Deangelo LaJuan Curry v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: March 7, 2014
• Docket: 02A05-1308-CR-432
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before Mar 07 2014, 5:36 am 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:

GREGORY L. FUMAROLO GREGORY F. ZOELLER Fort Wayne, Indiana Attorney General of Indiana

ANDREW FALK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

DEANGELO LAJUAN CURRY, ) ) Appellant-Defendant, ) ) vs. ) No. 02A05-1308-CR-432 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE ALLEN SUPERIOR COURT The Honorable Wendy W. Davis, Judge Cause No. 02D04-1210-FD-1508

March 7, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

BROWN, Judge Deangelo Lajuan Curry appeals his convictions for possession of marijuana as a

class D felony and resisting law enforcement as a class D felony. Curry raises two issues

which we revise and restate as whether the evidence is sufficient to support his

convictions. We affirm.

FACTS AND PROCEDURAL HISTORY

At approximately 11:30 p.m. on October 20, 2012, Fort Wayne Police Officer

Craig Wise, who was wearing his police uniform, was on patrol in his marked police

vehicle near Broadway Joe’s bar. Officer Wise observed a vehicle with paper license

plates drive slowly by his patrol vehicle and saw the two black male occupants glance

over at him. He observed the vehicle stop and saw the driver exit the vehicle and walk

toward the front door of the bar, and, when he noticed that no one was in the passenger

seat, Officer Wise exited his police vehicle and walked around the corner of the building

to see if the passenger went behind the bar.

Officer Wise walked around the next corner of the building to an alley and

observed Curry standing there. Curry looked at him and then took “some steps back real

quick and pat[ted] his waist real quick.” Transcript at 75. Officer Wise asked Curry

what he was doing back there, and, fearing that Curry had a gun because he kept patting

his waist, the officer asked him to raise his hands. Officer Wise went to “sneak behind

[Curry] real quick,” started patting him down, and asked “[w]hat are you doing back

here.” Id. Curry replied that he was waiting for his brother.

As Officer Wise patted the area around Curry’s waist, he noticed a large ball and

asked “[w]hat have you got right here.” Id. Curry hesitated, did not answer, and then 2 “tried to push off [Officer Wise] real quick.” Id. Officer Wise held onto Curry’s shirt,

and Curry turned and slapped Officer Wise’s glasses off his face, knocking the glasses to

the ground and breaking them. Officer Wise tackled Curry to the ground and ordered

him to place his hands behind his back, but Curry tried to push off of the ground. Officer

Wise called for help using his radio.

Tyrone Fluker, the security officer at Broadway Joe’s that night, came around the

building, heard Officer Wise order Curry to the ground, and observed him struggling with

Curry. Fluker yelled at Curry to stay on the ground, but Curry continued to attempt to

break away from Officer Wise and Fluker. Fluker helped restrain Curry until additional

officers arrived about three minutes later. Officer Chris Hoffman, wearing his full police

uniform, arrived at the scene and observed that Officer Wise was attempting to restrain

Curry on the ground and that Curry was “[o]ut of control,” and “screaming, attempt[ing]

to push up off the ground,” and “twisting his upper body attempting to get away from

Officer Wise.” Id. at 126. Officers Hoffman and Troy Jester assisted with restraining

and handcuffing Curry. Officers Hoffman and Jester patted him down and found two

bags of a substance later determined to be 97.3 grams of marijuana. Officer Wise’s

knuckles and knees were bloody as a result of the struggle.

On October 25, 2012, the State charged Curry with possession of marijuana as a

class D felony and resisting law enforcement as a class D felony. A jury found him

guilty on both counts. The court sentenced him to three years for each conviction, to be

served concurrent with each other, and ordered that two and one-half years be executed in

the Department of Correction and six months served on probation. 3 DISCUSSION

The issue is whether the evidence is sufficient to sustain Curry’s convictions for

possession of marijuana and resisting law enforcement. When reviewing claims of

insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of

witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we

look to the evidence and the reasonable inferences therefrom that support the verdict. Id.

We will affirm the conviction if there exists evidence of probative value from which a

reasonable trier of fact could find the defendant guilty beyond a reasonable doubt. Id. It

is well established that circumstantial evidence will be deemed sufficient if inferences

may reasonably be drawn that enable the trier of fact to find the defendant guilty beyond

a reasonable doubt. Pratt v. State, 744 N.E.2d 434, 437 (Ind. 2001). It is the function of

the trier of fact to resolve conflicts of testimony and to determine the weight of the

evidence and the credibility of the witnesses. Houston v. State, 997 N.E.2d 407, 409

(Ind. Ct. App. 2013).

A. Possession of Marijuana

The offense of possession of marijuana is governed by Ind. Code § 35-48-4-11,

which provides in part that “[a] person who . . . knowingly or intentionally possesses

(pure or adulterated) marijuana . . . commits possession of marijuana” and that “the

offense is a Class D felony if the amount involved is more than thirty (30) grams of

marijuana . . . .” Thus, to convict Curry of possession of marijuana as a class D felony,

the State needed to prove that he knowingly or intentionally possessed more than thirty

grams of marijuana. 4 Curry contends that the evidence was insufficient to show that he possessed the

marijuana. Specifically, he notes that the officers claimed that two baggies of marijuana

were found on his person, but there was no corroboration by civilian eyewitnesses, and

that he “would have been patted down by . . . Flucker [sic], which would have revealed

any contraband [he] was carrying.” Appellant’s Brief at 11. He does not dispute that the

substance was marijuana or that it weighed over thirty grams. The State argues that

Fluker testified that he had not patted down Curry the evening of the incident, that Curry

relies solely on his own testimony and ignores all contradictory testimony, and that this

Court may not reweigh the evidence.

