MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Nov 15 2018, 11:17 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
Cara Schaefer Wieneke                                   Curtis T. Hill, Jr.
Brooklyn, Indiana                                       Attorney General of Indiana

                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Harry C. Custer,                                        November 15, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1539
        v.                                              Appeal from the Vigo Superior
                                                        Court
State of Indiana,                                       The Honorable Sarah K. Mullican,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        84D03-1707-F1-2173



Altice, Judge.


                                         Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-1539 | November 15, 2018             Page 1 of 4
[1]   Following a jury trial, Harry C. Custer was convicted of numerous offenses,

      including resisting law enforcement as a Level 6 felony and as a Class A

      misdemeanor. On appeal, Custer argues that his convictions for resisting law

      enforcement violate Indiana’s prohibition on double jeopardy. The State

      concedes that both resisting convictions are based upon a continuous act of

      resisting and agrees that Custer’s conviction for Class A misdemeanor resisting

      law enforcement should be vacated.


[2]   We reverse and remand with instructions to vacate Custer’s conviction for

      Class A misdemeanor resisting law enforcement.


                                       Facts & Procedural History


[3]   After identifying Custer as the suspect in a reported rape, police officers

      attempted to arrest him the following day during a traffic stop. Custer fled in

      his vehicle. The chase ended when Custer drove his truck into a field. Custer

      then exited his truck and fled on foot toward a wooded area. Shortly thereafter,

      Custer was apprehended without further incident.


[4]   Custer was charged with Count I, Level 1 felony rape; Count II, Level 3 felony

      criminal confinement; Count III, Level 5 felony battery resulting in serious

      bodily injury; Count IV, Level 5 felony intimidation; Count V, Level 6 felony

      strangulation; Count VI, Level 6 felony resisting law enforcement; Counts VII

      and VIII, both charging Level 6 felony battery against a public safety official;

      and Count IX, Class A misdemeanor resisting law enforcement. The State also

      alleged that Custer was a habitual offender. A jury trial was held March 20-22,

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1539 | November 15, 2018   Page 2 of 4
      2018. The jury found Custer guilty of Counts I through III, guilty of Class A

      misdemeanor intimidation as a lesser included offense of that charged in Count

      IV, and guilty on Counts V, VI, and IX. The jury found Custer not guilty on

      Counts VII and VIII. The jury also found Custer to be a habitual offender. The

      trial court sentenced Custer to an aggregate term of fifty years.1


                                            Discussion & Decision


[5]   This court has held that two convictions, one felony conviction for fleeing from

      officers in a vehicle, and another misdemeanor conviction for fleeing on foot,

      violate the continuing crime doctrine when both convictions are based upon

      one continuous incident of fleeing from the police. See Lewis v. State, 43 N.E.3d

      689, 691 (Ind. Ct. App. 2015) (holding that “Lewis’ actions of fleeing by vehicle

      and then on foot constitute one continuous act of resisting law enforcement,

      and we hold that convictions on both counts cannot stand”); Arthur v. State, 824

      N.E.2d 383, 387 (Ind. Ct. App. 2005) (holding that a defendant’s fleeing by

      vehicle and then on foot constitute one continuous act of resisting law

      enforcement) .


[6]   We agree that Custer’s actions of fleeing by vehicle and then on foot constitute

      one continuous act of resisting law enforcement. Therefore, Custer’s dual

      convictions for resisting law enforcement cannot stand. We remand this case to




      1
       The trial court sentenced Custer to thirty years on Count I (Level 1 felony rape) and enhanced that sentence
      by twenty years based on the habitual offender determination. The court entered concurrent sentences on
      each of the remaining counts.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1539 | November 15, 2018                 Page 3 of 4
      the trial court to vacate Custer’s conviction for Class A misdemeanor resisting

      law enforcement.


[7]   Judgment reversed and remanded with instructions.


      Brown, J. and Tavitas, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1539 | November 15, 2018   Page 4 of 4
