A V v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: February 9, 2024
• Docket: 23A-JV-01765
• Status: Published

Opinion

FILED Feb 09 2024, 8:46 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

IN THE

Court of Appeals of Indiana A.V., Appellant-Defendant

v.

State of Indiana, Appellee-Plaintiff

February 9, 2024 Court of Appeals Case No. 23A-JV-1765 Appeal from the Hendricks Superior Court The Honorable Ryan W. Tanselle, Judge Trial Court Cause No. 32D03-2212-JD-195

Opinion by Judge Tavitas Judges Mathias and Weissmann concur.

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 1 of 15 Tavitas, Judge.

Case Summary [1] A.V., a juvenile, was adjudicated a delinquent for committing battery against a

public safety official, a Level 6 felony if committed by an adult, and resisting

law enforcement, a Class A misdemeanor if committed by an adult. On appeal,

A.V. challenges the sufficiency of the evidence to support her adjudications.

Specifically, A.V. argues that her adjudications must be reversed because the

officer lacked reasonable suspicion to stop her. We address A.V.’s arguments

despite A.V.’s failure to object to the evidence at trial. We find, however, that

the officer had reasonable suspicion to stop A.V. and that the evidence is

sufficient to sustain her adjudications. Accordingly, we affirm.

Issue [2] A.V. raises one issue, which we restate as whether the State presented sufficient

evidence to support A.V.’s adjudications when, according to A.V., the police

officer lacked reasonable suspicion to stop her.

Facts [3] In the early morning hours of Wednesday, December 21, 2022, Danville Police

Department Officer Kennedy Molina was pursuing a vehicle that had

committed several traffic infractions. The vehicle drove into a ditch, and the

two young male occupants fled on foot into a nearby neighborhood in Avon.

Officer Molina pursued the individuals on foot, and law enforcement set up a

perimeter. Law enforcement eventually located the passenger of the vehicle, Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 2 of 15 and after speaking with him, law enforcement believed that someone was

driving to the neighborhood to pick up the other suspect, who was last seen

near Quillen Court.

[4] Avon Police Department Lieutenant Thomas Owens and other officers

continued to search for the suspect. After approximately one hour, Lieutenant

Owens turned onto Quillen Court, and he noticed a vehicle’s brake lights

switch from on to off. It was twenty-five degrees outside, and every other

vehicle had frost on the windows except for this vehicle. This information led

Lieutenant Owens to believe the vehicle had been driven recently.

Additionally, the vehicle’s license plate was not registered to anyone residing in

the neighborhood, and the vehicle was parked at an angle by the curb, as if it

had “just [] pulled in.” Tr. Vol. p. 15.

[5] At this point, Lieutenant Owens believed the vehicle was there to pick up the

suspect, and he approached the vehicle. He noticed that the driver, A.V.,

appeared to be a fifteen- or sixteen-year-old girl. The following exchange then

took place:

Lt. Owens: So where’s he at?

A.V.: I don’t know.

Lt. Owens: Where did he tell you to pick him up at?

A.V.: He didn’t tell me to pick him up.

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 3 of 15 Lt. Owens: What did he tell you to do?

A.V.: He didn’t tell me to do anything.

Lt. Owens: Then why are you here?

A.V.: Because I’m sitting here.

Lt. Owens: How old are you?

A.V.: Does that matter?

Lt. Owens: Yes, it does.

State’s Ex. 1 at 1:06-1:29. A.V. refused to provide her age.

[6] Lieutenant Owens then instructed A.V. to step outside the vehicle several times,

but a defiant A.V. refused. The doors were locked, so Lieutenant Owens

reached inside the vehicle to unlock the door. He tried to pull A.V. out by the

wrist, but A.V. “pulled back in to try and get away.” Tr. Vol. p. 16. Lieutenant

Owens eventually pulled A.V. from the vehicle, while A.V. flailed, screamed,

and cursed at the officers. A.V. kicked Lieutenant Owens in the shoulder, arm,

and back as he attempted to place her in handcuffs. A.V. screamed that the

handcuffs hurt, and Lieutenant Owens loosened them.

