MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be
                                                                  Jul 30 2019, 6:41 am
regarded as precedent or cited before any
court except for the purpose of establishing                           CLERK
                                                                   Indiana Supreme Court
the defense of res judicata, collateral                               Court of Appeals
                                                                        and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                    Curtis T. Hill, Jr.
Appellate Division                                        Attorney General of Indiana
Office of the Public Defender                             Caroline G. Templeton
Crown Point, Indiana                                      Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gina Marie Simari,                                        July 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2917
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Samuel L. Cappas,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          45G04-1711-F5-108



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019              Page 1 of 14
[1]   Gina Marie Simari appeals her convictions for battery resulting in bodily injury

      to a public safety officer as a level 5 felony and resisting law enforcement as a

      class A misdemeanor. She raises three issues which we revise and restate as

      whether the trial court committed fundamental error in admitting certain

      evidence, whether the evidence is sufficient to sustain her convictions, and

      whether the court violated double jeopardy principles by failing to vacate her

      conviction for resisting law enforcement as a level 6 felony. The State raises

      one issue which we revise and restate as whether the court erred by merging her

      conviction for resisting law enforcement as a level 6 felony into her conviction

      for battery resulting in bodily injury to a public safety officer as a level 5 felony.

      We affirm in part, reverse in part, and remand.


                                      Facts and Procedural History

[2]   On November 26, 2017, Mauri Lamanuzzi’s dog was barking, and she looked

      outside and noticed a male she did not know exit her garage. Lamanuzzi called

      her boyfriend, Avery Shepard. Shepard and his brother Elijah arrived, and

      Shepard went next door to a party and entered into an altercation with the men

      in the yard. Elijah joined in the altercation when it moved to an alley. At that

      point, there were four people in the alley fighting. The people next door got

      “the best of” Shepard and Elijah and went onto Lamanuzzi’s property, and she

      called 911. Id. at 195. At some point, Shepard, Elijah, Simari, and Simari’s

      boyfriend went to Lamanuzzi’s back door. Lamanuzzi saw fighting and

      observed Simari throw Lamanuzzi’s CDs, which had been in the center console

      of her vehicle, at her back door as well as a beer bottle.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 2 of 14
[3]   Munster Police Officer Kenneth Hass responded to a dispatch regarding a

      disturbance. When he first arrived at the scene, Officer Hass observed Simari

      walking toward him from “between the two addresses” and asked her where the

      disturbance was, but she said she did not know. Transcript Volume III at 22.

      He proceeded to the backyard “because the call note said the disturbance was

      between neighbors.” Id. at 21. He verified in the backyard there was “an actual

      physical disturbance.” Id. After meeting with other officers and trying to figure

      out what happened, he went back to obtain a statement from Simari because he

      had noticed she had a black eye which looked fresh. He asked her what

      happened, she started yelling at her neighbors, and he “had to step in between

      the two parties, so it would not get physical again.” Id. at 24. He guided her by

      her shoulders to the front yard, and “[r]ight in the front yard she proceeded to

      take off in a dead sprint away from” him. Id.


[4]   He “yelled, ‘Police, stop,’ because [he] was trying to investigate a battery.” Id.

      at 25. He chased her and observed her throw an object from the front of her

      body. Simari fell due to her intoxication, and Officer Hass put his knee in her

      back to detain her to figure out what exactly happened and place her in cuffs,

      but she wiggled out from under him and punched him in the left side of his jaw.

      He radioed for backup and said to Simari, “Give me your hands. Give me your

      hands. You’re being detained.” Id. at 26. He smelled alcohol, and Simari kept

      saying: “F--- you, you mother – f-----.” Id. at 27.


[5]   Officer Hass requested an ambulance and tried to place her in his squad car

      because she stated that she had broken ribs from a previous altercation and his

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 3 of 14
      placing his knee in her back hurt. She would not willingly enter the back seat of

      the squad car and crouched down between the floorboard and the door where

      the officers could not sit her up properly. Officer Hass attempted to buckle her

      in for her safety, she was “nipping,” and he stated: “Don’t f------ bite me. You’ll

      regret it.” 1 Id. at 29. She then bit his right bicep. Officer Hass transported

      Simari to the police department while she cussed and kicked.


