MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Aug 23 2019, 7:30 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
A. David Hutson                                          Curtis T. Hill, Jr.
Hutson Legal                                             Attorney General of Indiana
Jeffersonville, Indiana
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jarvis Peele,                                            August 23, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-781
        v.                                               Appeal from the Clark Circuit
                                                         Court
State of Indiana,                                        The Honorable Bradley B. Jacobs,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         10C02-1705-F6-915



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019                   Page 1 of 14
[1]   Jarvis Peele appeals his convictions for Level 6 Felony Possession of

      Methamphetamine,1 two counts of Level 2 Felony Unlawful Possession of a

      Legend Drug,2 Level 6 Felony Criminal Confinement,3 Class A Misdemeanor

      Resisting Law Enforcement,4 and Class B Misdemeanor Possession of

      Marijuana.5 He raises the following arguments: (1) the trial court erroneously

      denied his motion for discharge following a speedy trial request; (2) the trial

      court erroneously admitted certain evidence; and (3) there is insufficient

      evidence supporting his conviction for resisting law enforcement. Finding that

      the evidence is insufficient to support his conviction for resisting law

      enforcement and finding no other reversible error, we affirm in part, reverse in

      part, and remand with instructions to vacate Peele’s resisting law enforcement

      conviction and to amend his sentencing order to reflect that change.


                                                     Facts
[2]   On May 6, 2017, Clarksville Police Officer Brittany Allen observed a green

      Ford Focus change lanes to the left lane in front of Officer Allen’s vehicle

      without signaling or yielding the right-of-way to Officer Allen’s vehicle. While

      stopped in traffic, Officer Allen conducted a search using the number from the




      1
          Ind. Code § 35-48-4-6.1(a).
      2
          Ind. Code § 16-42-19-13.
      3
          Ind. Code § 35-42-3-3(a).
      4
          Ind. Code § 35-44.1-3-1(a)(1).
      5
          I.C. § 35-48-4-11(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 2 of 14
      temporary registration affixed to the Ford Focus. The search revealed that the

      temporary registration was registered to a 2002 Kia.


[3]   The Ford Focus and Officer Allen continued driving. Officer Allen intended to

      make a traffic stop, but the driver of the Ford Focus, later identified as Peele,

      stomped on the brakes suddenly and turned left without using a turn signal.

      Officer Allen activated her emergency lights to conduct a traffic stop. Peele

      slowed down but did not stop; at one point, he failed to stop at a stop sign.

      Officer Allen activated her vehicle’s siren at that point. Peele continued

      driving, disregarding several more stop signs. As the Ford Focus slowed down

      slightly to turn, Officer Allen saw the vehicle’s rear passenger door open. A

      woman, later identified as Melissa Pollard, jumped out of the vehicle. Peele

      continued driving and ran over Pollard’s ankle.


[4]   As Peele drove his vehicle on the wrong side of the road, the vehicle ran over a

      curb and got stuck in a grassy area, finally coming to a stop. Officer Allen

      stopped and exited her vehicle, drawing her weapon because she concluded it

      was a high risk stop. She commanded Peele to show his hands, get on the

      ground, and stay still, but Peele refused to comply. He reached under the

      driver’s seat with his right hand, staring at Officer Allen and ignoring her

      commands to stop reaching under the seat. He slowly brought his hand out and

      put it in his waistband. She again told him to show his hands and get on the

      ground, but he did not comply. Instead, he again reached under his seat. He

      removed his hand from the seat and began to walk away from the Ford Focus.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 3 of 14
[5]   Officer Allen was eventually able to determine that Peele did not have anything

      in his hands, so she holstered her gun and drew her Taser instead. Peele

      continued to ignore the officer’s commands to stop moving. She discharged her

      Taser; as she did so, Peele dipped his head and turned to look at her, and the

      Taser struck Peele in the forehead. Once the Taser completed its cycle, Officer

      Allen again ordered Peele to show his hands. He refused, instead moving his

      hands around underneath his body. She reactivated the Taser and, after it had

      completed another cycle, again ordered him to show his hands. He finally

      complied and was handcuffed by another officer.


[6]   During a search of Peele incident to arrest, the arresting officer found a baggie

      in his waistband that contained a substance later determined to be bath salts.

      Officers also searched Peele’s vehicle and found substances later determined to

      be methamphetamine, marijuana, ethypentylone, alprazolam, and

      buprenorphine.