[7] After loosening the handcuffs, Lieutenant Owens instructed A.V. to sit down,

but A.V. refused. Lieutenant Owens then pulled A.V. to the ground and again

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 4 of 15 asked A.V. her age, which A.V. would not provide. Officers eventually located

the suspect hiding in the back of A.V.’s vehicle.

[8] The State filed a delinquency petition, which alleged that A.V. committed

battery against a public safety official, a Level 6 felony if committed by an

adult, and resisting law enforcement, a Class A misdemeanor if committed by

an adult. The juvenile court held a fact-finding hearing on May 1, 2023.

[9] Prior to the fact-finding hearing, A.V. did not file a motion to suppress any

evidence that was obtained as a result of her exchange with the police. During

the bench trial, Officer Molina and Lieutenant Owens testified to the facts

stated above. The State also admitted into evidence Lieutenant Owens’s body

camera footage from the incident, which corroborated his testimony. A.V.

made no objection to any of this evidence based on the Fourth Amendment to

the United States Constitution or Article 1, Section 11 of the Indiana

Constitution. Instead, A.V. argued in her closing argument that Lieutenant

Owens lacked reasonable suspicion to stop the vehicle. After taking the matter

under advisement, the juvenile court, on May 26, 2023, issued its order finding

that A.V. was a delinquent child for committing the charged offenses. The

juvenile court ordered that A.V. serve six months on probation with the

possibility of an early release after five months. A.V. now appeals.

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 5 of 15 Discussion and Decision I. Failure to Object at Trial

[10] A.V. challenges the sufficiency of the evidence to support her adjudications.

Although A.V. characterizes the issue here as whether the State presented

“sufficient evidence” to support her adjudications, Appellant’s Br. p. 8, in

reality, A.V. is challenging the traffic stop and her arrest on Fourth Amendment

grounds. 1 She argues that Lieutenant Owens lacked reasonable suspicion to

stop her. She also argues that, because Lieutenant Owens lacked reasonable

suspicion or probable cause, he was “not acting lawfully,” and she was,

therefore, permitted to use reasonable force to resist the arrest. 2 Id. at 14.

[11] Prior to trial, A.V. did not move to suppress the evidence, nor did she object at

trial to the admission of any of the evidence based on the Fourth Amendment

to the United States Constitution or Article 1, Section 11 of the Indiana

1 A.V. does not rely on Article 1, Section 11 of the Indiana Constitution. 2 The self-defense statute, Indiana Code Section 35-41-3-2(i), provides, in part:

A person is justified in using reasonable force against a public servant if the person reasonably believes the force is necessary to: (1) protect the person or a third person from what the person reasonably believes to be the imminent use of unlawful force; (2) prevent or terminate the public servant’s unlawful entry of or attack on the person’s dwelling, curtilage, or occupied motor vehicle; or (3) prevent or terminate the public servant’s unlawful trespass on or criminal interference with property lawfully in the person’s possession, lawfully in possession of a member of the person’s immediate family, or belonging to a person whose property the person has authority to protect.

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 6 of 15 Constitution. She did not argue that Lieutenant Owens lacked reasonable

suspicion until her closing argument.

[12] It is well-settled that the primary remedy for Fourth Amendment violations is

the exclusion of evidence obtained in violation of those rights. Shotts v. State,

925 N.E.2d 719, 723 (Ind. 2010). The defendant, however, must lodge a

“contemporaneous objection at the time the evidence is introduced at trial.”

Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010). Such an objection is required

regardless of whether the defendant has filed a pretrial motion to suppress. Id.

The failure to object to the evidence waives any challenge to the admission of

the evidence on appeal. Id.; see also Ind. Evid. R. 103(a) (noting that a party

may claim error in a ruling to admit evidence only if, among other things, the

party timely objects or moves to strike). Here, A.V. neither moved to suppress

the evidence before trial nor objected to the admission of the evidence at trial as

an unreasonable search and seizure in violation of the Fourth Amendment of

the United States Constitution.