[6]   On November 27, 2017, the State charged Simari with: Count I, battery

      resulting in bodily injury to a public safety officer as a level 5 felony; Count II,

      resisting law enforcement as a level 6 felony; Count III, resisting law

      enforcement as a class A misdemeanor; and Count IV, theft as a class A

      misdemeanor. 2


[7]   In June 2018, the court held a jury trial. In his opening statement, the

      prosecutor stated: “At the conclusion of the evidence we’re going to ask you to

      find her guilty of battery on a law enforcement and [sic] causing pain and injury

      to him, for biting him in the arm, for resisting law enforcement when Miss

      Simari punched him in the face.” Transcript Volume II at 167. The State

      presented the testimony of witnesses including Lamanuzzi, Shepard, Officer

      Hass, and other officers.




      1
       When asked what he meant by his statement, Officer Hass answered that there would be additional charges
      and that he was not indicating that he was going to retaliate physically.
      2
        Count II alleged in part that Simari “inflicted bodily injury on or otherwise caused bodily injury to Kenneth
      Hass . . . .” Appellant’s Appendix Volume II at 12. Count III alleged in part that Simari knowingly fled
      from Officer Hass.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019                      Page 4 of 14
[8]   In his closing argument, the prosecutor stated:


              Because the State of Indiana, we have to prove every element of
              that crime or it’s not guilty for that charge. You have to prove
              every element.

              And the State of Indiana, State’s case is TFFB. Now, you
              probably never heard of that before because I made it up. But it
              stands for this: Theft, flight, which is the resisting, fight, resisting
              at the other end by physical force, and bite. So we have theft,
              flight, fight and bite. Basically, what all our charges are about,
              and that’s what we heard evidence about.

              I’m going to give you a little road map to make easier [sic] to
              make a decision. I’m just helping you make your decision based
              on what evidence you believed or what evidence you didn’t
              believe.

              I’m going to start with the highest count in this case. That’s the
              Level 5 felony. Right? And it says that the State of Indiana has
              to prove that a law enforcement officer, during the course of his
              duty, was injured. Right?

              So what did we have – who told us that? Well, we had Officer
              Hass testified that he was bitten by the defendant when he tried
              to place her in the car. You also had other officers testify that
              they saw that bite. I think it was retired Sergeant Newton, and
              one was Mr. Blanco testified that he was bitten.

                                                    *****

              Then we have resisting law enforcement. Right? That is going to
              be Count 2. This is the part – this count is the one where you
              have to prove that the Defendant, Miss Simari there, that she
              used physical force, actual physical force against the officers.

              Well, I mean, we had a video, and I think that video speaks for
              itself. You could hear the scuffle. You could see that even
              bringing her back, she was resisting. Even handcuffs, she didn’t
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 5 of 14
              want to stay with him. She tried to break away and did break
              away. Then he caught her again. She was fighting in the squad
              car.

              So she was using physical force to escape him. She wasn’t
              successful, but still the elements of the crime, you heard
              witnesses testifying to it. The State has fulfilled that.


      Transcript Volume III at 195-197.


[9]   The jury found Simari guilty as charged. The court entered judgment of

      conviction for each count. At the sentencing hearing, the court discussed the

      possibility of merging counts and stated:


              The issue is with regard to Counts 1 and 2. Does 2 – is 2
              duplicative or double jeopardy? Does that come into play with
              those two counts? So in order to go through that analysis, we
              have to determine – I went through the elements test, and I find
              that there – the structural elements test, that there are distinct
              counts, but when you go to the actual evidence test, that’s the
              one that is the more tricky of the two. So to determine whether
              the actual – the – is there a reasonable possibility that the jury
              could’ve used the same facts for those two convictions? I looked
              at the charges, of course, the evidence, the jury instructions, and I
              also had to endure relistening to the State’s closing argument.

