                                                                            Jan 29 2016, 8:50 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Megan Shipley                                             Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana                                     Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Willie Moore,                                             January 29, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1505-CR-321
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Peggy Hart,
Appellee-Plaintiff.                                       Commissioner
                                                          Trial Court Cause No.
                                                          49G20-1407-F5-35217



Pyle, Judge.




Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016                    Page 1 of 28
                                           Statement of the Case
[1]   Appellant/Defendant, Willie Moore (“Moore”), appeals his convictions for

      Level 6 felony resisting law enforcement1 and Level 4 felony unlawful

      possession of a firearm by a serious violent felon.2 Moore, a former resident of

      the Coppertree Apartment Complex (“Coppertree”), was stopped by

      Coppertree’s courtesy police officer one day. The officer discovered Moore’s

      name after stopping him and believed that he was a former resident who was on

      the complex’s trespass list. As a result, he requested to pat Moore down, but

      Moore ran. When the officer caught Moore, he arrested him, searched him,

      and discovered a firearm in Moore’s possession. Moore was subsequently

      convicted of: (1) resisting law enforcement as a Level 6 felony because the

      officer had been injured while pursuing Moore; and (2) possession of a firearm

      as a serious violent felon because Moore had a prior out-of-state conviction for

      residential burglary, which the trial court concluded was substantially similar to

      Indiana’s statute for burglary.


[2]   On appeal, Moore argues that: (1) the trial court abused its discretion in

      admitting evidence of the firearm because he was unlawfully stopped by

      Coppertree’s officer and, therefore, the resulting arrest and search violated his

      right to privacy under the United States and Indiana Constitutions; (2) the trial

      court erred in convicting him of possession of a firearm as a serious violent



      1
          IND. CODE § 35-44.1-3-1(a)(3).
      2
          I.C. § 35-47-4-5(c).


      Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 2 of 28
      felon because his prior out-of-state conviction for residential burglary was not

      substantially similar to a conviction for burglary in Indiana; and (3) there was

      insufficient evidence to support his conviction for resisting law enforcement as a

      Level 6 felony because there was no evidence that he caused the injuries

      Coppertree’s officer suffered while pursuing him. We conclude that: (1) the

      officer had reasonable suspicion to stop Moore, so the stop was lawful under

      the United States Constitution; (2) the officer’s actions were reasonable under

      the totality of the circumstances, so the stop was lawful under the Indiana

      Constitution; and (3) the Illinois statute for residential burglary was

      substantially similar to the Indiana statute for burglary. However, we agree

      with Moore that there was not sufficient evidence to elevate his resisting law

      enforcement conviction to a Level 6 felony because there was no evidence that

      he proximately caused the officer’s injuries. As a result, we affirm Moore’s

      conviction for unlawful possession of a firearm by a serious violent felon, but

      we reverse his conviction for resisting law enforcement as a Level 6 felony. We

      remand to the trial court with instructions to vacate Moore’s resisting law

      enforcement conviction and to enter a new conviction and sentence for the

      lesser-included offense of Class A misdemeanor resisting law enforcement.


[3]   We affirm in part, reverse in part, and remand.


                                                      Issues
              1. Whether the trial court abused its discretion in admitting the
              handgun.



      Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 3 of 28
              2. Whether the trial court erred in determining that the Illinois
              residential burglary statute was substantially similar to the Indiana
              burglary statute.

              3. Whether there was sufficient evidence to support Moore’s
              conviction for resisting law enforcement as a Level 6 felony.

                                                      Facts
[4]   Officer Christopher Helmer (“Officer Helmer”), a patrolman with the

      Speedway Police Department, worked as a “courtesy officer” for Coppertree

      when he was not working as a patrolman with the police department. (Tr. 4).

      As a courtesy officer, he was responsible for Coppertree’s security and

      responding to service calls. On July 12, 2014, Officer Helmer was at

      Coppertree when he saw Moore and another male walking along the street next

      to the complex. He stopped his patrol car next to them and got out to question

      them because he found it suspicious that Moore was wearing a dark hoodie

      when it was “roughly eighty” degrees outside that day. (Tr. 6). He also could

      not remember ever having seen the two males before. When he stopped, he did

      not activate his patrol car’s lights or siren or ask either man to stop.

      Nevertheless, the men stopped to talk to him.


[5]   Officer Helmer asked whether the men lived in Coppertree. Moore told him

      that they did not, but he gave Officer Helmer his name, which the officer

      recognized. Officer Helmer knew that Coppertree “had had several complaints

      about Willie Moore,” and another officer at Coppertree had told Officer

      Helmer that he had issued a written trespass warning to a Willie Moore. (Tr.



      Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 4 of 28
      10). Officer Helmer also knew that Moore had previously lived at Coppertree

      but that his family had been evicted.


[6]   While he was talking to the officer, Moore put his hands in his pocket. Out of

      concern for his safety, Officer Helmer asked both men if he could pat them

      down. Moore’s companion complied with Officer Helmer’s request and put his

      hands up so that the officer could pat him down. However, as Officer Helmer

      began to pat his companion down, Moore said, “Man, lets’ get out of here,”

      and started walking backwards away from the officer. (Tr. 10). Officer Helmer

      told him to stop, but, instead, Moore turned around and ran.


