MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Aug 23 2019, 7:30 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 A. David Hutson Curtis T. Hill, Jr. Hutson Legal Attorney General of Indiana Jeffersonville, Indiana Samuel J. Dayton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jarvis Peele, August 23, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-781 v. Appeal from the Clark Circuit Court State of Indiana, The Honorable Bradley B. Jacobs, Appellee-Plaintiff Judge Trial Court Cause No. 10C02-1705-F6-915
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 1 of 14 [1] Jarvis Peele appeals his convictions for Level 6 Felony Possession of
Methamphetamine,1 two counts of Level 2 Felony Unlawful Possession of a
Legend Drug,2 Level 6 Felony Criminal Confinement,3 Class A Misdemeanor
Resisting Law Enforcement,4 and Class B Misdemeanor Possession of
Marijuana.5 He raises the following arguments: (1) the trial court erroneously
denied his motion for discharge following a speedy trial request; (2) the trial
court erroneously admitted certain evidence; and (3) there is insufficient
evidence supporting his conviction for resisting law enforcement. Finding that
the evidence is insufficient to support his conviction for resisting law
enforcement and finding no other reversible error, we affirm in part, reverse in
part, and remand with instructions to vacate Peele’s resisting law enforcement
conviction and to amend his sentencing order to reflect that change.
Facts [2] On May 6, 2017, Clarksville Police Officer Brittany Allen observed a green
Ford Focus change lanes to the left lane in front of Officer Allen’s vehicle
without signaling or yielding the right-of-way to Officer Allen’s vehicle. While
stopped in traffic, Officer Allen conducted a search using the number from the
1 Ind. Code § 35-48-4-6.1(a). 2 Ind. Code § 16-42-19-13. 3 Ind. Code § 35-42-3-3(a). 4 Ind. Code § 35-44.1-3-1(a)(1). 5 I.C. § 35-48-4-11(a)(1).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 2 of 14 temporary registration affixed to the Ford Focus. The search revealed that the
temporary registration was registered to a 2002 Kia.
[3] The Ford Focus and Officer Allen continued driving. Officer Allen intended to
make a traffic stop, but the driver of the Ford Focus, later identified as Peele,
stomped on the brakes suddenly and turned left without using a turn signal.
Officer Allen activated her emergency lights to conduct a traffic stop. Peele
slowed down but did not stop; at one point, he failed to stop at a stop sign.
Officer Allen activated her vehicle’s siren at that point. Peele continued
driving, disregarding several more stop signs. As the Ford Focus slowed down
slightly to turn, Officer Allen saw the vehicle’s rear passenger door open. A
woman, later identified as Melissa Pollard, jumped out of the vehicle. Peele
continued driving and ran over Pollard’s ankle.
[4] As Peele drove his vehicle on the wrong side of the road, the vehicle ran over a
curb and got stuck in a grassy area, finally coming to a stop. Officer Allen
stopped and exited her vehicle, drawing her weapon because she concluded it
was a high risk stop. She commanded Peele to show his hands, get on the
ground, and stay still, but Peele refused to comply. He reached under the
driver’s seat with his right hand, staring at Officer Allen and ignoring her
commands to stop reaching under the seat. He slowly brought his hand out and
put it in his waistband. She again told him to show his hands and get on the
ground, but he did not comply. Instead, he again reached under his seat. He
removed his hand from the seat and began to walk away from the Ford Focus.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 3 of 14 [5] Officer Allen was eventually able to determine that Peele did not have anything
in his hands, so she holstered her gun and drew her Taser instead. Peele
continued to ignore the officer’s commands to stop moving. She discharged her
Taser; as she did so, Peele dipped his head and turned to look at her, and the
Taser struck Peele in the forehead. Once the Taser completed its cycle, Officer
Allen again ordered Peele to show his hands. He refused, instead moving his
hands around underneath his body. She reactivated the Taser and, after it had
completed another cycle, again ordered him to show his hands. He finally
complied and was handcuffed by another officer.
[6] During a search of Peele incident to arrest, the arresting officer found a baggie
in his waistband that contained a substance later determined to be bath salts.
Officers also searched Peele’s vehicle and found substances later determined to
be methamphetamine, marijuana, ethypentylone, alprazolam, and
buprenorphine.