              The evidence was that Miss Simari is alleged to have punched
              Officer Hass and bitten him. And factually, there could have
              been arguments made that, well, each count – Count 1 and
              Count 2 each allege that Officer Hass received a bodily injury
              when he was engaged in the performance of his duties. One
              being rude, insolent, angry. The other one resulting in bodily
              injury. The State’s closing argument only focuses on the bite that
              Officer Hass sustained during the arrest or cuffing of Miss Simari.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 6 of 14
               There’s no mention made of the punch during the closing
               argument, although it did come out in the testimony.

               So the State – because the State argued the bite, there is a
               reasonable possibility that the jury could have used that actual
               evidence to convict [Simari] of both Count 1 and Count 2 instead
               of separating out the punch goes to Count 1, bite goes to Count
               2, or vice versa, however that would have came.

               So my ruling would be or is that Count 2 gets tossed. Count 1
               remains. So the Defendant would get sentenced on Counts 1, 3
               and 4.


       Transcript Volume IV at 59-60.


[10]   The court found that Count II, resisting law enforcement as a level 6 felony,

       merged into Count I, battery resulting in bodily injury to a public safety officer

       as a level 5 felony. The court sentenced Simari to two years and six months for

       Count I, and concurrent sentences of one year each for Count III, resisting law

       enforcement as a class A misdemeanor, and Count IV, theft as a class A

       misdemeanor.


                                                    Discussion

                                                          I.


[11]   We initially address whether the trial court committed error or fundamental

       error by admitting evidence that Simari struck and bit Officer Hass. Simari

       argues that Officer Hass did not have reasonable suspicion or probable cause

       that criminal activity took place prior to ordering her to stop. She contends that

       the admission of the evidence was fundamental error because she was illegally

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 7 of 14
       seized without probable cause or reasonable suspicion that she had engaged in

       criminal activity under the Fourth Amendment of the United States

       Constitution and Article 1, Section 11 of the Indiana Constitution. The State

       argues that Officer Hass had reasonable suspicion to stop Simari to investigate

       the reported battery and probable cause to arrest her after she ran from him.


[12]   Generally, because the trial court is best able to weigh the evidence and assess

       witness credibility, we review its rulings on admissibility for abuse of discretion

       and reverse only if a ruling is clearly against the logic and effect of the facts and

       circumstances and the error affects a party’s substantial rights. Carpenter v. State,

       18 N.E.3d 998, 1001 (Ind. 2014). The ultimate determination of the

       constitutionality of a search or seizure is a question of law that we consider de

       novo. Id. Failure to timely object to the erroneous admission of evidence at

       trial will procedurally foreclose the raising of such error on appeal unless the

       admission constitutes fundamental error. Stephenson v. State, 29 N.E.3d 111,

       118 (Ind. 2015). Fundamental error is an “extremely narrow exception to the

       waiver rule” where the defendant bears the heavy burden of showing that a fair

       trial was impossible. Harris v. State, 76 N.E.3d 137, 139 (Ind. 2017).


[13]   The Fourth Amendment to the United States Constitution provides that the

       right of the people to be secure in their persons against unreasonable search and

       seizure shall not be violated. U.S. CONST. amend. IV. “At minimum, the

       government’s seizure of a citizen must rest on specific, articulable facts that lead

       an officer to reasonably suspect that criminal activity is afoot.” Gaddie v. State,

       10 N.E.3d 1249, 1253 (Ind. 2014). In Gaddie, the Indiana Supreme Court held

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 8 of 14
       that the “statutory element ‘after the officer has . . . ordered the person to stop’”

       in Ind. Code § 35-44.1-3-1(a)(3), the statute governing resisting law enforcement

       by fleeing, “must be understood to require that such order to stop rest on

       probable cause or reasonable suspicion, that is, specific, articulable facts that

       would lead the officer to reasonably suspect that criminal activity is afoot.” Id.

       at 1255.