[7]   Officer Helmer radioed to dispatch that he was engaged in a foot pursuit and

      pursued Moore. Two blocks into this pursuit, he fell down as he ran and

      suffered a partially-torn tendon in his left shoulder. Still, he followed Moore

      into one of the buildings on the complex and found him trying to get into an

      apartment in that building. He deployed his taser, gained control over Moore,

      and then radioed for backup. When additional police officers arrived, Officer

      Helmer placed Moore in handcuffs and searched him. As a result of this

      search, he found a loaded firearm in a firearm holster in Moore’s pant leg.


[8]   Subsequently, on July 15, 2014, the State charged Moore with Level 5 felony

      possession of an altered handgun and Level 6 felony resisting law enforcement.

      On August 15, 2014, the State added an additional count charging Moore with

      Level 4 felony unlawful possession of a firearm by a serious violent felon. The

      State’s basis for this charge was that in 2013 Moore had been convicted of


      Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 5 of 28
       residential burglary in Cook County, Illinois. The State believed that the

       statutory elements of residential burglary in Illinois were substantially similar to

       the statutory elements of burglary, a serious violent felony, in Indiana.


[9]    Prior to trial, Moore moved to suppress evidence of “any items seized, or

       statements made by [Moore,]” during Officer Helmer’s investigatory stop.

       (App. 52). He argued that Officer Helmer had stopped him without a warrant,

       did not have probable cause to arrest him, and did not have reasonable

       suspicion of criminal activity. He asserted that, absent those constitutional

       requirements, the stop violated his right to privacy under the United States and

       Indiana Constitutions, and that all of the evidence gained as a result of the stop

       was therefore inadmissible. The trial court took the motion under advisement

       and held a bench trial on the charges on January 29, 2015.


[10]   At the trial, Officer Helmer testified that, when he stopped Moore, he had

       known that two men named Willie Moore had lived at Coppertree—Moore and

       Moore’s father, Willie Moore, Sr. Officer Helmer knew that Willie Moore, Sr.,

       had held the lease at Coppertree, but that the residents’ complaints had

       concerned Willie Moore, Jr. He testified that when he had stopped Moore, he

       had not known Moore and Moore, Sr.’s respective ages, weights, or heights.

       However, he said that he had previously heard Moore described as “a younger

       in the early 20’s black male.” (Tr. 23). Based on this description, he said that

       he had believed that the Willie Moore he had stopped on July 12 was Willie

       Moore, Jr., the subject of the complaints Coppertree had received.



       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 6 of 28
[11]   Also at trial, Moore testified and stipulated to the fact that he had been

       convicted of residential burglary in Chicago, Illinois on December 5, 2013. He

       also acknowledged that he had been on probation for that conviction when he

       committed his offenses in the current case.


[12]   At the conclusion of the presentation of evidence, the trial court took the matter

       under advisement. It then held a hearing on March 16, 2015, at which it denied

       Moore’s motion to suppress. At the same hearing, the court rendered its verdict

       that Moore was guilty as charged. However, the court found that Moore’s

       charge for possession of an altered handgun was a lesser-included charge of

       unlawful possession of a firearm by a serious violent felon, and the court did

       not enter a judgment of conviction for Moore’s possession of an altered

       handgun.


[13]   Thereafter, on April 22, 2015, the trial court held a sentencing hearing. It

       sentenced Moore to one (1) year for his resisting law enforcement conviction

       and five (5) years for his unlawful possession of a firearm by a serious violent

       felon conviction, with the sentences to be served concurrently. The court found

       that Moore’s age—twenty-one—was a mitigating factor and that his history of

       delinquency and the fact that he was on probation at the time of his offenses

       were aggravating factors. Moore now appeals.


                                                    Decision
[14]   On appeal, Moore raises three issues: (1) whether the trial court abused its

       discretion in admitting evidence of the handgun; (2) whether the trial court

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016    Page 7 of 28
       erred in determining that the Illinois residential burglary statute was

       substantially similar to the Indiana burglary statute; and (3) whether there was

       sufficient evidence to support his conviction for resisting law enforcement as a

       Level 6 felony. We will address each of these issues in turn.


       1. Admission of Evidence

[15]   Moore’s first argument is that the trial court abused its discretion when it

       admitted evidence of the handgun that Officer Helmer found when he searched

       him. We review a trial court’s ruling on the admissibility of evidence for an

       abuse of discretion. Garcia v. State, 25 N.E.3d 786, 788 (Ind. Ct. App. 2015).

       We will only reverse when admission is clearly against the logic and effect of

       the facts and circumstances before the court and the error affects a party’s

       substantial rights. Id. In making this determination, “[w]e consider the

       evidence most favorable to the trial court’s decision and any uncontradicted

       evidence to the contrary.” Id. When an appellant’s challenge to the admission

       of evidence is based on the argument that the search or seizure of the evidence

       was unconstitutional, it raises a question of law, which we review de novo. Id.


