Alvin R. Hollis, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 23, 2015
• Docket: 02A03-1502-CR-43
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Oct 23 2015, 9:22 am regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark Olivero Gregory F. Zoeller Fort Wayne, Indiana Attorney General of Indiana Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Alvin R. Hollis, Jr., October 23, 2015 Appellant-Defendant, Court of Appeals Case No. 02A03-1502-CR-43 v. Appeal from the Allen Superior Court State of Indiana, The Honorable John F. Surbeck, Appellee-Plaintiff Jr., Judge Trial Court Cause No. 02D06-1405-FC-140

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 1 of 11 STATEMENT OF THE CASE

[1] Appellant-Defendant, Alvin R. Hollis, Jr. (Hollis), appeals his conviction for

resisting law enforcement, a Class D felony, Ind. Code § 35-44.1-3-

1(a)(3),(b)(1)(A) (2013); resisting law enforcement, a Class A misdemeanor,

I.C. § 35-44.1-3-1(a)(3) (2013); false informing, a Class B misdemeanor, I.C. §

35-44.1-2-3(d)(1) (2013); and failure to stop after an accident resulting in non-

vehicle property damage, a Class B misdemeanor, I.C. §§ 9-26-1-4; -8(b).

[2] We affirm.

ISSUES

[3] Hollis raises two issues on appeal, which we restate as follows:

(1) Whether the State presented sufficient evidence to support Hollis’

conviction; and

(2) Whether Hollis’ sentence is inappropriate in light of the nature of his offense

and his character.

FACTS AND PROCEDURAL HISTORY

[4] At approximately 2:00 a.m. on May 10, 2014, Officer Robert Warstler (Officer

Warstler) of the Fort Wayne Police Department initiated a traffic stop on State

Street in Fort Wayne, Allen County, Indiana, after observing a 2008 silver

Dodge Caliber exceeding the posted speed limit by fifteen miles per hour.

Officer Warstler approached the vehicle and, after asking the driver to produce

his driver’s license and vehicle registration, explained that his reason for

stopping the vehicle was due to a speed limit violation. Officer Warstler

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 2 of 11 observed that the driver was a black male with long dreadlocks and some facial

hair.

[5] The driver handed Officer Warstler a printout copy of the vehicle registration,

which did not have the registered owner’s name printed on it. He also stated

that he did not have his driver’s license on him but identified himself as

“Shaqueal O’Neal Arrington.” (State’s Exh. 1). Officer Warstler requested the

spelling of his name, and the driver hesitantly stated, “C-H-A-Q-A” before

trailing off. (State’s Exh. 1). Officer Warstler asked the driver for his “real

name,” to which the driver again answered that it was Shaqueal Arrington.

(State’s Exh. 1). In a second attempt to spell his name for the officer, the driver

made it as far as “C-H-A-Q-U-A.” (State’s Exh. 1). When asked his date of

birth, the driver hesitated before answering October 13, 1989. The driver

indicated that the vehicle belonged to his girlfriend, “Ashley.” (State’s Exh. 1).

Officer Warstler instructed the driver to “sit tight” while he returned to his

squad car. (State’s Exh. 1).

[6] Moments after Officer Warstler returned to his squad car in order to run the

driver’s information through his computer, the driver sped away. Officer

Warstler activated his lights and sirens and radioed for assistance as he pursued

the vehicle through the city streets. “The vehicle was driving recklessly fast to

the point that it would have been unsafe for [Officer Warstler] to maintain that

speed.” (Tr. p. 138). For several blocks, the driver hurtled through

intersections without regard for stop signs or other traffic laws. At some point

the driver attempted to make a left turn, but he turned too wide and ran over

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 3 of 11 the curb, slamming into a tree in Lakeside Park. As Officer Warstler

approached the scene of the accident, he observed that the driver had exited the

vehicle and was fleeing on foot through the park. By this time, other officers

had arrived to assist in the search, but they were unable to locate the driver.

