Donte Curry v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 16, 2020
• Docket: 20A-CR-38
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 16 2020, 11:24 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Zachary Witte Evan M. Comer David A. Felts Deputy Attorney General Fort Wayne, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Donte Curry, June 16, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-38 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy Davis, Appellee-Plaintiff. Judge Trial Court Cause No. 02D04-1905-F6-638

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-38 | June 16, 2020 Page 1 of 5 STATEMENT OF THE CASE [1] Appellant-Defendant, Donte Curry (Curry), appeals his conviction for resisting

arrest, Level 6 felony, Ind. Code § 35-44.1-3-1.

[2] We affirm.

ISSUE [3] Curry raises one issues on appeal, which we restate as: Whether the State

presented sufficient evidence beyond a reasonable doubt to convict Curry of his

Level 6 felony resisting arrest.

FACTS AND PROCEDURAL HISTORY [4] During the early morning hours of March 18, 2019, Fort Wayne Police Officer

Alvin Davis (Officer Davis) was on patrol in his marked police car when he

observed a green Ford vehicle with an “extremely dark window tint” that

appeared to be greater than the 30 percent tint allowed by Indiana law.

(Transcript Vol. II, p. 86). After performing a U-turn at a nearby intersection,

Officer Davis began to follow the Ford vehicle, but he could not catch up since

the vehicle sped off. According to Officer Davis, the Ford vehicle was traveling

between 50 miles to 60 miles per hour in a 30 mile-per-hour residential zone.

Additionally, the driver of the Ford vehicle failed to stop at a stop sign. Upon

seeing that, Officer Davis activated his emergency lights to initiate a stop, but

the driver of the Ford vehicle continued to drive for another half block. Officer

Davis then activated his siren, but the driver of the Ford vehicle failed to stop.

Approximately one minute and six seconds after Officer Davis first activated Court of Appeals of Indiana | Memorandum Decision 20A-CR-38 | June 16, 2020 Page 2 of 5 his lights and siren, the driver of the Ford vehicle parked on the side of the road.

Officer Davis radioed for assistance, initiated a “felony stop,” and ordered the

driver to turn off the ignition. (Tr. Vol. II, p. 88). The driver, who was later

identified as Curry, initially refused to comply, and it was only after Officer

Davis issued multiple loud verbal commands that Curry turned off his car

ignition. Officer Davis then ordered Curry to exit the vehicle with his hands in

the air; again, Curry failed to comply until several commands were given. After

Curry was placed in handcuffs, Officer Davis gave Curry his Miranda warnings.

Curry thereafter stated that he “didn’t want to stop until he got to his

girlfriend’s house.” (Tr. Vol. II, p. 91).

[5] On May 30, 2019, the State filed an Information, charging Curry with Level 6

felony resisting law enforcement. A jury trial was conducted on October 23,

2019, and Curry was found guilty as charged. On December 20, 2019, the trial

court held a sentencing hearing and ordered Curry to serve two years in the

Indiana Department of Correction.

[6] Curry now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION I. Sufficiency of the Evidence

[7] 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 the evidence,

and any reasonable inferences that may be drawn therefrom, in a light most

Court of Appeals of Indiana | Memorandum Decision 20A-CR-38 | June 16, 2020 Page 3 of 5 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)).

[8] A person commits resisting law enforcement if the person “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.” I.C. § 35-44.1-3-1. The offense is a Level 6 felony if the person uses a

vehicle to commit the offense. Id.

[9] Curry argues that the State failed to present sufficient evidence that he

knowingly or intentionally fled from Officer Davis when Officer Davis initiated

the traffic stop. He suggests that the one-minute-long chase in a 30 mile-per-

hour zone was too short in duration to be considered an actual flight under the

resisting law enforcement statute.

[10] The record shows that while patrolling in his marked police vehicle, Officer

Davis observed Curry’s vehicle with an extremely dark window tint which is

not allowed by Indiana law. After performing a U-turn at a nearby intersection,

Officer Davis began to follow Curry’s vehicle. Curry sped off traveling between

50 miles to 60 miles per hour in a 30 mile-per-hour residential zone. Officer

Davis accelerated to catch up with Curry. When Curry failed to stop at a stop

Court of Appeals of Indiana | Memorandum Decision 20A-CR-38 | June 16, 2020 Page 4 of 5 sign, Officer Davis activated the lights and sirens on his police car, but Curry

continued to drive for several blocks and made at least one turn before finally

coming to a complete stop. Officer Davis had to issue several verbal commands

before Curry turned off his car ignition. At his jury trial, Curry testified that

while he saw and heard Officer Davis’s lights and siren, he wanted to get to a

safe location before stopping. Contrary to his claim, Officer Davis testified that

there were multiple safe locations to pull over. Moreover, after Curry was

placed in handcuffs and Officer Davis issued Curry his Miranda warnings,

Curry admittedly stated that he “didn’t want to stop until he got to his

[11] Here, the evidence before the jury established that Curry intended not to stop

when Officer Davis initiated the traffic stop. Thus, we hold that the State

presented sufficient evidence to support Curry’s Level 6 felony resisting law

enforcement conviction.

CONCLUSION [12] Based on the foregoing, we conclude that the State presented sufficient evidence

beyond a reasonable doubt to sustain Curry’s Level 6 felony resisting law

[13] Affirmed.

Mathias, J. and Tavitas, J. concur

Court of Appeals of Indiana | Memorandum Decision 20A-CR-38 | June 16, 2020 Page 5 of 5