[16]   Moore asserts that Officer Helmer’s stop was unlawful and, accordingly, the

       handgun was inadmissible under the fruit of the poisonous tree doctrine.

       Moore raises this argument under both the United States and Indiana

       Constitutions. Because our analysis is different under each constitution, we will

       consider his federal and state arguments separately.




       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 8 of 28
           A. Fourth Amendment

[17]   The Fourth Amendment to the United States Constitution protects persons

       from unreasonable search and seizure by prohibiting, as a general rule, searches

       and seizures conducted without a warrant supported by probable cause. Clark v.

       State, 994 N.E.2d 252, 260 (Ind. 2013). As a deterrent mechanism, evidence

       obtained in violation of this rule is generally not admissible in a prosecution

       against the victim of the unlawful search or seizure under the fruit of the

       poisonous tree doctrine, absent evidence of a recognized exception. Id.


[18]   A person has been “seized” for purposes of the Fourth Amendment when an

       officer has, by means of physical force or a show of authority, restrained the

       liberty of a citizen, or when, in view of all of the circumstances surrounding the

       incident, a reasonable person would have believed he was not free to leave a

       police officer’s questioning. D.Y. v. State, 28 N.E.3d 249, 255 (Ind. Ct. App.

       2015). However, an officer may, without a warrant or probable cause, briefly

       detain an individual for investigatory purposes if the officer has reasonable

       suspicion that criminal activity “‘may be afoot.’” Edmond v. State, 951 N.E. 2d

       585, 588 (Ind. Ct. App. 2011) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)).

       Accordingly, limited investigatory stops and seizures on the street involving a

       brief question or two and a possible frisk for a weapon can be justified by mere

       reasonable suspicion. Id. The reasonable suspicion inquiry is highly fact-

       sensitive and is reviewed under a sufficiency of the evidence standard. Finger v.

       State, 799 N.E.2d 528, 533 (Ind. 2003). We do not reweigh the evidence, and

       we consider conflicting evidence in the light most favorable to the trial court’s

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 9 of 28
       ruling. Id. Reasonable suspicion must be based on specific and articulable facts

       known to the officer at the time of the stop that lead the officer to believe that

       “‘criminal activity may be afoot.’” Id. at 533-34 (quoting Terry, 392 U.S. at 30).

       This standard requires more than mere hunches or unparticularized suspicions.

       Id. at 534.


[19]   Here, Moore argues that Officer Helmer did not have reasonable suspicion to

       detain him. He admits that Officer Helmer did not need reasonable suspicion

       to stop him initially because it was a consensual conversation in a public place,

       see State v. Calmes, 894 N.E.2d 199, 202 (Ind. Ct. App. 2008) (stating that a

       consensual encounter in which a police officer makes a casual and brief inquiry

       of a citizen that does not involve an arrest or stop does not implicate the Fourth

       Amendment), but he contends that when he decided to end his initial

       conversation with Officer Helmer by leaving the pat down, the officer did not

       have reasonable suspicion to stop him from leaving. The trial court found that

       the Officer did have reasonable suspicion because Officer Helmer had

       discovered Moore’s name, knew that several residents had complained about a

       Willie Moore, and knew that a Willie Moore had been placed on the trespass

       list. Moore disputes this finding, arguing that: (1) the complaints were

       equivalent to anonymous tips, and Indiana courts have held that an anonymous

       tip is not sufficient to create reasonable suspicion; and (2) Officer Helmer did

       not know the age, height, or weight of the Willie Moore that had been placed

       on the trespass list and, therefore, could not reasonably have believed that the




       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 10 of 28
       Willie Moore on the trespass list was him. In support of this second argument,

       he notes that his father, Willie Moore, Sr., had also lived in the complex.


[20]   Contrary to Moore’s argument regarding the residents’ complaints, it is well-

       established in Indiana that a tip from a concerned citizen may justify an

       investigatory stop if sufficiently reliable. Russell v. State, 993 N.E.2d 1176, 1180

       (Ind. Ct. App. 2013). The reliability of a concerned citizen tip “‘generally must

       be established by reference to underlying facts and circumstances which

       indicate that the information is trustworthy.’” Id. (quoting State v. Renzulli, 958

       N.E.2d 1143, 1147 (Ind. 2011)).


[21]   However, we need not consider whether the residents’ complaints were reliable

       because we conclude that, once Officer Helmer discovered Moore’s name, he

       had reasonable suspicion to stop Moore to determine whether he was the same

       Willie Moore whom Officer Helmer had heard was on the trespass list. Officer

       Helmer was only required to have a “reasonable suspicion” to stop Moore, not

       “absolute certainty” that Moore was involved in illegal activity. See Rutledge v.

       State, 28 N.E.3d 281, 290 (Ind. Ct. App. 2015) (stating that “Terry does not

       require absolute certainty of illegal activity”). At trial, Officer Helmer

       established that he knew two Willie Moores had lived at the apartment

       complex, one of whom was on the trespass list. Even if, as Moore argues,

       Officer Helmer did not know the heights and ages of the respective Willie

       Moores, he still knew there was a substantial likelihood, based on the name,

       that the person he had stopped was the person on the trespass list. Further,

       there is evidence that, contrary to Moore’s argument, Officer Helmer did know

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016    Page 11 of 28
       Moore’s approximate age. Specifically, he testified that he had previously

       heard the Willie Moore who was on the trespass list described as “a younger in

       the early 20’s black male.”3 (Tr. 23).