[14]   Simari also argues that her rights under Article 1, Section 11 of the Indiana

       Constitution were violated. In evaluating the reasonableness of police conduct

       under Article 1, Section 11 of the Indiana Constitution, a reviewing court

       considers: “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.” Carpenter, 18 N.E.3d at 1002.


[15]   While Simari cites Gaddie, we find that case factually distinguishable. In

       Gaddie, the Court observed that the officer testified that he had responded to

       “just a disturbance” and had not seen the defendant or anyone else commit a

       crime prior to ordering the defendant to stop. 10 N.E.3d at 1255. The Court

       observed that “refusal to cooperate with police must be distinguished from

       unprovoked flight” and that the defendant did not change his behavior when

       the officer appeared and ordered him to stop but merely continued walking. Id.

       at 1256. The Court concluded that the circumstances of the disturbance and the

       officer’s presence did not provide sufficient evidence to prove the element that

       the order to stop was supported by probable cause or reasonable suspicion. Id.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 9 of 14
[16]   The record reveals that Officer Hass relied upon more than the mere existence

       of a report of a disturbance in ordering Simari to stop. He observed Simari

       between the two addresses, verified “an actual physical disturbance,” noticed a

       black eye on Simari which looked fresh, observed Simari yelling at her

       neighbors, and had to step in between the parties “so it would not get physical

       again.” Transcript Volume III at 24. At that point, Officer Hass guided Simari

       by her shoulders to the front yard and, when she sprinted away from him, he

       yelled at her to stop. We conclude that Officer Hass had reasonable suspicion

       to support guiding Simari to the front yard and probable cause once she did not

       comply with his order to stop and that his actions were reasonable. We cannot

       say that the admission of the evidence of Simari’s conduct of biting and

       punching Officer Hass constituted fundamental error. See Brown v. State, 929

       N.E.2d 204, 207-208 (Ind. 2010) (holding that the claimed error did not rise to

       the level of fundamental error and affirming the defendant’s convictions where

       the defendant made no contention that he did not receive a fair trial other than

       his assertion that the evidence was the product of an unconstitutional search

       and seizure), reh’g denied. 3


[17]   To the extent Simari challenges the sufficiency of the evidence, she does not

       allege that the State failed to prove any elements of the offenses. Rather, she

       asserts that the evidence is insufficient because the evidence of her conduct




       3
        Because we conclude that Officer Hass’s actions were reasonable under the Fourth Amendment and Article
       1, Section 11, we need not address the parties’ arguments regarding the new crime exception.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019             Page 10 of 14
       following the point at which Officer Hass guided her to the front yard is

       inadmissible. Because we conclude that the trial court did not commit

       fundamental error in admitting this evidence, Simari’s argument does not

       require reversal.


                                                         II.


[18]   We next address the State’s assertion that the trial court erred by merging

       Count II into Count I and the State’s concession with respect to Count III. The

       Indiana Constitution provides that “[n]o person shall be put in jeopardy twice

       for the same offense.” Ind. Const. art. 1, § 14. “Indiana’s Double Jeopardy

       Clause . . . prevent[s] the State from being able to proceed against a person

       twice for the same criminal transgression.” Hopkins v. State, 759 N.E.2d 633,

       639 (Ind. 2001) (quoting Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)).

       The Indiana Supreme Court has held that “two or more offenses are the ‘same

       offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with

       respect to either the statutory elements of the challenged crimes or the actual

       evidence used to convict, the essential elements of one challenged offense also

       establish the essential elements of another challenged offense.” Richardson, 717

       N.E.2d at 49.


[19]   Generally, a double jeopardy violation under the actual evidence test occurs

       when there is a reasonable possibility that the evidentiary facts used by the

       factfinder to establish the essential elements of an offense for which the

       defendant was convicted may also have been used to establish all the essential


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 11 of 14
       elements of a second challenged offense. Hines v. State, 30 N.E.3d 1216, 1222

       (Ind. 2015); Vestal v. State, 773 N.E.2d 805, 806 (Ind. 2002), reh’g denied. “[A]

       ‘reasonable possibility’ that the jury used the same facts to reach two

       convictions requires substantially more than a logical possibility.” Garrett v.

