MEMORANDUM DECISION FILED Feb 21 2018, 8:47 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as CLERK Indiana Supreme Court precedent or cited before any court except for the Court of Appeals and Tax Court purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David M. Payne Curtis T. Hill, Jr. Ryan & Payne Attorney General of Indiana Marion, Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dillon D. Scarbrough, February 21, 2018
Appellant-Defendant, Court of Appeals Case No. 27A02-1706-CR-1243
v. Appeal from the Grant Superior Court State of Indiana, The Hon. Warren Haas, Judge Trial Court Cause Nos. Appellee-Plaintiff. 27D03-1606-F6-248 27D03-1607-F6-275
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 1 of 18 Case Summary [1] In this consolidated appeal, Appellant-Defendant Dillon D. Scarbrough appeals
from convictions and sentences arising out of two incidents. In June of 2016, a
police officer noticed Scarbrough approaching in his truck from behind at a
high rate of speed. When the officer directed Scarbrough to pull into a nearby
parking lot, Scarbrough sped off instead, eventually stopping in a dark alley.
When the officer followed, Scarbrough approached on foot, screaming, and
forcibly resisted the officer. In cause number 27D03-1606-F6-248 (“Cause No.
248”), Scarbrough was charged with and convicted of Level 6 felony resisting
law enforcement and Class A misdemeanor resisting law enforcement.
[2] In July of 2016, Scarbrough appeared outside the Grant County Jail restraining
a person he claimed to be arresting. When officers instead decided to arrest
Scarbrough on several charges, he told the jail officers who were booking him
that he planned to perform citizen’s arrests on several officers and any who
resisted would be killed. In cause number 27D03-1607-F6-275 (“Cause No.
275”), Scarbrough was charged with and convicted of Level 6 felony
intimidation. Following a combined sentencing hearing, the trial court
imposed an aggregate sentence of four years of incarceration. Scarbrough
appealed in both Cause Nos. 248 and 275, and this court ordered the appeals
consolidated. Scarbrough contends that the trial court abused its discretion in
admitting certain evidence, the State failed to introduce sufficient evidence to
sustain his convictions, and his sentence is inappropriately harsh. Because we
disagree, we affirm.
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 2 of 18 Facts and Procedural History I. Cause No. 248 [3] At approximately 10:00 p.m. on June 25, 2016, Marion Police Sergeant
Benjamin Williams noticed a General Motors truck “bearing down on [him] at
a high rate of speed from behind.” Cause No. 248 Tr. Vol. I p. 125. When
Sergeant Williams activated his lights to the rear, the truck, driven by
Scarbrough, pulled alongside. Scarbrough rolled his window down and
screamed, “Are you one of the f****** cops that stopped me the other day?”
Cause No. 248 Tr. Vol. I p. 127. When Sergeant Williams directed Scarbrough
to pull into a nearby parking lot, Scarbrough immediately drove away from
him, “full on the accelerator.” Cause No. 248 Tr. Vol. I p. 130. Sergeant
Williams began pursuit, activating his vehicle’s red and blue lights. After a
short chase, Scarbrough pulled his truck “very deep” into a “dark alley[,]”
passing by an easily-accessible, well-lit parking lot. Cause No. 248 Tr. Vol. I p.
131.
[4] After Scarbrough stopped his truck, he “jumped out of the passenger side and
ran at [Sergeant Williams’s] squad car[,]” screaming incomprehensibly. Cause
No. 248 Tr. Vol. I p. 132. Sergeant Williams told Scarbrough to stop; met him
near the front fender of his police vehicle; and forced him down, face-forward,
on the hood. As Sergeant Williams held Scarbrough down, Scarbrough was
“fighting, resisting, throwing elbows, that sort of thing[.]” Cause No. 248 Tr.
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 3 of 18 Vol. I p. 134. After Marion Police Officer Kyle Griffith arrived, Scarbrough
was subdued.