[7] When Officer Warstler returned to the crashed vehicle, he discovered a loaded

handgun on the passenger-side floorboard. He also located a traffic ticket that

had been issued to Hollis several months prior. Officer Warstler ran a check on

the license plate and found that it was jointly registered to Hollis and “A[.]

Wilson.” (State’s Exh. 3). “It appeared that [someone named] Ashley signed

the registration.” (Tr. p. 160). Because searching for the name “Shaqueal

Arrington” (using multiple spelling variations) did not yield any results that

matched the driver of the vehicle, Officer Warstler searched for Hollis. 1 Upon

seeing Hollis’ photograph, Officer Warstler “[i]mmediately” identified him as

the driver of the vehicle. (Tr. p. 161). Officer Warstler also noted that Hollis’

birthday—September 12, 1988—is “one month, one day, and one year off of”

the date provided by the driver of the vehicle. (Tr. p. 164).

[8] On May 27, 2014, the State filed an Information, charging Hollis with Count I,

carrying a handgun without a license, a Class C felony, I.C. §§ 35-47-2-1; -

23(c)(2)(A)(i) (2013); Count II, resisting law enforcement, a Class D felony, I.C.

1 We use the spelling “Shaqueal Arrington” throughout this decision based on the results of the information check conducted by Officer Warstler, who—after trying multiple spelling variations of the name provided by the driver—located a “Shaqueal Arrington” with a date of birth of November 20, 1992, and a photograph that did not match the driver of the vehicle. (Tr. p. 159).

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 4 of 11 § 35-44.1-3-1(a)(3),(b)(1)(A) (2013); Count III, resisting law enforcement, a

Class A misdemeanor, I.C. § 35-44.1-3-1(a)(3) (2013); Count IV, false

informing, a Class B misdemeanor, I.C. § 35-44.1-2-3(d)(1) (2013); and Count

V, failure to stop after an accident resulting in non-vehicle property damage, a

Class B misdemeanor, I.C. §§ 9-26-1-4; -8(b).

[9] On December 2, 2014, the trial court conducted a jury trial. During his case-in-

chief, Hollis testified that he was not driving his Dodge Caliber at the time these

offenses occurred; rather, he claimed that he was out of town and had left the

vehicle parked at his mother’s house. At the close of the evidence, the jury

returned a guilty verdict for Counts II, III, IV, and V, and the trial court entered

a judgment of conviction on the same. As to Count I, carrying a handgun

without a license as a Class C felony, the trial court entered a judgment of

acquittal. On January 5, 2015, the trial court held a sentencing hearing. The

trial court imposed a sentence of three years, with two years executed and one

year suspended, on Count II; one year on Count III; 180 days on Count IV; and

180 days on Count V. The trial court ordered all sentences to run concurrently,

resulting in an aggregate sentence of three years, of which two years would be

executed in the Indiana Department of Correction and one year would be

suspended to probation.

[10] Hollis now appeals. Additional facts will be provided as necessary.

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 5 of 11 DISCUSSION AND DECISION

I. Sufficiency of the Evidence

[11] Hollis claims that the State presented insufficient evidence to support his

conviction. When reviewing a claim of insufficient evidence, it is well

established that our court does not reweigh evidence or assess the credibility of

witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). Instead, we

consider all of the evidence, and any reasonable inferences that may be drawn

therefrom, in a light most favorable to the verdict. Id. We will uphold the

conviction “‘if there is substantial evidence of probative value supporting each

element of the crime from which a reasonable trier of fact could have found the

defendant guilty beyond a reasonable doubt.’” Id. (quoting Davis v. State, 813

N.E.2d 1176, 1178 (Ind. 2004)).

[12] Hollis contends that there is insufficient evidence to sustain his conviction

because the State “failed to prove the identity elements in each of the [C]ounts.”