       State, 992 N.E.2d 710, 719 (Ind. 2013) (quoting Lee v. State, 892 N.E.2d 1231,

       1236 (Ind. 2008)). The existence of a reasonable possibility turns on a practical

       assessment of whether the fact-finder may have latched on to exactly the same

       facts for both convictions. Id. at 720. “Application of this test requires the

       court to ‘identify the essential elements of each of the challenged crimes and to

       evaluate the evidence from the jury’s perspective . . . .” Hines, 30 N.E.3d at

       1222 (quoting Lee, 892 N.E.2d at 1234 (quoting Spivey v. State, 761 N.E.2d 831,

       832 (Ind. 2002))). The Indiana Supreme Court has determined the possibility to

       be remote and speculative and therefore not reasonable when finding no

       sufficiently substantial likelihood that the fact-finder used the same evidentiary

       facts to establish the essential elements of two offenses. Hopkins, 759 N.E.2d at

       640 (citing Long v. State, 743 N.E.2d 253, 261 (Ind. 2001), reh’g denied; Redman

       v. State, 743 N.E.2d 263, 268 (Ind. 2001)). “In determining the facts used by the

       fact-finder, ‘it is appropriate to consider the charging information, jury

       instructions, [ ] arguments of counsel’ and other factors that may have guided

       the jury’s determination.” Hines, 30 N.E.3d at 1222 (quoting Lee, 892 N.E.2d at

       1234 (citing Spivey, 761 N.E.2d at 832, and Richardson, 717 N.E.2d at 54 n.48)).


[20]   In his opening statement, the prosecutor stated: “At the conclusion of the

       evidence we’re going to ask you to find her guilty of battery on a law

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 12 of 14
       enforcement and [sic] causing pain and injury to him, for biting him in the arm,

       for resisting law enforcement when Miss Simari punched him in the face.”

       Transcript Volume II at 167. Thus, the prosecutor indicated which specific acts

       the State was relying upon for Counts I and II. During closing argument, the

       prosecutor provided a “road map,” discussed Count I, asserted that the State

       had to prove injury, and pointed out that Officer Hass testified that he was

       bitten by Simari. Transcript Volume III at 195. The prosecutor also mentioned

       Count II and referenced the scuffle, Simari’s attempt to break away, and her

       fighting.


[21]   Under these circumstances, we cannot say that there is a reasonable possibility

       that the jury relied upon the same evidentiary facts to support Count I as it did

       to support Count II. Accordingly, we remand with instructions for the trial

       court to sentence Simari on Count II. See Payne v. State, 777 N.E.2d 63, 67-68

       (Ind. Ct. App. 2002) (addressing the State’s argument that the trial court erred

       in merging the defendant’s theft and burglary convictions, concluding that there

       was no reasonable possibility that the jury used the same evidentiary facts to

       convict the defendant of both burglary and theft, and remanding with

       instructions to sentence the defendant on the theft count).


[22]   The State acknowledges that convictions for both Count II, resisting law

       enforcement as a level 6 felony, and Count III, resisting law enforcement as a

       class A misdemeanor, would violate double jeopardy. It also asserts that the

       conviction under Count III should be vacated because the evidence cannot



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 13 of 14
       support convictions under Counts II and III. In light of the State’s concession

       and the record, we vacate Simari’s conviction for Count III.


                                                    Conclusion

[23]   For the foregoing reasons, we affirm Simari’s conviction under Count I, battery

       resulting in bodily injury to a public safety officer as a level 5 felony, and

       remand for the trial court to enter a sentence for her conviction under Count II,

       resisting law enforcement as a level 6 felony, and to vacate her conviction under

       Count III, resisting law enforcement as a class A misdemeanor.


[24]   Affirmed in part, reversed in part, and remanded.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2917 | July 30, 2019   Page 14 of 14