[5] On June 27, 2016, the State charged Scarbrough in Cause No. 248 with Level 6
felony resisting law enforcement with a vehicle and Class A misdemeanor
forcibly resisting law enforcement. During Scarbrough’s trial, Sergeant
Williams testified that the location where Scarbrough stopped his truck caused
him “lots of concerns” and that it was not a usual traffic stop. Cause No. 248
Tr. Vol. I p. 143. When asked to express what his concerns were, Sergeant
Williams explained as follows, without objection:
[T]his in police training would be referred to as a fatal funnel. This is a situation where there is nowhere to escape to as far as put in a police situation where you know safety of the police office[r]. This is a[sic] your stuck between two (2) buildings, and keep in mind, this is taken during the daytime. This was dark. Very dark after 10:00 o’clock at night. There was nowhere to go it was literally being trapped between two (2) buildings. Cause No. 248 Tr. Vol. I p. 143.
[6] Officer Griffith was asked whether he saw any issues with the way the vehicles
were stopped in the alley. Scarbrough objected to the question on relevancy
grounds, to which the State responded that it was relevant to Scarbrough’s
intent. Officer Griffith stated:
[T]his is not an ideal situation for the officer. Essentially he’s placed in a larger version of what we call the fatal funnel. Which is generally referred to when you’re talkin[] about a doorway, or you’re entering a house, or another room. We call it the fatal funnel because if somebody’s gonna shoot you it’s generally
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 4 of 18 gonna be through that doorway. So whenever you’re approaching you wanna try to be out of the main straight on view of the door. You wanna try to do it at an angle cut we’ll call it slicing the pie kind of checking you know the next room or whatever you’re looking at. Slowly so that you can make sure the threat isn’t there, but you would never wanna walk up to a door head face or straight on because you’re essentially getting in that funnel. Well this is essentially a larger version of it with the officer being you know in this funnel between these two (2) buildings. [7] Cause No. 248 Tr. Vol. I pp. 187–88. The jury found Scarbrough guilty as
charged.
II. Cause No. 275 [8] At approximately 2:00 p.m. on July 1, 2016, Grant County Sherriff’s Jail
Officer Roberta Stitnicky was on duty at the Grant County Jail when she heard
tires screeching outside followed by pounding on an entrance generally used by
officers to bring prisoners in. Jail Officer Stitnicky saw three men outside, one
of whom yelled for her to come out. Instead of immediately going outside, Jail
Officer Stitnicky radioed for assistance. Scarbrough, who was one of the three
men, stated that he was making a citizen’s arrest. Scarbrough was restraining
one of the other men and yelled at him, “[Y]ou keep stealing from me… I let
you work it off and why would you just keep stealing from me?” Cause No.
275 Tr. Vol. I p. 130. Scarbrough told the man to “shut the f*** up” or
Scarbrough would punch him in the mouth. Cause No. 275 Tr. Vol. I p. 131.
Jail Officer Stitnicky did eventually walk outside with another jail officer, and a
few minutes later, Grant County Sheriff’s Deputies arrived to assist.
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 5 of 18 Scarbrough, who was wearing brass knuckles, was arrested on suspicion of
reckless driving, battery, and criminal confinement.
[9] While Scarbrough was being booked by Jail Officers Stitnicky and Andrew
Turner, he said that he was going to start arresting officers and stated that “if
they resisted he would have them killed.” Cause No. 275 Tr. Vol. I p. 133.
Scarbrough was aggressive with his threat, and Jail Officers Stitnicky and
Turner both took it seriously. On July 11, 2016, the State charged Scarbrough
with, inter alia, Level 6 felony intimidation, and on April 19, 2017, a jury found
Scarbrough guilty of that charge.
III. Common Procedural Facts [10] On May 16, 2017, the trial court conducted a combined sentencing hearing for
Cause Nos. 248 and 275. In Cause No. 248, the trial court sentenced
Scarbrough to two years of incarceration for Level 6 felony resisting law
enforcement with a vehicle and 266 days for Class A misdemeanor forcibly
resisting law enforcement, to be served concurrently. In Cause No. 275, the
trial court sentenced Scarbrough to two years of incarceration for Level 6 felony
intimidation, to be served consecutively to his sentence in Cause No. 248.
