Justin Walsh v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 16, 2016
• Docket: 42A05-1511-CR-1958
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Aug 16 2016, 9:25 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John Andrew Goodridge Gregory F. Zoeller Evansville, Indiana Attorney General of Indiana

Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Justin Walsh, August 16, 2016 Appellant-Defendant, Court of Appeals Case No. 42A05-1511-CR-1958 v. Appeal from the Knox Superior Court State of Indiana, The Honorable Ryan Appellee-Plaintiff. Johanningsmeier, Judge Trial Court Cause No. 42D02-1503-CM-300

Bradford, Judge.

Case Summary

Court of Appeals of Indiana | Memorandum Decision 42A05-1511-CR-1958 | August 16, 2016 Page 1 of 8 [1] On February 6, 2015, Appellant-Defendant Justin Walsh was a passenger in a

vehicle which was stopped for speeding. Upon approaching the vehicle, the

officer who initiated the traffic stop noticed that Walsh was not wearing his

safety belt. Intending to cite Walsh for his failure to wear his safety belt, the

officer made numerous requests for Walsh’s identification. Walsh denied each

of these requests. Walsh was subsequently charged with and convicted of Class

C misdemeanor failure to provide identifying information. Walsh challenges

this conviction on appeal. We affirm.

Facts and Procedural History [2] At approximately 5 p.m. on February 6, 2015, Indiana State Trooper Brad Mull

was driving southbound on US 41 in Knox County when he observed a black

Chevrolet Cruz approaching at what appeared to be a high rate of speed.

Trooper Mull activated his “front-facing” radar and observed that the vehicle

was traveling at a rate of eighty-one miles per hour. The posted speed limit

along that stretch of US 41 was sixty miles per hour. After determining that the

vehicle was traveling in excess of the posted speed limit, Trooper Mull turned

around and initiated a traffic stop.

[3] Upon approaching the vehicle, Trooper Mull observed that Walsh, who was

sitting in the left rear passenger seat, was not wearing a seat belt. Trooper Mull

notified the driver of the vehicle why he had initiated the stop and the driver

provided Trooper Mull with the requested identification documents.

Court of Appeals of Indiana | Memorandum Decision 42A05-1511-CR-1958 | August 16, 2016 Page 2 of 8 [4] Trooper Mull, intending to cite Walsh for failing to wear his seatbelt, then

attempted to engage Walsh in a conversation. Trooper Mull asked Walsh for

his identification. Walsh responded by shaking “his head no.” Tr. p. 11.

Trooper Mull asked a second time for his identification. Walsh responded

“no.” Tr. p. 11. Trooper Mull then “handed [his] pad of paper and pen to

[Walsh and requested that he] write down his name and date of birth on the

note pad.” Tr. p. 11. Walsh responded, “f[***] you, I don’t have to give you

s[***]. I know my f[***]ing Fourth Amendment rights.” Tr. pp. 11-12. After

Trooper Mull asked Walsh for his identification for a fourth time, Walsh asked

“why.” Tr. p. 12. Trooper Mull responded that he needed Walsh’s

identification “because [Walsh was] not wearing a seat belt.” Tr. p. 12. Walsh

responded, “f[***] that. I don’t have to give you s[***]. I know my Fifth

Amendment rights.” Tr. p. 12.

[5] At that point, Trooper Mull requested assistance from the Knox County

Sheriff’s Department and instructed Walsh to exit the vehicle. Walsh

responded that he knew his “Sixth Amendment rights and [that he did not]

have to … do anything.” Tr. p. 12. Trooper Mull then reached inside the door

and unlocked and opened the door. Trooper Mull described what happened

next as follows:

[I] grabbed [Walsh] by the arm and tried to pull him out of the [vehicle]. [Walsh] ripped his arm away from my grasp. He exited the [vehicle] and squared his body up, as if to fight me. He stood tall, puffed out his chest and clenched his fists. I felt threatened. I told him to put his hands behind his back. I grabbed his hand and assisted Walsh in placing his hand behind Court of Appeals of Indiana | Memorandum Decision 42A05-1511-CR-1958 | August 16, 2016 Page 3 of 8 his back. He screamed, you are violating my Constitutional rights. I placed him in the handcuffs and double locked for my safety.

Tr. pp. 12-13. Walsh was subsequently taken into police custody.

[6] On March 8, 2015, Appellee-Plaintiff the State of Indiana (“the State”) charged

Walsh with Class C misdemeanor refusal to identify oneself. Following a

bench trial, Walsh was found guilty and was sentenced to sixty days of home

monitoring and six months of supervised probation. On August 27, 2015,

Walsh filed a motion to correct error. The trial court subsequently granted

Walsh’s motion and re-sentenced him to sixty days suspended to formal

probation which was to be served on home monitoring. This appeal follows.

Discussion and Decision [7] Walsh contends that his conviction should be reversed because his actions do

not fall within the purview of Indiana Code section 34-28-5-3.5, i.e., the “refusal

to provide identification information” statute, and, as such, his actions do not

constitute a criminal offense. The State, for its part, argues that Walsh has

waived this issue for appellate review because he did not raise it before the trial

court. We agree with the State.

[8] As a general rule, a party may not present an argument or issue to an appellate

court unless the party raised the same argument or issue before the trial court.