[22]   In light of these factors, we conclude that Officer Helmer’s stop was based on

       specific facts giving rise to reasonable suspicion, not a hunch or

       unparticularized suspicion, and was thus lawful. As Moore does not otherwise

       challenge the arrest following his stop or the search producing the handgun, we

       also conclude that the trial court did not abuse its discretion on Fourth

       Amendment grounds when it admitted the evidence of the handgun discovered

       pursuant to the arrest.


           B. Article 1, Section 11

[23]   Next, Moore argues that the stop was unlawful under the Indiana Constitution.

       Article 1, Section 11 of the Indiana Constitution, like the Fourth Amendment,

       prohibits unreasonable searches and seizures. However, although the language

       of Article 1, Section 11 is almost identical to the language of the Fourth

       Amendment, we interpret it and apply it independently from the Fourth

       Amendment. Buckley v. State, 886 N.E.2d 10, 14 (Ind. Ct. App. 2008). The

       legality of a governmental search under the Indiana Constitution turns on an




       3
         It is apparent that this fit Moore’s description as the trial court identified Moore’s age as twenty-one when it
       sentenced him.

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016                           Page 12 of 28
       evaluation of the reasonableness of the police conduct under the totality of the

       circumstances. Mundy v. State, 21 N.E.3d 114, 118 (Ind. Ct. App. 2014).


[24]   When evaluating the totality of the circumstances, we give Article 1, Section 11

       a liberal construction in favor of protecting individuals from unreasonable

       intrusions on privacy. Rush v. State, 881 N.E.2d 46, 52 (Ind. Ct. App. 2008).

       Although there may be other relevant considerations under the circumstances,

       the reasonableness of a search or seizure turns on a balance of: (a) the degree of

       concern, suspicion, or knowledge that a violation has occurred; (b) the degree of

       intrusion the method of the search or seizure imposes on the citizens’ ordinary

       activities; and (c) the extent of law enforcement needs. Id. The degree of

       intrusion is evaluated from the defendant’s point of view. Mundy, 21 N.E.3d at

       118. It is the State’s burden to show that under the totality of the

       circumstances, its intrusion was reasonable. Harper v. State, 922 N.E.2d 75, 81

       (Ind. Ct. App. 2010), trans. denied.


[25]   Moore asserts that Officer Helmer’s initial approach was arbitrary because the

       fact that Moore was wearing a hooded sweatshirt was not a reasonable basis for

       suspicion. Again, he also argues that, once Officer Helmer began talking to

       him, the officer should not have had a high degree of suspicion that he was

       involved in illegal activity because the officer knew there had been two Willie

       Moores on the property, and he did not know either Willie Moore’s respective

       age, height, or weight.




       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 13 of 28
[26]   Considering the totality of the circumstances, we conclude that Officer

       Helmer’s conduct was reasonable. As for his degree of suspicion that a

       violation had occurred, he initially noticed Moore because Moore was acting

       strangely by wearing a hoodie on a very hot day. While this alone would not

       necessarily generate a reasonable high degree of suspicion, Officer Helmer also

       discovered Moore’s name and determined that there was a good chance that he

       was on Coppertree’s trespass list. Contrary to Moore’s arguments, and as we

       stated above, Officer Helmer did have a description of Moore’s appearance and,

       therefore, could determine that Moore was likely the person on the trespass list.

       As for Officer Helmer’s degree of intrusion, his intrusion was minimal as he

       merely took a moment to ask Moore questions in a public place. See J.B. v.

       State, 30 N.E.3d 51, 56 (Ind. Ct. App. 2015) (requiring a person to sit on the

       sidewalk for a “short time,” without restraints, until other police officers arrived

       was a minimal intrusion). Finally, the extent of Officer Helmer’s law

       enforcement need was high as he believed that Moore was on the apartment’s

       trespass list and had caused several resident complaints. In light of Officer

       Helmer’s high degree of suspicion, minimally intrusive actions, and law

       enforcement needs, we conclude that his investigatory stop of Moore was

       reasonable under the totality of the circumstances. Accordingly, the trial court

       did not abuse its discretion in admitting evidence of the handgun discovered

       pursuant to the search under the Indiana Constitution.




       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 14 of 28
       2. Serious Violent Felon

[27]   Next, Moore argues that the trial court erred when it convicted him of

       unlawfully possessing a firearm as a serious violent felon based on its

       conclusion that his prior conviction in Illinois for residential burglary qualified

       him as a serious violent felon. In order to convict a defendant of unlawful

       possession of a firearm by a serious violent felon, the State must prove that the

       defendant has been convicted of a serious violent felony in Indiana or “any

       other jurisdiction in which the elements of the crime for which the conviction

       was entered are substantially similar to the elements of a serious violent

       felony.” I.C. § 35-47-4-5(a)(1). The statute lists several offenses that qualify as

       serious violent felonies, including Levels 1, 2, 3, and 4 felony burglary. I.C. §

       35-47-4-5(b)(15). The trial court concluded that the Illinois statute for

       residential burglary was substantially similar to the Indiana statute for burglary

       and, thus, concluded that Moore was a serious violent felon at the time of his

       offense. Moore challenges this conclusion, arguing that the Illinois statute was

       not substantially similar to the Indiana statute and that he should not have been

       considered a serious violent felon.