[13] Even when the appellant fails to properly object at trial, certain issues may be

preserved for appeal under the fundamental error doctrine. Brown, 929 N.E.2d

at 207. Fundamental error “occurs only when the error ‘makes a fair trial

impossible or constitutes clearly blatant violations of basic and elementary

principles of due process presenting an undeniable and substantial potential for

harm.’” Strack v. State, 186 N.E.3d 99, 103 (Ind. 2022) (quoting Clark v. State,

915 N.E.2d 126, 131 (Ind. 2009)). It is an “extremely narrow doctrine.” Isom v.

State, 170 N.E.3d 623, 651 (Ind. 2021). A.V. on appeal, however, does not

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 7 of 15 argue that the admission of the evidence constitutes fundamental error.

Bradfield v. State, 192 N.E.3d 933, 935 (Ind. Ct. App. 2022) (citing App. R.

46(A)(8)(a)).

[14] We recognize, however, that, in Gaddie v. State, 10 N.E.3d 1249, 1253 (Ind.

2014), our Supreme Court addressed a Fourth Amendment challenge in the

context of a sufficiency of the evidence argument involving a conviction for

resisting law enforcement by fleeing. See also M.J. v. State, 19 N.E.3d 796, 798

(Ind. Ct. App. 2014) (relying upon Gaddie and addressing a Fourth Amendment

challenge in the context of a sufficiency of the evidence argument for a resisting

law enforcement by fleeing conviction), trans. denied; Briggs v. State, 873 N.E.2d

129, 132 (Ind. Ct. App. 2007) (addressing a Fourth Amendment challenge in

the context of a sufficiency of the evidence argument for a resisting law

enforcement by resisting conviction), trans. denied. In Gaddie, M.J., and Briggs,

the Courts did not mention whether the defendant objected at trial to the

evidence or raised the Fourth Amendment issue at trial. Accordingly,

notwithstanding A.V.’s failure to object at trial, we will address A.V.’s

arguments. Generally, however, a defendant must object during the trial to the

admission of the evidence to preserve the issue on appeal. Brown, 929 N.E.2d

at 207.

II. Sufficiency of the Evidence

[15] In sufficiency of the evidence arguments, we apply a “deferential standard of

review,” and we will “neither reweigh the evidence nor judge witness

credibility.” Carmack v. State, 200 N.E.3d 452, 459 (Ind. 2023). We examine Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 8 of 15 “all the evidence and reasonable inferences supporting the verdict,” and we

“will affirm the [adjudication] if probative evidence supports each element of

the crime beyond a reasonable doubt.” Id.

[16] Here, A.V. was adjudicated a delinquent for committing battery against a

public safety official, a Level 6 felony if committed by an adult, and resisting

law enforcement, a Class A misdemeanor if committed by an adult. The

offense of resisting law enforcement is governed by Indiana Code 35-44.1-3-

1(a), which provides: “A person who knowingly or intentionally: (1) forcibly

resists, obstructs, or interferes with a law enforcement officer or a person

assisting the officer while the officer is lawfully engaged in the execution of

the officer’s duties . . . commits resisting law enforcement, a Class A

misdemeanor[.]” (emphasis added). The offense of battery is governed by

Indiana Code Section 35-42-2-1, which provides that “a person who knowingly

or intentionally . . . touches another person in a rude, insolent, or angry manner

. . .commits battery[.]” The offense is a Level 6 felony if committed “against a

public safety official while the official is engaged in the official’s official duty .

. . .” I.C. § 35-42-2-1(e)(2) (emphasis added). A “law enforcement officer” is a

“public safety official.” I.C. § 35-42-2-1(a)(1).

[17] According to A.V., the officers “were not lawfully engaged in the execution of

their duties as officers, a required element of both offenses for which A.V. was

adjudicated and therefore could not be guilty of said offenses.” Appellant’s Br.

p. 13. In support of her argument that the officers were not lawfully engaged in

their duties, A.V. argues that they lacked reasonable suspicion to stop her. The

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 9 of 15 Fourth Amendment “‘permits an officer to initiate a brief investigative traffic

stop when he has ‘a particularized and objective basis for suspecting the

particular person stopped of criminal activity.’” Paul v. State, 189 N.E.3d 1146,

1154 (Ind. Ct. App. 2022) (quoting Kansas v. Glover, 140 S. Ct. 1183, 1187

(2020)), trans. denied; see also Terry v. Ohio, 392 U.S. 1, 21-22, 88 S. Ct. 1868

(1968). Accordingly, police may conduct a brief investigatory stop, or Terry

stop, based on “reasonable suspicion” that criminal activity is afoot. Paul, 189

N.E.3d at 1154.