[7] On May 9, 2017, the State charged Peele with Level 6 felony possession of
methamphetamine, two counts of Level 6 felony unlawful possession of a
legend drug, Class A misdemeanor resisting law enforcement, and Class B
misdemeanor possession of marijuana. It later added an allegation that Peele
was an habitual offender.
[8] On November 21, 2018, Peele fired his public defender and demanded a speedy
trial; therefore, the seventy-day period set forth by Criminal Rule 4 would
elapse on January 30, 2019. The trial court set his trial date for December 18,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 4 of 14 2018.6 On December 18, 2018, the trial court entered a minute entry on the
Chronological Case Summary (CCS) stating that “[t]he Court enters a
congested docket due to a jury trial called” in another case against Peele.
Appellant’s App. Vol. II p. 12. On January 10, 2019—still within the seventy-
day window—the trial court scheduled this case for trial on February 19, 2019.
Peele objected to that trial date; the trial court overruled the objection. Peele
later filed a pro se “Writ of Habeas Corpus,” which the trial court and the State
treated as a motion to discharge. The trial court denied the request.
[9] Peele’s trial took place on February 19, 2019. The jury found him guilty as
charged and the trial court later found him to be an habitual offender. On
March 12, 2019, the trial court sentenced Peele to an aggregate term of six years
imprisonment, to be served consecutively with his sentence in another cause.
Peele now appeals.
Discussion and Decision I. Speedy Trial [10] Peele first argues that the trial court erroneously denied his request for discharge
(styled as a “Writ of Habeas Corpus”) after his trial was scheduled outside the
seventy-day window set forth in Criminal Rule 4.
6 The same day, Peele also demanded speedy trials in two other, unrelated criminal causes.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 5 of 14 [11] Criminal Rule 4(B)(1) states that if any defendant held in jail requests an early
trial,
he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70) calendar days because of the congestion of the court calendar. . . . Any continuance granted due to a congested calendar or emergency shall be reduced to an order, which order shall also set the case for trial within a reasonable time.
In this case, the trial court continued the original trial date because of court
congestion. Peele does not challenge the legitimacy of the trial court’s finding
of congestion. Instead, he argues that the trial court erred because, upon
continuing the trial due to congestion, the trial court did not simultaneously
issue an order scheduling the new trial date.
[12] Peele made his speedy trial demand on November 21, 2018. Therefore, the
seventy-day clock would expire on January 30, 2019. Peele’s trial was
originally scheduled for December 18, 2018. On that date, the trial court
scheduled a minute entry indicating that the trial would be postponed because
of court congestion. Although the trial court did not set a new date at that time,
it issued an order on January 10, 2019—approximately three weeks later—
scheduling the case for trial on February 19, 2019.
[13] It may be that, technically speaking, Criminal Rule 4(B)(1) requires that if the
trial court continues a trial due to court congestion, it must simultaneously set
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 6 of 14 the case for trial within a reasonable time,7 and we would encourage trial courts
to abide by this portion of the rule. But in this case, we find that the
approximate three-week delay between the finding of congestion and the setting
of the new trial date is not unreasonable. Bolstering that conclusion is the fact
that Peele does not argue that, had the new trial date been set in a timely
fashion, there was an open and available setting for his trial before the seventy-
day window closed. Therefore, we find that any violation of Criminal Rule
4(B)(1) was harmless and did not prejudice Peele. We decline to reverse on this
basis.
II. Admission of Evidence [14] Next, Peele argues that the trial court erroneously admitted the deposition of a
forensic scientist and statements made by Pollard to Officer Allen into evidence.
According to Peele, the admission of this evidence violated his rights under the
Confrontation Clause of the Sixth Amendment to the United States
Constitution.
[15] We will reverse a trial court’s ruling on the admissibility of evidence only if the
decision is clearly against the logic and effect of the facts and circumstances or
when the trial court has misinterpreted the law. J.K. v. State, 8 N.E.3d 222, 228
(Ind. Ct. App. 2014). But when a defendant claims that a constitutional
7 Peele does not argue that the rescheduled trial date, which was a mere twenty days past the seventy-day window, was unreasonable.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 7 of 14 violation has resulted from the admission of evidence, the standard of review is
de novo. Carr v. State, 106 N.E.3d 546, 552 (Ind. Ct. App. 2018), trans. denied.