(Appellant’s Br. p. 10). As an element for each of the four charges at issue, the

State was required to prove beyond a reasonable doubt that it was Hollis who

committed the offense. In arguing that the State failed to meet its burden,

Hollis points out that the driver of the vehicle identified himself as Shaqueal

Arrington—a black male with long braided hair whose photograph “look[s]

extremely similar” to that of Hollis. (Appellant’s Br. p. 11). Furthermore,

Hollis argues that Officer Warstler’s “face to face interaction with the driver of

the vehicle in question was maybe only fifteen (15) to twenty (20) seconds or

more.” (Appellant’s Br. p. 11). Finally, Hollis cites his own testimony, in

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 6 of 11 which he denied driving the vehicle at the time of the offenses, positing instead

that he left the keys in the vehicle because he believed it was going to be

repossessed, so “[i]t was possible that the vehicle was stolen.” (Appellant’s Br.

p. 11).

[13] In this case, Officer Warstler unequivocally identified Hollis as the perpetrator

of the charged crimes, and it is well established that “[a] single eyewitness’

testimony is sufficient to sustain a conviction.” Emerson v. State, 724 N.E.2d

605, 609-10 (Ind. 2000). At trial, Officer Warstler testified that during the

traffic stop, Hollis’ nervousness and evasiveness about his identity—namely

Hollis’ inability to spell his name and recall his date of birth—prompted Officer

Warstler to “pa[y] extra special attention to facial features, things that would

help me identify [the driver] when I went back to my car to try and look up the

name and match a photo that happened to be in our system to the name that

was provided.” (Tr. p. 136). Although Officer Warstler’s search for a

“Shaqueal Arrington” in his system yielded a photograph of a black male with

long braided hair, much like Hollis’ hair, Officer Warstler immediately

recognized that the facial features of Shaqueal Arrington did not match those of

the driver. Moreover, Shaqueal Arrington’s birthday was November 20,

1992—not October 13, 1989, as the driver indicated. However, as soon as

Officer Warstler retrieved a photograph of Hollis, he confirmed that there was

not a doubt in his mind that it was Hollis who had been driving the vehicle and

who led the police on a dangerous pursuit.

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 7 of 11 [14] We find Hollis’ contention that his conviction should be reversed based on his

testimony that he was not driving the vehicle is nothing more than an attempt

to have the evidence reweighed in his favor. It is not the role of this court to

“weigh the evidence or resolve questions of credibility when determining

whether the identification evidence is sufficient to sustain a conviction.”

Emerson, 724 N.E.2d at 610. During the trial, Hollis testified that he drove his

“silver Dodge Caliber” home from work just a few hours prior to Officer

Warstler’s traffic stop. (Tr. p. 187). However, he claimed that he parked the

vehicle at his mother’s house and left the keys in the console, believing it was

going to be repossessed, and that he and his brother subsequently left for

Illinois. Despite his claim that the vehicle was subject to immediate

repossession, the State presented evidence that the vehicle contained numerous

items of personal property, including cellular phones, children’s booster seats,

loose change, shoes, and clothing. In addition, the driver of the vehicle

informed Officer Warstler that his girlfriend, Ashley, owned the vehicle, and

Hollis testified that he jointly owned the vehicle with “Ashley Wilson, my ex-

wife.” (Tr. p. 187). Accordingly, because it was entirely within the province of

the jury to believe Officer Warstler’s positive identification of Hollis while

discrediting Hollis’ testimony that he was not driving the vehicle, we affirm

Hollis’ conviction.

II. Appropriateness of Sentence

[15] Hollis also claims that his sentence is inappropriate in light of the nature of the

offense and his character. In this case, Hollis was convicted of one Class D

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 8 of 11 felony, one Class A misdemeanor, and two Class B misdemeanors. The trial

court imposed the maximum sentence for each of the four charges and ordered

them to run concurrently, resulting in an aggregate term of three years, with

two years executed and one year suspended to probation. See I.C. § 35-50-2-

7(a) (fixing the maximum sentence for a Class D felony at three years); I.C. §

35-50-3-2 (setting the maximum sentence for a Class A misdemeanor at one

year); and I.C. § 35-50-3-3 (providing for a maximum sentence of 180 days on a

Class B misdemeanor).