[7]   On May 9, 2017, the State charged Peele with Level 6 felony possession of

      methamphetamine, two counts of Level 6 felony unlawful possession of a

      legend drug, Class A misdemeanor resisting law enforcement, and Class B

      misdemeanor possession of marijuana. It later added an allegation that Peele

      was an habitual offender.


[8]   On November 21, 2018, Peele fired his public defender and demanded a speedy

      trial; therefore, the seventy-day period set forth by Criminal Rule 4 would

      elapse on January 30, 2019. The trial court set his trial date for December 18,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 4 of 14
       2018.6 On December 18, 2018, the trial court entered a minute entry on the

       Chronological Case Summary (CCS) stating that “[t]he Court enters a

       congested docket due to a jury trial called” in another case against Peele.

       Appellant’s App. Vol. II p. 12. On January 10, 2019—still within the seventy-

       day window—the trial court scheduled this case for trial on February 19, 2019.

       Peele objected to that trial date; the trial court overruled the objection. Peele

       later filed a pro se “Writ of Habeas Corpus,” which the trial court and the State

       treated as a motion to discharge. The trial court denied the request.


[9]    Peele’s trial took place on February 19, 2019. The jury found him guilty as

       charged and the trial court later found him to be an habitual offender. On

       March 12, 2019, the trial court sentenced Peele to an aggregate term of six years

       imprisonment, to be served consecutively with his sentence in another cause.

       Peele now appeals.


                                        Discussion and Decision
                                                 I. Speedy Trial
[10]   Peele first argues that the trial court erroneously denied his request for discharge

       (styled as a “Writ of Habeas Corpus”) after his trial was scheduled outside the

       seventy-day window set forth in Criminal Rule 4.




       6
           The same day, Peele also demanded speedy trials in two other, unrelated criminal causes.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019                 Page 5 of 14
[11]   Criminal Rule 4(B)(1) states that if any defendant held in jail requests an early

       trial,


                he shall be discharged if not brought to trial within seventy (70)
                calendar days from the date of such motion, except where a
                continuance within said period is had on his motion, or the delay
                is otherwise caused by his act, or where there was not sufficient
                time to try him during such seventy (70) calendar days because of
                the congestion of the court calendar. . . . Any continuance
                granted due to a congested calendar or emergency shall be
                reduced to an order, which order shall also set the case for trial
                within a reasonable time.


       In this case, the trial court continued the original trial date because of court

       congestion. Peele does not challenge the legitimacy of the trial court’s finding

       of congestion. Instead, he argues that the trial court erred because, upon

       continuing the trial due to congestion, the trial court did not simultaneously

       issue an order scheduling the new trial date.


[12]   Peele made his speedy trial demand on November 21, 2018. Therefore, the

       seventy-day clock would expire on January 30, 2019. Peele’s trial was

       originally scheduled for December 18, 2018. On that date, the trial court

       scheduled a minute entry indicating that the trial would be postponed because

       of court congestion. Although the trial court did not set a new date at that time,

       it issued an order on January 10, 2019—approximately three weeks later—

       scheduling the case for trial on February 19, 2019.


[13]   It may be that, technically speaking, Criminal Rule 4(B)(1) requires that if the

       trial court continues a trial due to court congestion, it must simultaneously set

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 6 of 14
       the case for trial within a reasonable time,7 and we would encourage trial courts

       to abide by this portion of the rule. But in this case, we find that the

       approximate three-week delay between the finding of congestion and the setting

       of the new trial date is not unreasonable. Bolstering that conclusion is the fact

       that Peele does not argue that, had the new trial date been set in a timely

       fashion, there was an open and available setting for his trial before the seventy-

       day window closed. Therefore, we find that any violation of Criminal Rule

       4(B)(1) was harmless and did not prejudice Peele. We decline to reverse on this

       basis.


                                   II. Admission of Evidence
[14]   Next, Peele argues that the trial court erroneously admitted the deposition of a

       forensic scientist and statements made by Pollard to Officer Allen into evidence.

       According to Peele, the admission of this evidence violated his rights under the

       Confrontation Clause of the Sixth Amendment to the United States

       Constitution.


[15]   We will reverse a trial court’s ruling on the admissibility of evidence only if the

       decision is clearly against the logic and effect of the facts and circumstances or

       when the trial court has misinterpreted the law. J.K. v. State, 8 N.E.3d 222, 228

       (Ind. Ct. App. 2014). But when a defendant claims that a constitutional




       7
        Peele does not argue that the rescheduled trial date, which was a mere twenty days past the seventy-day
       window, was unreasonable.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019                  Page 7 of 14
       violation has resulted from the admission of evidence, the standard of review is

       de novo. Carr v. State, 106 N.E.3d 546, 552 (Ind. Ct. App. 2018), trans. denied.