Scarbrough filed separate notices of appeal in Cause Nos. 248 and 275, and, on
November 13, 2017, this court ordered that the appeals be consolidated.
Discussion and Decision
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 6 of 18 I. Admission of Evidence in Cause No. 248 [11] Scarbrough challenges the trial court’s admission of testimony from two police
officers regarding “fatal funnels.” The State contends that the evidence is
relevant to prove Scarbrough’s intent to flee, while Scarbrough contends that it
is unduly prejudicial. We will only reverse a trial court’s decision on the
admissibility of evidence upon a showing of an abuse of that discretion. Curley
v. State, 777 N.E.2d 58, 60 (Ind. Ct. App. 2002). An abuse of discretion may
occur if the trial court’s decision is clearly against the logic and effect of the
facts and circumstances before the court, or if the court has misinterpreted the
law. Id. The Court of Appeals may affirm the trial court’s ruling if it is
sustainable on any legal basis in the record, even though it was not the reason
enunciated by the trial court. Moore v. State, 839 N.E.2d 178, 182 (Ind. Ct. App.
2005). We do not reweigh the evidence and consider the evidence most
favorable to the trial court’s ruling. Hirsey v. State, 852 N.E.2d 1008, 1012 (Ind.
Ct. App. 2006). “Errors in the admission of evidence are to be disregarded as
harmless unless they affect the substantial rights of the defendant.” Goudy v.
State, 689 N.E.2d 686, 694 (Ind. 1997).
[12] Scarbrough did object to Officer Griffith’s testimony; however, even if we
assume that the admission of Officer Griffith’s testimony was an abuse of
discretion, it could only be considered harmless error in light of the
overwhelming evidence of Scarbrough’s guilt. See, e.g., Manetta v. State, 527
N.E.2d 178, 179 (Ind. 1988) (“We find it unnecessary to address this issue, for
assuming arguendo the evidence was erroneously admitted, such admission
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 7 of 18 would be harmless where the evidence supporting the guilty finding was not
only substantial but overwhelming.”). The evidence regarding Scarbrough’s
actions is not in dispute, and clearly supports a conviction for resisting law
enforcement. Indeed, Scarbrough’s testimony corroborates the testimony that
he bypassed other parking lots before pulling deeply into the alley, contending
only that he believed the alley to be the first convenient stopping place. In other
words, Scarbrough admits that did not pull over immediately upon being told
to, nor did he pull over where he was directed to. In light of the overwhelming
evidence that Scarbrough fled from Sergeant Williams, the admission of Officer
Griffith’s testimony, even if erroneous, could only be considered harmless.
[13] As for Sergeant Williams’s testimony, Scarbrough did not object to it and has
therefore waived any argument against it for appellate consideration. The
purpose of the contemporaneous objection rule is to promote a fair trial by
preventing a party from sitting idly by and appearing to assent to an offer of
evidence or ruling by the court only to cry foul when the outcome goes against
him. Purifoy v. State, 821 N.E.2d 409, 412 (Ind. Ct. App. 2005), trans. denied
(citation omitted). Scarbrough does not attempt to avoid the effects of his
waiver by claiming that the admission amounted to fundamental error, which is
“a clearly blatant violation of basic and elementary principles, where the harm
or potential for harm cannot be denied, and which violation is so prejudicial to
the rights of the defendant as to make a fair trial impossible.” Jewell v. State, 887
N.E.2d 939, 942 (Ind. 2008). Even if Scarbrough had made a claim of
fundamental error, it would not have helped him. As stated earlier, in light of
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 8 of 18 the evidence of Scarbrough’s guilt of Level 6 felony resisting law enforcement,
any error in the admission of Sergeant Williams’s testimony (as with Officer
Griffith’s testimony) could only be considered harmless.
II. Sufficiency of the Evidence [14] Scarbrough contends that the State failed to produce sufficient evidence to
sustain his convictions for Level 6 felony and Class 1 misdemeanor resisting
law enforcement in Cause No. 248 and Level 6 felony intimidation in Cause
No. 275.