[18] This Court has explained the reasonable suspicion standard as follows:

“‘Although a mere “hunch” does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.’” Glover, 140 S. Ct. [1183,] 1187 (quoting Navarette v. California, 572 U.S. 393, 397, 134 S. Ct. 1683, 188 L.Ed.2d 680 (2014)). . . .

Courts must consider the “totality of the circumstances” when determining the existence or non-existence of reasonable suspicion. See, e.g., United States v. Arvizu, 534 U.S. 266, 273, 122 S. Ct. 744, 750, 151 L.Ed.2d 740 (2002). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’” Id. (quoting [United States v.] Cortez, 449 U.S. [411,] 418, 101 S. Ct. 690[, 695] [(1981)]. Reasonable suspicion “depends on the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act.” Navarette, 572 U.S. at 402, 134 S. Ct. 1683 (quoting Ornelas v. United States, 517 U.S. 690, 695, 116 S. Ct. 1657, 134 L.Ed.2d 911 (1996)). We do not insist on “scientific certainty” but rather Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 10 of 15 permit officers to make “commonsense judgments and inferences about human behavior.” Illinois v. Wardlow, 528 U.S. 119, 125, 120 S. Ct. 673, 145 L.Ed.2d 570 (2000).

Id. at 1154-55. Additionally, “‘[a] determination that reasonable suspicion

exists . . . need not rule out the possibility of innocent conduct.’” 3 Arvizu, 534

U.S. at 277, 122 S. Ct. at 753.

[19] A.V. argues that Lieutenant Owens lacked reasonable suspicion to stop her.

Based on their conversation with the passenger from the vehicle involved in the

car chase, law enforcement believed that someone was driving to the

neighborhood to pick up the other fleeing suspect, who had last been seen near

Quillen Court. When Lieutenant Owens searched that location, he discovered

a vehicle that appeared out of place and to have only recently arrived: the

vehicle’s brake lights were on, the vehicle was parked at an angle to the curb,

and unlike the other vehicles in the area, this vehicle did not have frost on the

windows. The vehicle was also not registered to anyone in the neighborhood.

At this point, Lieutenant Owens had reasonable suspicion to briefly stop the

3 In contrast to the reasonable suspicion requirement for a Terry stop, probable cause is required for an arrest. Clark v. State, 994 N.E.2d 252, 261 (Ind. 2013). Probable cause exists when the officer “knows of facts and circumstances that would warrant a person of reasonable caution to believe” that the defendant committed an offense. I.G. v. State, 177 N.E.3d 75, 78 (Ind. Ct. App. 2021) (citing Thomas v. State, 81 N.E.3d 621, 626 (Ind. 2017)). Probable cause does not require certainty but only a “fair probability of criminal activity.” Mehring v. State, 884 N.E.2d 371, 380 (Ind. Ct. App. 2008), trans. denied. The amount of evidence necessary to satisfy the probable-cause requirement “is evaluated on a case-by-case basis.” I.G., 177 N.E.3d at 78 (citing Thomas, 81 N.E.2d at 626). Both Terry stops and arrests are distinguished from “‘consensual encounter[s],’ during which the individual ‘remains free to disregard the police officer and walk away.’” Briggs, 873 N.E.2d at 133 (quoting Bovie v. State, 760 N.E.2d 1195, 1198 (Ind. Ct. App. 2002)).

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 11 of 15 vehicle and asked investigatory questions. See, e.g., Paul, 189 N.E.3d at 1155

(affirming finding that police had reasonable suspicion to stop a vehicle, in part,

because vehicle was parked in the middle of the street at approximately 2:30

a.m. in front of a house police were surveilling as a part of a separate

investigation). Lieutenant Owens was not required to rule out all possible

innocent explanations for this constellation of circumstances to determine he

had legal authority to act as he did. See Arvizu, 534 U.S. at 277.