[16]   The Sixth Amendment to the United States Constitution provides that “[i]n all

       criminal prosecutions, the accused shall enjoy the right . . . to be confronted

       with the witnesses against him.” This amendment prohibits the “admission of

       testimonial statements of a witness who did not appear at trial unless he was

       unavailable to testify, and the defendant had had a prior opportunity for cross-

       examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).


                                             A. Deposition
[17]   On February 7, 2019, the State filed a motion for leave to take the deposition of

       forensic scientist Rebecca Nickless in lieu of live testimony. The trial court held

       a hearing on the motion, and at the hearing, the State informed the trial court

       that Nickless would be out of state during the scheduled trial date and would,

       therefore, be unavailable for live testimony. Peele, who was pro se at the time,

       told the trial court that he had no objection to the State’s request.

       Consequently, the State deposed Nickless on February 11, 2019, in the

       courtroom. Peele was present and, by that time, represented by a public

       defender, who was able to cross-examine Nickless. Then, when the State

       introduced Nickless’s deposition at trial, Peele’s attorney objected, arguing that

       there was no evidence that Nickless was unavailable.


[18]   Because Peele assented to the deposition of Nickless in lieu of live testimony, he

       invited any error that occurred. See C.T. v. Marion Cty. Dep’t of Child Servs., 896

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 8 of 14
       N.E.2d 571, 588 (Ind. Ct. App. 2008) (holding that the doctrine of invited error

       provides that a party may not take advantage of an error that he commits,

       invites, or which is the natural consequence of his own neglect). Moreover,

       Peele demonstrated that he understood what depositions were, he knew that he

       would have the chance to cross-examine Nickless, and he knew that he would

       be able to object during the deposition. See Evans v. State, 809 N.E.2d 338, 344

       (Ind. Ct. App. 2004) (holding that pro se litigants are held to the same legal

       standards as licensed attorneys). Invited error is not reviewable on appeal.

       C.T., 896 N.E.2d at 588; see also Lane v. State, 997 N.E.2d 83, 93 (Ind. Ct. App.

       2013) (noting that a defendant can waive his Sixth Amendment right to

       confront witnesses). Indeed, it would be unfair for Peele to have informed the

       State and the trial court that he did not object to the admission of Nickless’s

       deposition into evidence and then be allowed to ambush the State at trial with

       an objection to that same deposition.


[19]   Furthermore, Peele—who was represented by counsel during the deposition—

       had the opportunity to, and did, cross-examine Nickless, and both he and his

       attorney were aware that the State intended to introduce the deposition at his

       trial. Tr. Ex. Vol. p. 15-42. Under these circumstances, we find no

       constitutional violation occurred when the trial court admitted the deposition

       into evidence.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 9 of 14
                                     B. Pollard’s Statements
[20]   Next, Peele directs our attention to portions of Officer Allen’s testimony.

       Specifically, Officer Allen testified that Pollard told the officer that “she was in

       the vehicle and when [Officer Allen] initiated [her] overhead lights and siren,

       she told [Peele] to stop . . . for me to pull over . . . . [S]he told [Officer Allen]

       she had said that multiple times.” Tr. Vol. I p. 190. Pollard also told Officer

       Allen that Peele had told her, “no, I’m not stopping, we all have warrants,” and

       that afterwards, Pollard decided to jump out of the vehicle. Id. Although

       Pollard was subpoenaed to testify at the trial, she did not appear and did not

       testify.


[21]   Peele argues that by allowing Officer Allen to testify about Pollard’s statements,

       the trial court violated his rights under the Confrontation Clause. He did not,

       however, object at trial to this testimony. As a result, he must show that its

       admission constituted fundamental error. A fundamental error is a blatant

       violation of basic principles that causes substantial harm and deprives the

       defendant of fundamental due process. Benson v. State, 762 N.E.2d 748, 755

       (Ind. 2002). Put another way, the error must have been so egregious that the

       trial court was required to raise the issue on its own. Id.


[22]   Even if we were to agree solely for argument’s sake that the admission of this

       evidence was erroneous, we would find that the error was not fundamental.

       Peele argues that this testimony is the only evidence supporting his conviction




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 10 of 14
       for criminal confinement and that without it, that conviction would have to be

       overturned. We disagree.