When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence, they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 9 of 18 original). “We will not reweigh conflicting evidence or judge the credibility of
witnesses.” Heaton v. State, 483 N.E.2d 58, 59 (Ind. 1985).
A. Level 6 Felony Resisting Law Enforcement in Cause No. 248 [15] Indiana Code section 35-44.1-3-1 provides, in part, that
[a] person who knowingly or intentionally … flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer’s siren or emergency lights, identified himself or herself and ordered the person to stop … commits resisting law enforcement, [a] Level 6 felony if … the person uses a vehicle to commit the offense[.]
[16] Scarbrough contends only that the State failed to prove that he fled from
Sergeant Williams, noting that he ultimately pulled over approximately forty to
fifty yards from where he was told to pull over and then turned to engage police
instead of attempting further flight. Put another way, Scarbrough seems to
maintain that the only reasonable interpretation of the evidence is that he did
not drive far enough to establish flight and was simply attempting to comply
with Sergeant Williams’s order to pull over.
[17] We do not agree that this is the only reasonable interpretation of the evidence.
As we recently noted, “[j]uries are uniquely positioned to decide whether a
driver was unnecessarily increasing the burden on police officers, or whether a
driver was taking reasonable steps that common sense would dictate.” Cowans
v. State, 53 N.E.3d 540, 546 (Ind. Ct. App. 2016). All that is required is that the
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 10 of 18 record contain evidence from which a jury could conclude that Scarbrough
made “‘a knowing attempt to escape law enforcement when … aware that a law
enforcement officer ha[d] ordered him to stop or remain in place once there[,]’”
however short the flight or unsuccessful the attempt ultimately proved to be. Id.
at 545 (quoting Wellman v. State, 703 N.E.2d 1061, 1063 (Ind. Ct. App. 1998)).
[18] The evidence most favorable to the judgment is that when Sergeant Williams
told Scarbrough to pull over into an adjacent parking lot, Scarbrough instead
accelerated “full on,” drove through an intersection, passed another well-lit
parking area, turned left, and finally stopped in a dark alleyway. The jury could
reasonably have concluded that these were not the actions of a person
attempting to comply with an officer’s direction and that Scarbrough’s actions
constituted flight. Scarbrough’s argument is nothing more than an invitation to
reweigh the evidence, which we will not do. See Heaton, 483 N.E.2d at 59.
B. Class A Misdemeanor Resisting Law Enforcement in Cause No. 248 [19] Indiana Code section 35-44.1-3-1 provides, in part, 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[.]” Scarbrough does not argue that he
did not forcibly resist Sergeant Williams and Officer Griffith, only that the
entire incident was the result a series of misunderstandings and/or he was
somehow justified in doing so. Even if we were to assume that any of this
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 11 of 18 would help Scarbrough, the jury was under no obligation to credit his version of
events, and apparently did not. As with the previous argument, this argument
is nothing more than an invitation to reweigh the evidence, which we will not
do.
C. Intimidation in Cause No. 275 [20] Indiana Code section 35-45-2-1 provides, in part, that
[a] person who communicates a threat to another person, with the intent: (1) that the other person engage in conduct against the other person’s will [or] (2) that the other person be placed in fear of retaliation for a prior lawful act … commits intimidation, a … (1) Level 6 felony if: (A) the threat is to commit a forcible felony[.]
“To prove intimidation, the State must establish that the legal act occurred prior
to the threat and that the defendant intended to place the victim in fear of
retaliation for that act.” C.L. v. State, 2 N.E.3d 798, 800 (Ind. Ct. App. 2014).