[28]   To determine whether the statutes were substantially similar, we must compare

       the Illinois statute under which Moore was convicted and the Indiana statute at

       the time of the current offense. Hollingsworth v. State, 907 N.E.2d 1026, 1030

       (Ind. Ct. App. 2009). We review questions of foreign law, as with any

       questions of law, de novo. Id. The Indiana Code does not define “substantially

       similar,” but in State v. Bazan, No. 55A01-1506-CR-737, slip op. at *3 (Ind. Ct.


       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 15 of 28
       App. Nov. 10, 2015), we held that an out-of-state statute was not “substantially

       similar” to an Indiana statute when the out-of-state statute was broader than the

       Indiana statute. Specifically, we held that a New York statute for operating a

       vehicle while impaired was not substantially similar to Indiana’s statute for

       operating a vehicle while intoxicated because the Indiana statute required a

       greater showing of impairment. See id. In contrast, where an out-of-state

       statute was more stringent than an equivalent Indiana statute, our supreme

       court held that the statutes were substantially similar. See State v. Atkins, 824

       N.E.2d 676 (Ind. 2005) (holding that because Michigan’s statute for operating a

       vehicle while being under the influence of an intoxicating liquor or having an

       alcohol content of 0.10 grams or more per 100 milliliters of blood required a

       degree of intoxication greater than Indiana’s equivalent statute, the two statutes

       were substantially similar).


[29]   The basis for Moore’s argument is that the Indiana statute for burglary includes

       an element of “breaking,” which requires force, whereas the Illinois statute for

       residential burglary does not. Specifically, in Indiana, a person commits Level

       4 felony burglary if he or she “breaks and enters the building or structure of

       another person, with intent to commit a felony or theft in it” and the structure is

       a “dwelling.”4 I.C. § 35-43-2-1. The element of “break[ing]” requires the use of




       4
         A burglary is a Level 5 felony if the building or structure is not a dwelling, but is a Level 4 felony if it is a
       dwelling. I.C. § 35-43-2-1. Because the Illinois residential burglary statute includes the “dwelling” element
       and because a burglary felony conviction must be a Level 4 felony or higher in Indiana in order to qualify as
       a serious violent felony, we will compare the elements for Level 4 felony burglary in Indiana and residential
       burglary in Illinois. 720 ILL. COMP. STATE. ANN. 5/19-3 (West 2015); I.C. § 35-47-4-5(b)(15).

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016                             Page 16 of 28
       force. See Goolsby v. State, 517 N.E.2d 54, 57 (Ind. 1987). At the time of

       Moore’s residential burglary conviction, the Illinois residential burglary statute

       provided that a person committed residential burglary if he or she “knowingly

       and without authority enter[ed] or knowingly and without authority remain[ed]

       within the dwelling place of another, or any part thereof, with the intent to

       commit therein a felony or theft.” 720 ILL. COMP. STATE. ANN. 5/19-3 (West

       2013). Based on the difference in wording between these two statutes, Moore

       asserts that a person may be convicted of residential burglary in Illinois without

       being convicted of burglary in Indiana under the same circumstances, which

       under Bazan would indicate that the two statutes are not substantially similar.


[30]   We disagree with Moore’s argument that Illinois’ residential burglary statute

       was not substantially similar to the Indiana burglary statute because it did not

       include the word “breaking,” or explicitly require the use of force. To the

       contrary, Illinois legal authority indicates that the Illinois residential burglary

       statute implies the use of force, like the burglary statute in Indiana. In People v.

       Beauchamp, 944 N.E.2d 319, 323 (Ill. 2011), the Illinois Supreme Court

       interpreted the element “enter” of the burglary statute to include a “breaking.”

       Specifically, the Court stated that “an entry may be accomplished simply by

       ‘breaking the close,’ i.e. crossing the planes that enclose the protected space.”

       Id. In other words, an “entry” involves force, even if it is the slightest force.

       Notably, in Indiana, the use of force may also be slight and still constitute a

       “breaking.” See Smith v. State, 535 N.E.2d 117, 118 (Ind. 1989) (“The use of

       even the slightest force, such as the opening of an unlocked door, can constitute


       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 17 of 28
       a breaking.”). Therefore, the word “entry” in Illinois had a similar meaning to

       “breaking” in Indiana.


[31]   In addition, at the time of Moore’s Illinois offense, residential burglary was

       classified as a “forcible felony” under the Illinois Criminal Code. 720 ILL.