[23]   To convict Peele of Level 6 felony criminal confinement, the State was required

       to prove beyond a reasonable doubt that Peele knowingly or intentionally

       confined Pollard without her consent. I.C. § 35-42-3-3(a). Aside from Pollard’s

       statements, Officer Allen testified about her observations. Specifically, she

       testified that she saw Pollard jump out of a vehicle that was traveling at

       approximately twenty miles per hour and that Peele then drove over Pollard’s

       ankle. A reasonable factfinder could infer from this evidence that Pollard

       wanted to exit the vehicle, Peele was not taking any steps to facilitate a safe

       exit, and Pollard was being confined to the vehicle against her will. In other

       words, even without the brief statements that Pollard made to Officer Allen,

       there is sufficient evidence supporting the confinement conviction. Therefore,

       even if the admission of those statements was erroneous, the error was harmless

       given the other evidence in the record.


                                            III. Sufficiency
[24]   Finally, Peele argues that there is insufficient evidence supporting his

       conviction for Class A misdemeanor resisting law enforcement. When

       reviewing the sufficiency of the evidence to support a conviction, we must

       consider only the probative evidence and reasonable inferences supporting the

       conviction and will neither assess witness credibility nor reweigh the evidence.

       Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm unless no


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 11 of 14
       reasonable factfinder could find the elements of the crime proved beyond a

       reasonable doubt. Id.


[25]   Because of the phrasing of the charging information in this case, to convict

       Peele of Class A misdemeanor resisting law enforcement, the State was

       required to prove beyond a reasonable doubt that Peele forcibly resisted,

       obstructed, or interfered with a law enforcement officer while the officer was

       lawfully engaged in the execution of the officer’s duties. I.C. § 35-44.1-3-

       1(a)(1). For unknown reasons, the State did not charge Peele with resisting law

       enforcement based on his flight from Officer Allen after she activated her lights

       and siren. I.C. § 35-44.1-3-1(a)(3). Therefore, resisting by flight is not at issue

       in this appeal.


[26]   The State’s theory of the case was that Peele resisted Officer Allen by refusing

       to obey her commands to show his hands. But our Supreme Court has held

       that a defendant’s failure to present his hands for handcuffing—absent the use

       of force—does not constitute resisting law enforcement. Graham v. State, 903

       N.E.2d 963, 965-66 (Ind. 2009) (reversing a resisting conviction where

       defendant refused requests to put his hands up and then refused to present

       officers his hands for handcuffing).


[27]   In this case, while Peele refused multiple commands to show his hands and had

       to be tased twice before complying with Officer Allen, there is no evidence

       whatsoever that he used any force against the officer. The fact that Peele

       walked away does not support the conviction. See Spangler v. State, 607 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 12 of 14
       720, 724-25 (Ind. 1993) (reversing a resisting conviction where the defendant

       walked away from a police officer). Moreover, the mere fact that Peele moved

       his hands around in the vehicle and then underneath his body does not support

       the conviction. See Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind. Ct. App. 1998)

       (reversing a resisting conviction where police officer tried to take a flag from

       Ajabu and he held onto the flag, twisting and turning it, and had to be dragged

       for eight to ten feet before letting it go because, while there was “some

       resistance,” there was no evidence that the defendant had “acted forcibly”).


[28]   On appeal, the State makes the novel argument that, because Peele maintained

       constant eye contact with Officer Allen while reaching into the vehicle, a

       factfinder could infer that Peele was making “a visual showing of strength and a

       threat of violence” that would support a resisting conviction. Pogue v. State, 937

       N.E.2d 1253, 1258 (Ind. Ct. App. 2010). We simply cannot conclude that the

       act of maintaining eye contact can elevate a defendant’s actions to forcible

       resistance.


[29]   We do not disagree that Peele’s actions were menacing, nor do we question

       Officer Allen’s precautionary measures of drawing her weapon and deploying

       her Taser. But the fact that a law enforcement officer was reasonably worried

       about the possibility that a suspect had a weapon does not automatically mean

       that the suspect was guilty of resisting law enforcement. Here, there is simply

       no evidence that Peele forcibly resisted, obstructed, or interfered with Officer

       Allen’s investigation. Therefore, we reverse his conviction for Class A

       misdemeanor resisting law enforcement.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 13 of 14
[30]   The judgment of the trial court is affirmed in part, reversed in part, and

       remanded with instructions to (1) vacate the resisting law enforcement

       conviction and (2) amend his sentencing order to reflect the change.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019   Page 14 of 14
