Kim Townsend v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 25, 2018
• Docket: 18A-CR-1046
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 25 2018, 10:27 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David Becsey Curtis T. Hill, Jr. Zeigler Cohen & Koch Attorney General Indianapolis, Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kim Townsend, September 25, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1046 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Helen Marchal, Judge Appellee-Plaintiff Trial Court Cause No. 49G15-1601-F6-734

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1046 | September 25, 2018 Page 1 of 4 [1] Kim Townsend appeals her convictions for level 6 felony resisting law

enforcement and level 6 felony operating a vehicle as a habitual traffic violator.

Townsend contends that the trial court erred in excluding a video of her arrest

by police officers after a car chase. Finding no error, we affirm.

[2] Around 5:00 p.m. on January 6, 2016, a Marion County sheriff’s deputy saw

Townsend make a turn in her vehicle without using a turn signal. The deputy

“activated his emergency equipment to initiate a traffic stop on the vehicle.”

Tr. Vol. 2 at 38. Townsend, who knew that her driving privileges were

suspended, initially stopped her vehicle. But as the deputy approached her car,

Townsend “sped off at a high rate of speed.” Id. at 39. The deputy pursued

Townsend with his “lights and siren going[,]” and several other law

enforcement vehicles joined the pursuit. Id. at 47. Townsend, who was driving

“[e]rratic[ally,]” led the officers on a circuitous chase through city streets for

approximately ten minutes until she stopped in an alley behind her residence.

Id. at 44. As Townsend ran toward the back door, officers arrested her.

[3] The State charged Townsend with level 6 felony resisting law enforcement

(knowingly fleeing from a law enforcement officer after the officer, by visible or

audible means, identified himself and ordered her to stop) and level 6 felony

operating a vehicle as a habitual traffic violator (operating a motor vehicle while

knowing that her driving privileges were suspended as a habitual traffic

violator). Before trial, the State moved to exclude a surveillance video of

Townsend’s arrest, contending that it was irrelevant to the charges and had “the

danger of confusing the issues of the case and creating unfair prejudice.”

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1046 | September 25, 2018 Page 2 of 4 Appellant’s App. Vol. 2 at 163. Townsend objected, arguing that the video

showed that the force used to subdue her justified her concern for her safety and

her failure to stop. The trial court remarked, “Well I can see the relevance if it

was a resist by force or a battery on an officer[…]; I am not seeing the relevance

that it has to operating as a habitual traffic violator and resist by fleeing.” Tr.

Vol. 2 at 8. The court granted the State’s motion, and Townsend made an offer

to prove during trial. The jury found her guilty as charged, and the court

sentenced her to 545 days, all suspended except for time served.

[4] On appeal, Townsend argues that the trial court committed reversible error in

excluding the video, claiming that it violated her constitutional right to present

a defense. The decision to admit or exclude evidence is a matter within the trial

court’s sound discretion. Green v. State, 65 N.E.3d 620, 630 (Ind. Ct. App.

2016), trans. denied (2017). “An abuse of discretion occurs where the trial

court’s decision is clearly against the logic and effect of the facts and

circumstances of the case or misinterprets the law.” Id. “We afford an

evidentiary decision great deference upon appeal and reverse only when a

manifest abuse of discretion denies the defendant a fair trial.” Id.

[5] “While a defendant has a constitutional right to present a defense, this right is

not absolute.” James v. State, 96 N.E.3d 615, 618 (Ind. Ct. App. 2018), trans.

denied. “In the exercise of this right, the accused, as is required of the State,

must comply with established rules of procedure and evidence designed to

assure both fairness and reliability in the ascertainment of guilt and innocence.”

Id. (quoting Roach v. State, 695 N.E.2d 934, 939 (Ind. 1998) (quoting Chambers v.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1046 | September 25, 2018 Page 3 of 4 Mississippi, 410 U.S. 284, 302 (1973)). “One such rule requires that the evidence

presented by the parties be relevant.” Id. “Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.” Ind.

Evidence Rule 401. “Irrelevant evidence is not admissible.” Ind. Evidence

Rule 402.

[6] Townsend argues that “[t]he charge of fleeing placed into issue [her] state of

mind” and that “[n]ot allowing her to play the video of her arrest for the jury

tipped the scales of justice unfairly in favor of the State.” Appellant’s Br. at 9.

Townsend cites no authority for the proposition that concern for one’s safety is

a valid defense to the crime of resisting law enforcement by fleeing. Moreover,

as the State points out, the crime was completed before Townsend’s arrest

occurred. In sum, the video of Townsend’s arrest was irrelevant, and the trial

court did not abuse its discretion in excluding it. Therefore, we affirm.

[7] Affirmed.

Najam, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1046 | September 25, 2018 Page 4 of 4