[16] The Sixth Amendment to the United States Constitution provides that “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted
with the witnesses against him.” This amendment prohibits the “admission of
testimonial statements of a witness who did not appear at trial unless he was
unavailable to testify, and the defendant had had a prior opportunity for cross-
examination.” Crawford v. Washington, 541 U.S. 36, 53-54 (2004).
A. Deposition [17] On February 7, 2019, the State filed a motion for leave to take the deposition of
forensic scientist Rebecca Nickless in lieu of live testimony. The trial court held
a hearing on the motion, and at the hearing, the State informed the trial court
that Nickless would be out of state during the scheduled trial date and would,
therefore, be unavailable for live testimony. Peele, who was pro se at the time,
told the trial court that he had no objection to the State’s request.
Consequently, the State deposed Nickless on February 11, 2019, in the
courtroom. Peele was present and, by that time, represented by a public
defender, who was able to cross-examine Nickless. Then, when the State
introduced Nickless’s deposition at trial, Peele’s attorney objected, arguing that
there was no evidence that Nickless was unavailable.
[18] Because Peele assented to the deposition of Nickless in lieu of live testimony, he
invited any error that occurred. See C.T. v. Marion Cty. Dep’t of Child Servs., 896
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 8 of 14 N.E.2d 571, 588 (Ind. Ct. App. 2008) (holding that the doctrine of invited error
provides that a party may not take advantage of an error that he commits,
invites, or which is the natural consequence of his own neglect). Moreover,
Peele demonstrated that he understood what depositions were, he knew that he
would have the chance to cross-examine Nickless, and he knew that he would
be able to object during the deposition. See Evans v. State, 809 N.E.2d 338, 344
(Ind. Ct. App. 2004) (holding that pro se litigants are held to the same legal
standards as licensed attorneys). Invited error is not reviewable on appeal.
C.T., 896 N.E.2d at 588; see also Lane v. State, 997 N.E.2d 83, 93 (Ind. Ct. App.
2013) (noting that a defendant can waive his Sixth Amendment right to
confront witnesses). Indeed, it would be unfair for Peele to have informed the
State and the trial court that he did not object to the admission of Nickless’s
deposition into evidence and then be allowed to ambush the State at trial with
an objection to that same deposition.
[19] Furthermore, Peele—who was represented by counsel during the deposition—
had the opportunity to, and did, cross-examine Nickless, and both he and his
attorney were aware that the State intended to introduce the deposition at his
trial. Tr. Ex. Vol. p. 15-42. Under these circumstances, we find no
constitutional violation occurred when the trial court admitted the deposition
into evidence.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 9 of 14 B. Pollard’s Statements [20] Next, Peele directs our attention to portions of Officer Allen’s testimony.
Specifically, Officer Allen testified that Pollard told the officer that “she was in
the vehicle and when [Officer Allen] initiated [her] overhead lights and siren,
she told [Peele] to stop . . . for me to pull over . . . . [S]he told [Officer Allen]
she had said that multiple times.” Tr. Vol. I p. 190. Pollard also told Officer
Allen that Peele had told her, “no, I’m not stopping, we all have warrants,” and
that afterwards, Pollard decided to jump out of the vehicle. Id. Although
Pollard was subpoenaed to testify at the trial, she did not appear and did not
testify.
[21] Peele argues that by allowing Officer Allen to testify about Pollard’s statements,
the trial court violated his rights under the Confrontation Clause. He did not,
however, object at trial to this testimony. As a result, he must show that its
admission constituted fundamental error. A fundamental error is a blatant
violation of basic principles that causes substantial harm and deprives the
defendant of fundamental due process. Benson v. State, 762 N.E.2d 748, 755
(Ind. 2002). Put another way, the error must have been so egregious that the
trial court was required to raise the issue on its own. Id.
[22] Even if we were to agree solely for argument’s sake that the admission of this
evidence was erroneous, we would find that the error was not fundamental.
Peele argues that this testimony is the only evidence supporting his conviction
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 10 of 14 for criminal confinement and that without it, that conviction would have to be
overturned. We disagree.