       COMP. STATE. ANN. 5/2-8 (West 2013). According to the Criminal Code, a

       “forcible felony” was:


               treason, first degree murder, second degree murder, predatory
               criminal sexual assault of a child, aggravated criminal sexual
               assault, criminal sexual assault, robbery, burglary, residential
               burglary, aggravated arson, arson, aggravated kidnaping,
               kidnaping, aggravated battery resulting in great bodily harm or
               permanent disability or disfigurement and any other felony which
               involves the use or threat of physical force or violence against an
               individual.


       Id. (emphasis added). Although the classification of “forcible felony” is

       primarily relevant in the context of felony murder in Illinois, we find it

       significant that the Illinois legislature found residential burglary comparable to

       a felony involving “the use or threat of physical force or violence.” Id.


[32]   In light of the above factors, we do not find merit in Moore’s argument that the

       Illinois statute for residential burglary was not substantially similar to the

       Indiana statute for burglary merely because it did not include the term

       “breaking.” Instead, we conclude that the Illinois statute implies the use of

       force, which is substantially similar to the Indiana burglary statute. We do not

       find any error in the trial court’s conclusions on this issue.


       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016     Page 18 of 28
       3. Resisting Law Enforcement


[33]   Finally, Moore argues that there was insufficient evidence to support his

       conviction for resisting law enforcement as a Level 6 felony. A person commits

       resisting law enforcement as a Class A misdemeanor if he or she: “knowingly

       or intentionally . . . flees from a law enforcement officer after the officer has, by

       visible or audible means, including the operation of the law enforcement

       officer’s siren or emergency lights, identified himself or herself and ordered the

       person to stop.” I.C. § 35-44.1-3-1(a)(3). The offense is elevated to a Level 6

       felony if, while committing the offense, “the person . . . inflicts bodily injury on

       or otherwise causes bodily injury to another person[.]” I.C. § 35-44.1-3-

       1(b)(1)(B). Moore was convicted of a Level 6 felony because Officer Helmer

       fell while he was pursuing Moore and suffered a partially-torn tendon in his left

       shoulder. On appeal, Moore argues that evidence of this injury was not

       sufficient to support the elevation of his conviction to a Level 6 felony because

       there was no evidence that he “inflict[ed]” or “otherwise cause[d]” the officer’s

       bodily injury. I.C. § 35-44.1-3-1(b)(1)(B).


[34]   The standard of review for a sufficiency of the evidence claim is that this Court

       should only reverse a conviction when reasonable persons would not be able to

       form inferences as to each material element of the offense. Perez v. State, 872

       N.E.2d 208, 212-13 (Ind. Ct. App. 2007), trans. denied. We do not reweigh

       evidence or judge the credibility of witnesses. Id. at 213. In addition, we only

       consider the evidence most favorable to the judgment and the reasonable

       inferences stemming from that evidence. Id.

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 19 of 28
[35]   Moore and the State direct us to two cases regarding causation of bodily injury

       while resisting arrest: Whaley v. State, 843 N.E.2d 1 (Ind. Ct. App. 2006), trans.

       denied, and Smith v. State, 21 N.E.3d 121 (Ind. Ct. App. 2014). In Whaley, the

       defendant, Whaley, attempted to prevent police officers from handcuffing him

       when he was lying on the ground by placing his arms underneath his body.

       Whaley, 843 N.E.2d at 5. Two officers had to hit his forearms in order to bring

       his arms behind his back to handcuff him, and both officers injured their wrists

       and hands in the process. Id. Because Whaley had caused these injuries, his

       conviction for resisting law enforcement was elevated to a Class D felony. 5 See

       id. at 10. At trial and on appeal, Whaley argued that his conviction should not

       have been elevated to a Class D felony because the officers themselves caused

       their injuries when they hit him. Id. We upheld Whaley’s conviction,

       concluding that the officers’ injuries “were directly related to and caused by

       Whaley’s resisting arrest.” Id. at 11.


[36]   In Smith, the defendant, Smith, also resisted being handcuffed. Smith, 21

       N.E.3d at 123. As a result, an officer “forcefully put all [his] body weight onto

       [Smith’s] body[.]” Id. The officer told Smith to put her hands behind her back

       or he would “take [her] to the ground,” but she still did not comply. Id. The




       5
         Effective July 1, 2014, the Indiana Legislature amended the resisting law enforcement statute based on a
       revised sentencing scheme. An elevation from a Class A misdemeanor for “caus[ing]” bodily injury was
       previously considered a Class D felony but is now a Level 6 felony. See I.C. § 35-44.1-3-1 (2013); I.C. § 24-
       44.1-3-1 (2014). Although the classification of the felony changed, the elements of the offense did not.
       Accordingly, even though Whaley was sentenced to a Class D felony, his argument still applies here because
       the elements for the former Class D felony conviction are equivalent to the elements for a Level 6 felony
       conviction.

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016                       Page 20 of 28
       officer then tried to give Smith a “knee strike” by “apply[ing] some pain to . . . a

       nerve that [ran] to the muscle of [her] leg,” but that did not have the desired

       effect, so the officer “pulled her arm . . . possibly as hard as [he] could [and]

       [they] ended up on the ground.” Id. In this process, the officer received

       lacerations to his knuckles and fingertips. Id. As a result, Smith was charged

       with, and convicted of, resisting arrest as an elevated Class D felony based on

       the officer’s injuries. Id. at 124.