Bigger v. State, 5 N.E.3d 516, 518 (Ind. Ct. App. 2014) (citing Crafton v. State,

821 N.E.2d 907, 912 (Ind. Ct. App. 2005)), trans. denied. “Specific grounds for Court of Appeals of Indiana | Memorandum Decision 42A05-1511-CR-1958 | August 16, 2016 Page 4 of 8 an objection must be stated in order to preserve the issue for appellate review.”

Wells v. State, 441 N.E.2d 458, 463 (Ind. 1982) (citing Brown v. State, 417 N.E.2d

333, 337 (Ind. 1981)). “Error can only be predicated on questions presented to

and ruled upon by the trial court.” Id. (citing Rogers v. State, 396 N.E.2d 348,

353 (Ind. 1979)).

[9] Indiana Code section 35-34-1-4(a)(5) provides that a trial court may, upon

motion of the defendant, dismiss the indictment or charging information upon a

showing that the facts stated therein do not constitute an offense. Indiana Code

section 35-34-1-4(b) further provides that a motion to dismiss filed under this

section shall be made no later than ten days prior to the omnibus date if the

defendant is charged with “one (1) or more misdemeanors” and that a motion

made thereafter with respect to subsection (a)(5) “may summarily be denied.”

In Brown v. State, 442 N.E.2d 1109, 1114 (Ind. 1982), the Indiana Supreme

Court explained that

It is well established in Indiana that a challenge to the sufficiency of an indictment or information is governed by statutory provisions and must be made by a motion to dismiss prior to arraignment and plea or any error in this regard is waived. We have explained the reasons for this rule: “If the indictment is defective there will be an opportunity to amend before trial, and expense and time-consuming efforts in a trial will thus not be lost. Another sound reason for such a rule is that a party should be required to promptly raise error in the trial court at the time it occurs rather than remain silent, hoping for an acquittal, and if that does not occur, then raise the question of error for the first time.”

Court of Appeals of Indiana | Memorandum Decision 42A05-1511-CR-1958 | August 16, 2016 Page 5 of 8 (Internal citations omitted, quoting Brown v. State, 254 Ind. 504, 506-07, 260

N.E.2d 876, 877 (1970)).

[10] In Galbraith v. State, 468 N.E.2d 575, 578 (Ind. Ct. App. 1984), the defendant

challenged his conviction on appeal by arguing that the facts alleged in the

information did not constitute an offense. We concluded, however, that the

defendant had waived the appellate challenge because he had failed to raise it

before the trial court. Id. Similarly, here, the record demonstrates that Walsh

did not seek dismissal of the charges or raise any challenge to the charging

information before or during trial. Pursuant to the clear language of Indiana

Code section 35-34-1-4 and the Indiana Supreme Court’s decision in Brown, we

conclude that Walsh has therefore waived the instant challenge on appeal. This

conclusion is consistent with our conclusion in Galbraith.

[11] Furthermore, to the extent that Walsh’s arguments on appeal can be interpreted

as a challenge to the sufficiency of the evidence to sustain his conviction, such a

challenge is without merit.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the 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

Court of Appeals of Indiana | Memorandum Decision 42A05-1511-CR-1958 | August 16, 2016 Page 6 of 8 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

original). Upon review, appellate courts do not reweigh the evidence or assess

the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind.

2002).

[12] In order to convict Walsh of Class C misdemeanor refusal to provide

identification information, the State was required to prove that he knowingly or

intentionally refused “to provide either [his]: (1) name, address, and date of

birth; or (2) driver’s license, if in [his] possession; to a law enforcement officer

who ha[d] stopped [him] for an infraction or ordinance violation.” Ind. Code §

34-28-5-3.5. “A person engages in conduct ‘intentionally’ if, when he engages

in the conduct, it is his conscious objective to do so.” Ind. Code § 34-41-2-2(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).

[13] It is a Class D traffic infraction if any occupant of a motor vehicle fails to wear

a safety belt. See Ind. Code §§ 9-19-10-2 and 9-19-10-8. The record reveals that

Trooper Mull made numerous requests for Walsh’s identification information

after observing that Walsh was not wearing his safety belt while riding as a

Court of Appeals of Indiana | Memorandum Decision 42A05-1511-CR-1958 | August 16, 2016 Page 7 of 8 passenger in a vehicle that Trooper Mull had stopped for speeding. Walsh

refused each of these requests. Walsh continued to refuse to provide his

identification information after being told by Trooper Mull why he had

requested the information, i.e., that he intended to cite Walsh for failure to wear

his safety belt. This evidence is sufficient to sustain the trial court’s guilty

finding.

[14] Furthermore, to the extent that Walsh claims that he only removed his safety

belt after Trooper Mull had pulled the vehicle over, the trial court was under no

obligation to believe Walsh’s claims. See McCullough v. State, 985 N.E.2d 1135,

1139 (Ind. Ct. App. 2013) (providing that the trier of fact was under no

obligation to credit defendant’s version of the events in question as evidence

that he acted without fault or that his actions were reasonable). Walsh’s

challenge to the sufficiency of the evidence amounts to nothing more than an

invitation for this court to reweigh the evidence, which we will not do. See

Stewart, 768 N.E.2d at 435.

[15] The judgment of the trial court is affirmed.

Pyle, J., and Altice, J., concur.

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