Harry C. Custer v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: November 15, 2018
• Docket: 18A-CR-1539
• 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 Nov 15 2018, 11:17 am

court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Brooklyn, Indiana Attorney General of Indiana

James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Harry C. Custer, November 15, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1539 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Sarah K. Mullican, Appellee-Plaintiff Judge Trial Court Cause No. 84D03-1707-F1-2173

Altice, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1539 | November 15, 2018 Page 1 of 4 [1] Following a jury trial, Harry C. Custer was convicted of numerous offenses,

including resisting law enforcement as a Level 6 felony and as a Class A

misdemeanor. On appeal, Custer argues that his convictions for resisting law

enforcement violate Indiana’s prohibition on double jeopardy. The State

concedes that both resisting convictions are based upon a continuous act of

resisting and agrees that Custer’s conviction for Class A misdemeanor resisting

law enforcement should be vacated.

[2] We reverse and remand with instructions to vacate Custer’s conviction for

Class A misdemeanor resisting law enforcement.

Facts & Procedural History

[3] After identifying Custer as the suspect in a reported rape, police officers

attempted to arrest him the following day during a traffic stop. Custer fled in

his vehicle. The chase ended when Custer drove his truck into a field. Custer

then exited his truck and fled on foot toward a wooded area. Shortly thereafter,

Custer was apprehended without further incident.

[4] Custer was charged with Count I, Level 1 felony rape; Count II, Level 3 felony

criminal confinement; Count III, Level 5 felony battery resulting in serious

bodily injury; Count IV, Level 5 felony intimidation; Count V, Level 6 felony

strangulation; Count VI, Level 6 felony resisting law enforcement; Counts VII

and VIII, both charging Level 6 felony battery against a public safety official;

and Count IX, Class A misdemeanor resisting law enforcement. The State also

alleged that Custer was a habitual offender. A jury trial was held March 20-22,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1539 | November 15, 2018 Page 2 of 4 2018. The jury found Custer guilty of Counts I through III, guilty of Class A

misdemeanor intimidation as a lesser included offense of that charged in Count

IV, and guilty on Counts V, VI, and IX. The jury found Custer not guilty on

Counts VII and VIII. The jury also found Custer to be a habitual offender. The

trial court sentenced Custer to an aggregate term of fifty years.1

Discussion & Decision

[5] This court has held that two convictions, one felony conviction for fleeing from

officers in a vehicle, and another misdemeanor conviction for fleeing on foot,

violate the continuing crime doctrine when both convictions are based upon

one continuous incident of fleeing from the police. See Lewis v. State, 43 N.E.3d

689, 691 (Ind. Ct. App. 2015) (holding that “Lewis’ actions of fleeing by vehicle

and then on foot constitute one continuous act of resisting law enforcement,

and we hold that convictions on both counts cannot stand”); Arthur v. State, 824

N.E.2d 383, 387 (Ind. Ct. App. 2005) (holding that a defendant’s fleeing by

vehicle and then on foot constitute one continuous act of resisting law

enforcement) .

[6] We agree that Custer’s actions of fleeing by vehicle and then on foot constitute

one continuous act of resisting law enforcement. Therefore, Custer’s dual

convictions for resisting law enforcement cannot stand. We remand this case to

1 The trial court sentenced Custer to thirty years on Count I (Level 1 felony rape) and enhanced that sentence by twenty years based on the habitual offender determination. The court entered concurrent sentences on each of the remaining counts.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1539 | November 15, 2018 Page 3 of 4 the trial court to vacate Custer’s conviction for Class A misdemeanor resisting

law enforcement.

[7] Judgment reversed and remanded with instructions.

Brown, J. and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1539 | November 15, 2018 Page 4 of 4