[37]   On appeal, Smith argued that she did not cause the officer’s injuries and that

       her conviction should not have been enhanced to a felony. We agreed with

       Smith that she was a “passive part of the encounter” and “took no actions

       toward” the officer. Id. at 125. We also stated that we did not “believe a

       person who is thrown to the ground necessarily ‘inflicts’ or ‘causes’ an injury

       suffered by the person who throws her to the ground.” Id. As a result, we

       concluded that Smith did not cause the officer’s injuries and that her conviction

       should not have been elevated to a felony. Id. at 126. We distinguished this

       conclusion from our decision in Whaley by noting that “unlike Whaley, Smith

       did not create a scenario in which [the officer’s] only option in handcuffing her

       was to remove her hands from a location in which he could not reach.” Id.


[38]   Another way to distinguish these two cases is by considering the difference

       between contributing and proximate causation, which is a distinction that our

       supreme court discussed in Abney v. State, 766 N.E.2d 1175 (Ind. 2002). There,

       our supreme court defined a “contributing cause” as “a factor that-though not

       the primary cause-plays a part in producing a result.” Id. at 1178. As an

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 21 of 28
       example of a contributing cause, the Court noted a hypothetical it had used in

       its decision in Micinski v. State, 487 N.E.2d 150, 154 (Ind. 1986), of a drunk

       driver who hit a child that had run out from between two parked cars. Id. at

       1177. The Court used this example to demonstrate that a contributing cause

       should not be sufficient causation for purposes of criminal liability.

       Specifically, it quoted its statement from Micinski that the driver who had hit the

       child would be a contributing cause of the child’s injuries or death, but might be

       “entitled to ask the jury to find him not guilty because there is a reasonable

       doubt whether he caused the collision.” Id. (emphasis added).


[39]   Instead of a contributing cause, the Abney Court held that, to support a

       conviction based on an injury or death, the State must prove that a defendant is

       a proximate cause of the victim’s injury or death. Id. at 1178. Specifically, the

       Court stated that, in the context of a conviction for operating a vehicle with at

       least ten-hundredths percent by weight of alcohol in a person’s blood and

       causing death, “[i]f the driver’s conduct causes the injury, he commits the

       crime; if someone else’s conduct caused the injury, he is not guilty.” Id. at

       1177. It reasoned that this was “simply a short-handed way of stating the well-

       settled rule that the State must prove [a] defendant’s conduct [is] a proximate

       cause of the victim’s injury or death.” Id. at 1177-78.


[40]   In Gibbs v. State, 677 N.E.2d 1106 (Ind. Ct. App. 1997), we described the

       requirements for proximate cause. There, we stated:

               A finding of proximate cause embodies a value judgment as to
               the extent of the physical consequences of an action for which the
       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 22 of 28
               actor should be held responsible. Accordingly, “proximate cause
               questions are often couched in terms of ‘foreseeability;’ an actor
               is not held responsible for consequences which are
               unforeseeable.” It follows that, where an intervening cause is
               claimed as superseding the defendant’s actions, the intervening
               cause is claimed as superseding the defendant’s actions, the
               intervening cause must be unforeseeable to relieve the defendant
               of criminal liability.


       Id. at 1109.


[41]   Although Abney concerned a conviction for operating while intoxicated causing

       death, it is a well-settled rule, as the Abney Court stated, that causation for

       purposes of a criminal conviction must be proximate, rather than contributing.

       See id. Troublingly, the Whaley and Smith Courts did not couch their decisions

       in terms of this standard for causation. However, we may interpret their

       decisions consistently with this standard. As we noted in Smith, in Whaley,

       Whaley did not give the officers any choice but to hit his arms to move them,

       whereas in Smith, Smith “did not create a scenario in which [the officer’s] only

       option in handcuffing her was to remove her hands from a location in which he

       could not reach.” See Smith, 21 N.E.3d at 126. In other words, in Whaley,

       Whaley was the direct cause of the officers’ injuries because he left the officers

       no other choice but to hit his arms. In terms of proximate cause, this meant

       that the officers’ injuries were a highly foreseeable result of Whaley’s actions.

       In contrast, in Smith, the officer had other options, and his decision to take

       Smith “to the ground” and injure himself was not as foreseeable. Therefore,

       although the Smith Court did not frame its decision in terms of proximate

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 23 of 28
       cause, we interpret the Smith Court’s holding to imply that Smith’s actions were

       not a proximate cause of the officer’s injuries.