[16] The matter of sentencing “is principally a discretionary function in which the

trial court’s judgment should receive considerable deference.” Cardwell v. State,

895 N.E.2d 1219, 1222 (Ind. 2008). Even where the trial court has imposed a

sentence that is authorized by law, as in this case, our court may nevertheless

revise the sentence if, “after due consideration of the trial court’s decision, [we

find] that the sentence is inappropriate in light of the nature of the offense and

the character of the offender.” Ind. Appellate Rule 7(B). “The principal role of

appellate review should be to attempt to leaven the outliers, and identify some

guiding principles for trial courts and those charged with improvement of the

sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell, 895 N.E.2d at 1225. “‘[R]easonable minds may differ’ on the

appropriateness of a sentence[,]” but our determination of whether a sentence is

inappropriate turns “on our sense of the culpability of the defendant, the

severity of the crime, the damage done to others, and myriad other factors that

come to light in a given case.” Parks v. State, 22 N.E.3d 552, 555 (Ind. 2014)

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 9 of 11 (quoting Buchanan v. State, 767 N.E.2d 967, 970 (Ind. 2002)); Cardwell, 895

N.E.2d at 1224. Ultimately, “the length of the aggregate sentence and how it is

to be served are the issues that matter.” Cardwell, 895 N.E.2d at 1224. Hollis

bears the burden of persuading our court that his sentence is inappropriate.

Sanquenetti v. State, 917 N.E.2d 1287, 1289 (Ind. Ct. App. 2009).

[17] In the present case, the nature of the offense is that Hollis was pulled over for a

traffic infraction—speeding. He subsequently attempted to hinder Officer

Warstler’s ability to complete the traffic stop by providing a false name and

birthdate. Despite Officer Warstler’s clear instruction to “sit tight,” Hollis sped

away in his vehicle, leading Officer Warstler on a high speed chase through the

city streets without regard for stop signs or other traffic laws. (State’s Exh. 1).

The vehicle pursuit only ended when Hollis lost control of his vehicle and

slammed into a tree; yet, he abandoned his vehicle and fled on foot. Hollis

acted with complete disregard for the safety of other motorists and

pedestrians—such as those people Officer Warstler observed walking their dog

in the park as he pursued Hollis. Thus, it is most fortunate that the severity of

damage Hollis inflicted was limited to a tree because the consequences of his

reckless and selfish conduct could easily have been tragic.

[18] As to the character of the offender, Hollis has a criminal history that consists of

four prior misdemeanor convictions. While this is a relatively minor criminal

history compared to others this court has observed, it nevertheless demonstrates

his disregard for the laws that govern our society. The fact that Hollis was not

leading a law-abiding life is further evidenced by the fact that he apparently did

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 10 of 11 not possess a valid driver’s license at the time of the present offenses. It is also

noteworthy that two of his prior crimes are similar in nature to the present

offenses: resisting law enforcement in 2011 and operating a vehicle without

ever having received a license in 2014. This indicates that Hollis’ prior

suspended sentences were insufficient to deter him from committing such acts

in the future, and a harsher penalty is warranted.

[19] Hollis now contends that “[t]he imposition by the trial court of an executed

sentence above the advisory sentence has the unintended result of undue

hardship to [his] [four] dependents.” (Appellant’s Br. p. 13). However, we find

Hollis’ argument unpersuasive in light of the fact that his PSI report indicates

that he is not paying any child support for at least two of his children, and

Hollis had not otherwise demonstrated how his children would suffer as a result

of his incarceration. Accordingly, we find that Hollis has failed to satisfy his

burden of establishing that his sentence is inappropriate.

CONCLUSION

[20] Based on the foregoing, we conclude that the State presented sufficient evidence

beyond a reasonable doubt to prove that Hollis was the perpetrator of the

crimes. We further conclude that Hollis’ sentence is not inappropriate in light

of the nature of the offense and his character.

[21] Affirmed.

[22] Brown, J. and Altice, J. concur

Court of Appeals of Indiana | Memorandum Decision 02A03-1502-CR-43 | October 23, 2015 Page 11 of 11