting law enforcement, the State was required

to establish beyond a reasonable doubt that Lipscomb knowingly or intentionally fled

from a law enforcement officer after the officer identified himself by visible or audible

means and ordered the person to stop. See I.C. § 35-44-3-3. Focusing on the nature of

Officer Croymans’ actions, Lipscomb asserts that Officer Croymans was not lawfully

engaged in the execution of his official duties as a law enforcement officer at the moment

Lipscomb resisted his arrest.

       In a factually analogous case, Tapp v. State, 406 N.E.2d 296, 297 (Ind. Ct. App.

1980), reh’g denied, we addressed, as an issue of first impression, whether an off-duty

police officer, who was working as a plainclothes security guard at a store, was acting in

his official duty when he arrested a suspected shoplifter. In Tapp, the officer observed

the defendant shoplift an item, followed the defendant outside the store where he

identified himself as a police officer and tried to arrest the defendant. Id. Tapp resisted

arrest. Id. We held that the police officer was acting within his official duties despite

being off-duty and being employed as a security guard for a private entity. Id. at 302.

After analyzing the statutory language and out-of-state case-law, we reasoned that

       [i]t is the nature of the acts performed and not whether the officer is on or
       off duty, in or out of uniform, which determines whether the officer is
       engaged in the performance of his official duties. We hold therefore, that


                                             9
       the [S]tate proved that [the officer] was a law enforcement officer engaged
       in the performance of his official duty . . . when it proved that he was an
       Evansville police officer, displayed his police badge and announced his
       status to [] Tapp, and informed him that she was under arrest pursuant to
       the law of this state even though he was off duty, out of uniform, and
       employed as a security guard by a private employer.

Id.

       Likewise here, we reach a similar result. During trial, Officer Croymans testified

that, while he was off-duty and working as a part-time private security guard, he was

investigating a theft. When he approached Lipscomb outside the store, Officer Croymans

“identified [himself] as a police officer using [his] police identification and badge, told

[Lipscomb] that [he] was a police officer with the sheriff’s department and wanted to see

his identification.” (Tr. pp. 31-32). After Lipscomb became defiant and started to walk

away, Officer Croymans yelled “stop, police[.]”          (Tr. p. 32).    Based on these

circumstances, we conclude that the State proved beyond a reasonable doubt that Officer

Croymans was a law enforcement officer engaged in the performance of his official

duties for the purpose of I.C. § 35-44-3-3.

                                         B. Theft

       To convict Lipscomb of theft, the State was required to establish beyond a

reasonable doubt that Lipscomb did knowingly or intentionally exert unauthorized

control over two bottles of alcohol of Martin’s Supermarket, with intent to deprive the

store of any part of its value or use. See I.C. § 35-43-4-2. Lipscomb now argues that

“[n]o person positively identified Lipscomb as the person depicted on the surveillance

video.” (Appellant’s Br. p. 10).



                                              10
       The record indicates that when he reported for work at Martin’s Supermarket,

Officer Croymans was notified of a theft and reviewed the surveillance video which had

captured a male stealing two bottles of alcohol. This individual was dressed in a dark

baseball hat, a hooded sweatshirt, and dark pants and was accompanied by a friend. A

few hours later, while Officer Croymans was watching live surveillance footage of the

store, he noticed Lipscomb, while wearing the same outfit as the individual who had

previously stolen the alcohol and accompanied by the same friend, enter the Supermarket

again. When he confronted Lipscomb, Lipscomb lifted his shirt as to indicate that he had

nothing to hide. Based on this evidence, we conclude that the jury could reasonably infer

that Lipscomb was the individual who had committed the theft.              We affirm his

conviction.

                                     CONCLUSION

       Based on the foregoing, we conclude that (1) the trial court properly admitted the

evidence obtained by Officer Croymans after he requested Lipscomb for identification;

(2) the trial court properly instructed the jury that a private citizen may not flee from a

lawful or unlawful arrest; and (3) the State presented sufficient evidence beyond a

reasonable doubt to sustain Lipscomb’s convictions.

       Affirmed.

NAJAM, J. and DARDEN, J. concur




                                            11