[21] We conclude that the State produced sufficient evidence to sustain Scarbrough’s
conviction for intimidation. While Jail Officers Stitnicky and Turner were
booking him, Scarbrough said that “he was going to … start arresting officers
and if they resisted he would have them killed [and that] they’re not going to
know where they’re coming from.” Cause No. 275 Tr. p. 133. At the very
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 12 of 18 least, a reasonable jury could have concluded that Scarbrough’s statement was a
threat directed at the jail officers made with the intent to cause them to (1)
submit to his future arrest of them against their will, (2) terminate Scarbrough’s
booking process against their will, and/or (3) fear reprisals for their roles in
facilitating his arrest and impending incarceration. Scarbrough makes several
challenges to his intimidation convictions, none of which we find to be
compelling.
[22] Scarbrough claims that the State failed to prove a prior, legal act, i.e., that his
arrest was somehow illegal. The record does not support this claim. Grant
County Sheriff’s Deputy Matt Ogden indicated that he arrested Scarbrough for
reckless driving, battery on the man that Scarbrough was restraining (based on
the way that Scarbrough removed him from Scarbrough’s vehicle), and criminal
confinement of that man. (Cause No. 275 Tr. Vol. I 177). Scarbrough does not
dispute that probable cause to arrest him existed for all three of these charges.
[23] Scarbrough’s first argument is essentially that because none of these charges
resulted in conviction, his arrest for them must have been illegal. This
argument is without merit. Dismissal of or acquittal on a criminal charge may
occur for any number of reasons unrelated to the existence of probable cause at
the time of arrest. If an arrest is legal at the time it is made, nothing that
happens later can render is retroactively illegal, even if the prosecutor, a judge,
or a jury eventually become convinced of the defendant’s innocence. See, e.g.,
Criss v. City of Kent, 867 F.2d 259, 262 (6th Cir. 1988) (“A valid arrest based
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 13 of 18 upon then-existing probable cause is not vitiated if the suspect is later found
innocent.”).
[24] Scarbrough also argues that his arrest was illegal because he was merely
conducting a legal citizen’s arrest. At the time, however, all police had to go on
was Scarbrough’s unverified claim to that effect. The record indicates that
Deputy Ogden knew that officers had heard squealing tires, indicating possible
reckless driving; had apparently seen Scarbrough pull another person out of his
truck with force; and had seen Scarbrough restraining that person with force
and heard him threatening to punch him in the face. This information in no
way conclusively establishes that Scarbrough was conducting a valid citizen’s
arrest and therefore provides more than enough probable cause to arrest
Scarbrough. We will not craft a rule that would have required authorities to
simply take Scarbrough’s word for it that he was conducting a valid citizen’s
arrest.
[25] Scarbrough also contends that his statement did not amount to a “threat” as it
was conditional on the officers resisting his attempts to arrest them in the
future. The Indiana Supreme Court, however, has made it clear that even a
“conditional” threat may support an intimidation conviction by adopting this
court’s conclusion to that effect. See Roar v. State, 54 N.E.3d 1001, 1002 (Ind.
2016) (adopting and incorporating, in relevant part, Roar v. State, 52 N.E.3d 940
(Ind. Ct. App. 2016), trans. granted). In our opinion in Roar, we rejected the
notion that a threat could not contain conditional language and still be a threat,
noting that “the language a defendant uses in communicating a threat may be
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 14 of 18 relevant to the fact-finder’s assessment of the defendant’s intent, but the
language used is not the only relevant consideration.” Roar, 52 N.E.3d at 943.
We also wholly agree with the Roar court’s observation that no defendant
should be able to avoid prosecution for intimidation by rephrasing his threat as
conditional. See id. (“Under the reasoning of [disapproved cases], no defendant
can be convicted of intimidation if he has the presence of mind to explicitly use
conditional language in the course of communicating his threat to another. But
that is an unreasonable interpretation of our intimidation statute.”). To the
extent that Scarbrough’s threat to Jail Officer’s Stitnicky and Turner may have
been phrased conditionally, this does not help him.
[26] Finally, Scarbrough argues that his statement about planning to arrest “officers”
was not directed at the jail officers in his presence, but, rather, to the officers
who arrested him, none of whom were in the vicinity at the time. This is a
strained interpretation of the record for which there is no evidence. The jury
was entitled to conclude that the statement was directed at Jail Officers
Stitnicky and Turner, and it did. Scarbrough’s argument in this regard is
nothing more than an invitation to reweigh the evidence, which we will not do.