[20] Additionally, the cases on which A.V. relies present fact patterns

distinguishable from the facts here. A.V. relies on Brown v. Texas, 443 U.S. 47,

99 S. Ct. 2637 (1979); Tumblin v. State, 664 N.E.2d 783 (Ind. Ct. App. 1996);

M.J., 19 N.E.3d 796; Gaddie, 10 N.E.3d 1249; and Briggs, 873 N.E.2d 129.

Brown, Tumblin, M.J., and Gaddie essentially held that the mere fact than an

individual changes his or her behavior or moves in the opposite direction upon

noticing police in the area, even if the individual is in a high-crime area, is

insufficient to establish reasonable suspicion or probable cause to stop the

individual. See Brown, 443 U.S. at 48-49 (individual in high-crime area

appeared to have been “about to meet” another man in the alley until police

vehicle approached); Tumblin, 664 N.E.2d at 784-85 (individual in high-crime

area turned to walk in the opposite direction upon seeing police vehicle

approach); M.J., 19 N.E.3d at 799 (individual wearing a different color shirt

than the one for whom disturbance call was made turned and ran upon seeing

police who had been dispatched to the scene); Gaddie, 10 N.E.3d at 1252

(officer was dispatched to residence for a disturbance call and individual

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 12 of 15 continued to walk away from the residence despite officer’s orders). In Briggs,

officers were at Briggs’s apartment on “stand-by assistance” as Briggs’s

roommate retrieved his belongings, and this Court held that the officers lacked

reasonable suspicion to order Briggs to stop moving towards his bedroom on a

“hunch that he could have a weapon in his bedroom.” 873 N.E.2d at 131, 133.

[21] In contrast to these cases, this is a case in which law enforcement believed

someone was driving to the area to pick up a fleeing suspect and, a short time

later, discovered a vehicle that appeared out of place and in a location where

the suspect was known to have recently been. None of the cases upon which

A.V. relies provide guidance for this scenario.

[22] We conclude that Lieutenant Owens had reasonable suspicion to conduct a

brief investigatory stop of A.V. A.V. makes no argument that Lieutenant

Owens could not ask her to exit her vehicle as part of the stop. See State v.

Cunningham, 26 N.E.3d 21, 26 (Ind. 2015) (“A routine traffic stop presents

enough ‘concern for officer safety’ that it ‘may justify the minimal additional

intrusion of ordering a driver and passengers out of the car[.]’”) (internal

quotation marks omitted, citations omitted). Accordingly, we conclude A.V.’s

argument that the officers were not lawfully engaged in the execution of their

duties fails. 4

4 Because the officers had reasonable suspicion to stop A.V., we need not address A.V.’s argument that she was entitled to use reasonable force to resist the officers.

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 13 of 15 [23] When Lieutenant Owens repeatedly asked A.V. to get out of her vehicle, she

refused to comply with Lieutenant Owens, pulled away from his grasp, and had

to be forcibly removed from the vehicle. The body camera video of the

encounter shows A.V. flailing, screaming, cursing, and actively fighting her

removal from the vehicle. This evidence is sufficient to sustain A.V.’s

adjudication for resisting law enforcement. Next, A.V. repeatedly kicked

Lieutenant Owens, and this evidence is sufficient to sustain A.V.’s adjudication

for battery. Accordingly, we conclude that the evidence is sufficient to sustain

A.V.’s adjudications.

Conclusion [24] We conclude that A.V.’s Fourth Amendment rights were not violated, and the

evidence is sufficient to sustain A.V.’s adjudications. Accordingly, we affirm

the judgment of the juvenile court.

[25] Affirmed.

Mathias, J., and Weissmann, J., concur.

ATTORNEY FOR APPELLANT Audrey Lunsford Lunsford Legal, LLC Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 14 of 15 Kathy Bradley Deputy Attorney General Indianapolis, Indiana

Court of Appeals of Indiana | Opinion 23A-JV-1765 | February 9, 2024 Page 15 of 15