[23] To convict Peele of Level 6 felony criminal confinement, the State was required
to prove beyond a reasonable doubt that Peele knowingly or intentionally
confined Pollard without her consent. I.C. § 35-42-3-3(a). Aside from Pollard’s
statements, Officer Allen testified about her observations. Specifically, she
testified that she saw Pollard jump out of a vehicle that was traveling at
approximately twenty miles per hour and that Peele then drove over Pollard’s
ankle. A reasonable factfinder could infer from this evidence that Pollard
wanted to exit the vehicle, Peele was not taking any steps to facilitate a safe
exit, and Pollard was being confined to the vehicle against her will. In other
words, even without the brief statements that Pollard made to Officer Allen,
there is sufficient evidence supporting the confinement conviction. Therefore,
even if the admission of those statements was erroneous, the error was harmless
given the other evidence in the record.
III. Sufficiency [24] Finally, Peele argues that there is insufficient evidence supporting his
conviction for Class A misdemeanor resisting law enforcement. When
reviewing the sufficiency of the evidence to support a conviction, we must
consider only the probative evidence and reasonable inferences supporting the
conviction and will neither assess witness credibility nor reweigh the evidence.
Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm unless no
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 11 of 14 reasonable factfinder could find the elements of the crime proved beyond a
reasonable doubt. Id.
[25] Because of the phrasing of the charging information in this case, to convict
Peele of Class A misdemeanor resisting law enforcement, the State was
required to prove beyond a reasonable doubt that Peele forcibly resisted,
obstructed, or interfered with a law enforcement officer while the officer was
lawfully engaged in the execution of the officer’s duties. I.C. § 35-44.1-3-
1(a)(1). For unknown reasons, the State did not charge Peele with resisting law
enforcement based on his flight from Officer Allen after she activated her lights
and siren. I.C. § 35-44.1-3-1(a)(3). Therefore, resisting by flight is not at issue
in this appeal.
[26] The State’s theory of the case was that Peele resisted Officer Allen by refusing
to obey her commands to show his hands. But our Supreme Court has held
that a defendant’s failure to present his hands for handcuffing—absent the use
of force—does not constitute resisting law enforcement. Graham v. State, 903
N.E.2d 963, 965-66 (Ind. 2009) (reversing a resisting conviction where
defendant refused requests to put his hands up and then refused to present
officers his hands for handcuffing).
[27] In this case, while Peele refused multiple commands to show his hands and had
to be tased twice before complying with Officer Allen, there is no evidence
whatsoever that he used any force against the officer. The fact that Peele
walked away does not support the conviction. See Spangler v. State, 607 N.E.2d
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 12 of 14 720, 724-25 (Ind. 1993) (reversing a resisting conviction where the defendant
walked away from a police officer). Moreover, the mere fact that Peele moved
his hands around in the vehicle and then underneath his body does not support
the conviction. See Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind. Ct. App. 1998)
(reversing a resisting conviction where police officer tried to take a flag from
Ajabu and he held onto the flag, twisting and turning it, and had to be dragged
for eight to ten feet before letting it go because, while there was “some
resistance,” there was no evidence that the defendant had “acted forcibly”).
[28] On appeal, the State makes the novel argument that, because Peele maintained
constant eye contact with Officer Allen while reaching into the vehicle, a
factfinder could infer that Peele was making “a visual showing of strength and a
threat of violence” that would support a resisting conviction. Pogue v. State, 937
N.E.2d 1253, 1258 (Ind. Ct. App. 2010). We simply cannot conclude that the
act of maintaining eye contact can elevate a defendant’s actions to forcible
resistance.
[29] We do not disagree that Peele’s actions were menacing, nor do we question
Officer Allen’s precautionary measures of drawing her weapon and deploying
her Taser. But the fact that a law enforcement officer was reasonably worried
about the possibility that a suspect had a weapon does not automatically mean
that the suspect was guilty of resisting law enforcement. Here, there is simply
no evidence that Peele forcibly resisted, obstructed, or interfered with Officer
Allen’s investigation. Therefore, we reverse his conviction for Class A
misdemeanor resisting law enforcement.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 13 of 14 [30] The judgment of the trial court is affirmed in part, reversed in part, and
remanded with instructions to (1) vacate the resisting law enforcement
conviction and (2) amend his sentencing order to reflect the change.
Kirsch, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-781 | August 23, 2019 Page 14 of 14