To summarize, we conclude that all of Scarbrough’s challenges to the
sufficiency of the evidence supporting his convictions are without merit.
III. Sentence [27] Scarbrough contends that his four-year, aggregate sentence is inappropriately
harsh. We “may revise a sentence authorized by statute if, after due
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 15 of 18 consideration of the trial court’s decision, the Court finds that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences
must give due consideration to the trial court’s sentence because of the special
expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B)
is an authorization to revise sentences when certain broad conditions are
satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans.
denied (citations and quotation marks omitted). “[W]hether we regard a
sentence as appropriate at the end of the day 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.” Cardwell v.
State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the “due
consideration” we are required to give to the trial court’s sentencing decision,
“we understand and recognize the unique perspective a trial court brings to its
sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App.
2007). The trial court sentenced Scarbrough to an aggregate sentence of four
years of incarceration following his convictions for Level 6 felony resisting law
enforcement, Level 6 felony intimidation, and Class A misdemeanor resisting
law enforcement. The sentencing range for a Level 6 felony is from six to thirty
months, with the advisory sentence being one year. See Ind. Code § 35-50-2-7.
[28] As for the nature of Scarbrough’s offenses, they vary in seriousness. In Cause
No. 248, the offenses were not particularly egregious. Scarbrough’s vehicular
flight from Sergeant Williams was not long, and there is no evidence that any
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 16 of 18 other motorists were placed in any danger. While any vehicular flight has the
potential to be dangerous, this is already reflected by the sentencing range
mandated by the General Assembly for this particular form of resisting law
enforcement. In Cause No. 275, Scarbrough’s intimidation was significantly
more egregious, as it involved a threat directed at jail officers that he would
have them killed if they resisted his attempts to arrest them. Pursuant to the
intimidation statute, a threat involving any forcible felony raises the crime to
felony status, and Scarbrough’s threat involved the most serious forcible felony
of them all. Moreover, the threat was made to jail officers, public servants who
were simply doing their jobs at the time. Overall, we conclude that the nature
of Scarbrough’s offenses justifies a moderately enhanced sentence. While the
nature of Scarbrough’s offenses might not have justified maximum sentences,
that is not what the trial court imposed.
[29] As for Scarbrough’s character, he has consistently shown a disregard for
societal norms and authority and, recently, a willingness to demonstrate that
contempt through the use of force. As an adult, Scarbrough (who was twenty-
two years old when the crimes in Cause Nos. 248 and 275 were committed) has
prior misdemeanor convictions for three counts of marijuana possession,
paraphernalia possession, and resisting law enforcement. On August 7, 2016,
Scarbrough received a jail write-up after telling a guard that he was going to be
arresting several local police officers and would use a gun if necessary, he could
fire a gun faster than any local officers, he owned body armor, and his local
militia would assist him. On August 27, 2016, Scarbrough received a jail write-
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 17 of 18 up when authorities found “hooch” in his cell. Cause No. 275 Appellant’s
App. Vol. II p. 103. Scarbrough was out on bond in Cause No. 248 when he
committed his crime in Cause No. 275. Without going into detail,
Scarbrough’s rejection of authority and refusal to accept responsibility for his
actions is reflected in his extensive communications from jail. The
communications contain frequent declarations of innocence, and, after
Scarbrough became convinced that the trial court had “tossed” a
communication from him, a letter to the trial court that ended, “You should
have taken the higher road. I have your number!” Sent. Ex. D. Scarbrough’s
brushes with the law, which are increasing in frequency and severity, do not
speak well of his character. Moreover, Scarbrough’s seemingly total lack of
remorse for his actions does him no credit. Scarbrough’s character supports the
imposition of enhanced sentences. Scarbrough has failed to establish that, in
light of the nature of his offenses and his character, his sentence is
inappropriate.
[30] We affirm the judgment of the trial court.
Robb, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 27A02-1706-CR-1243 | February 21, 2018 Page 18 of 18