We agree that Curry’s arguments amount to an invitation for this court reweigh the

evidence, assess the credibility of the witnesses, and resolve conflicts in testimony, which

we will not do. See Jordan, 656 N.E.2d at 817; Houston, 997 N.E.2d at 409. The record

reveals that Officer Wise walked around the corner of the building and that Curry looked

at him and took “some steps back real quick and pat[ted] his waist real quick.”

Transcript at 75. Officer Wise feared that Curry had a gun because he kept patting his

waist. As Officer Wise was patting him down, he noticed a large ball and asked Curry

about it, at which point Curry hesitated and then attempted to break free. After he was

restrained, the police patted him down and discovered two bags of marijuana with a

combined weight of 97.3 grams. To the extent that Curry argues that he entered the bar

and that Fluker, as the bar’s security officer, would have patted him down which would

have revealed any drugs he was carrying, we observe that Fluker testified that he patted

down everybody that came through the bar’s front door and that Curry was not in the bar 5 prior to 11:30 p.m. on the night of the incident, and we note it is the function of the trier

of fact to resolve conflicts of testimony and to determine the weight of the evidence and

the credibility of the witnesses. See Houston, 997 N.E.2d at 409.

Based upon the record, we conclude that evidence of probative value existed from

which the jury could conclude beyond a reasonable doubt that Curry was guilty of

possession of marijuana as a class D felony.

B. Resisting Law Enforcement

Ind. Code 35-44.1-3-1(a) provides that “[a] person who knowingly or intentionally

. . . 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 . . . .” Ind. Code §

35-44.1-3-1(b) provides that the offense is a class D felony if “while committing any

offense described in subsection (a), the person draws or uses a deadly weapon, inflicts

bodily injury on or otherwise causes bodily injury to another person, or operates a vehicle

in a manner that creates a substantial risk of bodily injury to another person . . . .” “A

person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his

conscious objective to do so.” Ind. Code § 35-41-2-2(a). “A person engages in conduct

‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he

is doing so.” Ind. Code § 35-41-2-2(b).

Curry asserts that the evidence was insufficient to show that he knew or was aware

to a high degree of probability that Officer Wise was a police officer, that nowhere in

Officer Wise’s testimony does he say he identified himself as a police officer by audible 6 means, and that, although Officer Wise was wearing his police uniform, there was no

evidence that Curry could see what the officer was wearing. The State maintains that the

evidence was sufficient to support the jury’s verdict as, when Curry looked at Officer

Wise, he took some steps back and patted his waist, that Officer Wise started to pat him

down and asked what he was doing, and that “even if [Curry] did not initially recognize

that [Officer] Wise was a police officer, by all accounts [Curry] was ‘out of control’ and

continued struggling against [Officer] Wise and the other officers who joined him for

several minutes, long after he should have realized that it was law enforcement officers

who were attempting to restrain him.” Appellee’s Brief at 10.

At trial, Curry testified that he did not know that Officer Wise was a police officer

when he grabbed him from behind. However, Officer Wise testified that he was wearing

his police uniform and that when he first walked around the corner, Curry looked at him

and then took “some steps back real quick and pat[ted] his waist real quick.” Transcript

at 75. Officer Wise asked him what he was doing back there and then asked him to raise

his hands. Officer Wise then went to “sneak behind” Curry, started patting him down,

and asked “[w]hat are you doing back here.” Id. Curry then replied that he was waiting

for his brother. When Officer Wise asked Curry about the item near his waist, Curry

attempted to “push off” from the officer. Id. Officer Wise testified that he ordered Curry

to place his hands behind his back, and Fluker testified that Officer Wise ordered Curry

to the ground. Officer Wise called for help using his radio, and Officers Hoffman and

Jester arrived at the scene. Officer Hoffman testified that he was in full police uniform,

that he observed Officer Wise attempting to maintain control of Curry, and that he and 7 Officer Jester helped restrain Curry so that he would not kick the officers. While Curry

claims that he did not know that Officer Wise was a law enforcement officer, we note

that it is for the trier of fact to determine the credibility of the witnesses and assess their

testimony.

Based upon our review of the testimony most favorable to the conviction, we

conclude that a reasonable jury could have determined and inferred from the evidence

that Curry resisted Officer Wise knowingly or intentionally and that sufficient evidence

exists from which the jury could find Curry guilty beyond a reasonable doubt of resisting

law enforcement as a class D felony. See Bernard v. State, 540 N.E.2d 23, 27 (Ind. 1989)

(addressing the appellant’s claim that he did not act knowingly or intentionally, observing

that the police officer was in uniform and that the appellant was required to turn in order

to kick the officer, and holding that a trier of fact could reasonably conclude beyond a

reasonable doubt that the appellant was aware of a high probability that he was kicking a

law enforcement officer engaged in carrying out his official duties and that the evidence

of resisting law enforcement was sufficient).

CONCLUSION

For the foregoing reasons, we affirm Curry’s convictions for possession of

marijuana as a class D felony and resisting law enforcement as a class D felony.

Affirmed.

ROBB, J., and BARNES, J., concur.