[42]   Using the standard of proximate cause here, we are not convinced that the

       evidence of Moore’s actions was sufficient to support the conclusion that he

       caused Officer Helmer’s injuries. While Officer Helmer would not have

       received his injury if he had not pursued Moore, that fact is only sufficient to

       prove that Moore was a contributing cause of the injury—i.e., “a factor that-

       though not the primary cause-plays a part in producing a result.” Abney, 766

       N.E.2d at 1178. The actual cause of Officer Helmer’s fall is not clear from the

       record. While it may be possible for a defendant fleeing from an officer to be a

       proximate, as well as contributing, cause of that officer’s resulting injuries, we

       do not find evidence to support that Moore proximately caused Officer

       Helmer’s injuries here. In addition to the fact that there was no evidence of the

       actual cause of Officer Helmer’s fall, Moore, unlike Whaley, did not put Officer

       Helmer in a position where his only option was to suffer injury.


[43]   However, although we find that there was not sufficient evidence to support the

       causation element that enhanced Moore’s conviction for resisting law

       enforcement to a Level 6 felony, it is undisputed that there was sufficient

       evidence to convict him of resisting law enforcement as a Class A

       misdemeanor. Accordingly, we reverse Moore’s resisting law enforcement

       conviction and remand to the trial court with instructions to vacate Moore’s

       conviction and re-enter a conviction and sentence for Class A misdemeanor

       resisting law enforcement. See Chatham v. State, 845 N.E.2d 203, 208 (Ind. Ct.

       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 24 of 28
       App. 2006) (“When a conviction is reversed because of insufficient evidence,

       we may remand for the trial court to enter a judgment of conviction upon a

       lesser-included offense if the evidence is sufficient to support the lesser

       offense.”)


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


       Baker, J., concurs.


       Bradford, J., concurs in part, dissents in part with opinion.




       Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016     Page 25 of 28
                                            IN THE
    COURT OF APPEALS OF INDIANA

Willie Moore,                                             January 29, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1505-CR-321
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Peggy Hart,
Appellee-Plaintiff.                                       Commissioner
                                                          Trial Court Cause No.
                                                          49G20-1407-F5-35217



Bradford, Judge.


Bradford, Judge, concurring in part, dissenting in part.

        I concur with the majority’s conclusion that the trial court acted within its

discretion in admitting the handgun discovered on Moore’s person into evidence.

I also concur with the majority’s conclusion that the Illinois statute for residential

burglary was substantially similar to the Indiana burglary statute. However,

because I believe that the evidence was such that the trial court, acting as the trier-

of-fact, could reasonably conclude that Moore’s actions were the proximate cause

of Officer Helmer’s injury, I respectfully dissent from the majority’s conclusion

that the evidence was insufficient to sustain Moore’s conviction for Level 6 felony

resisting arrest.




Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016             Page 26 of 28
                  Sufficiency of the Evidence to Prove Moore’s Actions
                            “Caused” Officer Helmer’s Injury

         Indiana Code section 35-44.1-3-1(b)(1)(B) provides that the offense of

resisting law enforcement is a Level 6 felony if while committing the offense, the

person “inflicts bodily injury on or otherwise causes bodily injury to another

person.” (Emphasis added). In order to support a conviction based on injury to

another, the State must prove that a defendant’s actions were the proximate cause

of the victim’s injury. See generally, Abney v. State, 766 N.E.2d 1175, 1177-78 (Ind.

2002) (providing that it is well-settled that the State must prove that the

defendant’s conduct was the proximate cause of the victim’s injury or death). A

determination as to whether an act was the proximate cause of the injury to the

victim is generally a question of fact. See Hellums v. Raber, 853 N.E.2d 143, 146

(Ind. Ct. App. 2006). At a minimum, proximate cause requires that the injury

would not have occurred “but for” the defendant’s conduct. Paragon Family Rest.

v. Bartolini, 799 N.E.2d 1048, 1054 (Ind. 2003).6




6
  In concluding that the evidence is insufficient to sustain the enhanced felony conviction, the
majority cites to this court’s decision in Smith v. State, 21 N.E.3d 121 (2014). In Smith, a panel
of this court concluded that the evidence was insufficient to sustain the enhanced felony
conviction because the Officer was injured as a result of his decisions rather than Smith’s
actions, which the court deemed were a “passive part of the encounter.” 21 N.E.3d at 125. The
majority interprets the Smith Court’s holding to imply that Smith’s actions were not a proximate
cause of the Officer’s injuries. I respectfully disagree with the conclusion in Smith that the
Officer’s injuries were not proximately caused by Smith’s actions. Furthermore, as with the instant
case, I feel that the determination of proximate cause in Smith is one which should be left to the fact-finder.

Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016                          Page 27 of 28
        In the instant matter, the evidence demonstrates that Moore resisted law

enforcement by running away after being stopped by Officer Helmer. Officer

Helmer was injured when he fell while chasing after Moore. The evidence is

such that the trial court, acting as the trier-of-fact, could reasonably form the

inference that Moore’s act of running from Officer Helmer was the proximate

cause of Officer Helmer’s injury. In addition, it is not unreasonable to anticipate

that a consequence of fleeing from the police would be that an officer could fall

and be injured during the ensuing chase. I would therefore conclude that the

evidence is sufficient to prove that Moore “caused” Officer Helmer’s injury and

affirm Moore’s conviction for Level 6 felony resisting law enforcement.




Court of Appeals of Indiana | Opinion 49A02-1505-CR-321 |January 29, 2016   Page 28 of 28
