Lauren Thomas v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 25, 2019
• Docket: 18A-CR-2533
• 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 Jul 25 2019, 8:44 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

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Bradley S. Boswell Curtis T. Hill, Jr. Certified Legal Intern Attorney General of Indiana Joel M. Schumm Tiffany A. McCoy IU Robert H. McKinney School of Law Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Lauren Thomas, July 25, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2533 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Ronnie Huerta, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G24-1702-F6-5669

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 1 of 12 [1] Lauren Thomas appeals her conviction for Level 6 Felony Resisting Law

Enforcement,1 arguing that (1) the trial court erred when it denied her motion

for a mistrial; and that (2) the evidence was insufficient to support the

conviction. Finding no error and the evidence sufficient, we affirm.

Facts 2

[2] On February 10, 2017, at around 10:00 p.m., Indianapolis Metropolitan Police

Department (IMPD) Officer Darrell Miller was dispatched to the intersection of

38th Street and Fall Creek Parkway to check on a reported abandoned vehicle.

Officer Miller arrived at the intersection, evaluated the vehicle, and noticed that

most of the front right tire was missing its rubber. He then moved his fully

marked police car behind the vehicle and called to have it towed. Officer Miller

proceeded to conduct an inventory search and discovered Thomas sitting in the

driver’s seat, which was completely reclined.

[3] Officer Miller testified that at first glance, Thomas “appeared to be

unconscious.” Tr. Vol. II p. 34. After knocking on the window and shaking the

vehicle to no avail, Officer Miller finally opened the door, which promptly

awakened Thomas. He asked her what she was doing and why she was laying

in her car by the side of the road. Thomas responded that she was “waiting to

1 Ind. Code §§ 35-44.1-3-1(a)(3), -1(b)(1)(A). 2 We held oral argument for this case in Indianapolis on June 26, 2019. We thank both parties for their stimulating conversation and willingness to answer our questions.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 2 of 12 drive her vehicle home[.]” Id. at 35. She also explained that she had just come

from a wine and bourbon tasting. During this short conversation, Officer Miller

noted the smell of alcohol on her breath. Despite Officer Miller’s suggestions

that Thomas call someone to come and pick her up, Thomas insisted that she

would be driving her vehicle home. Officer Miller informed her that the vehicle

was inoperable, that it was blocking traffic, and that it would need to be towed.

Still, Thomas refused.

[4] Officer Miller asked Thomas for her driver’s license, which she willingly gave to

him. Officer Miller then told Thomas to “sit tight” and that he would “be right

back with her.” Id. at 57. Officer Miller returned to his police car and ran a

search, discovering that Thomas’s license was suspended with a prior

conviction.

[5] While Officer Miller was conducting this search, Thomas began driving

eastbound on 38th Street at around twenty-five to thirty miles per hour.3 Officer

Miller then activated his siren, turned on his spotlight, and notified

communications because “[he] thought [he] was going to be in a vehicle

pursuit.” Id. at 58. However, Thomas had only driven a little over a block and

turned south before she voluntarily stopped her vehicle. Officer Miller left his

police car, approached Thomas, and asked her why she had driven away. She

3 Though Officer Miller testified on direct examination that this was the speed at which Thomas was driving away, during a prior deposition and on cross-examination, he testified that Thomas was driving at around fifteen to twenty miles per hour. Tr. Vol. II p. 59, 70.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 3 of 12 responded that she had told him, “I was driving my vehicle home.” Id. at 60.

Officer Miller informed Thomas that her license was suspended and ordered

her out of the vehicle. Thomas became increasingly violent and belligerent

towards Officer Miller, leading him to call for back-up. But before IMPD

Officers Emmel and Freeman arrived to assist Officer Miller, he had handcuffed

her, sat her down on the curb, and arrested her. The two back-up officers agreed

with Officer Miller that Thomas’s breath smelled of alcohol.

[6] On February 11, 2017, the State charged Thomas with one count of Level 6

felony resisting law enforcement and one count of Class A misdemeanor

driving while suspended. On February 13, 2017, the trial court ordered interim

pre-trial release periods for Thomas so that she might self-report to community

corrections to monitor her alcohol consumption. However, the State filed

notices of violations of her pre-trial release periods on May 8, June 27, and

August 30, 2017, and May 15 and June 14, 2018, alleging that Thomas had

failed to appear for scheduled alcohol tests, had submitted multiple positive

tests for alcohol, and had failed to comply with monetary obligations.

[7] Before Thomas’s July 24, 2018, jury trial, the trial court granted Thomas’s

motion in limine excluding any evidence about conclusions reached by Officer

Miller as to whether Thomas was intoxicated on the night of the incident. The

trial court shared Thomas’s concerns that any conclusions about intoxication

might distract, confuse, or prejudice the jury since intoxication was not relevant

to any of the crimes with which she was charged. However, the order in limine

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 4 of 12 did not exclude testimony from Officer Miller about his general observations

regarding Thomas’s behavior, mood, or actions.

[8] During Thomas’s trial, Officer Miller testified about what happened that night.

According to Officer Miller, after Thomas remained adamant about driving her

vehicle home:

I told her her vehicle was inoperable because it only had three tires so it was gonna have to be towed. It was blocking traffic too, that was another reason it had to be towed and I asked her if she thought that she had maybe too much to drink to be driving in the first place and she stated, yes.

Id. at 35-36. Thomas immediately objected and moved for a mistrial,

contending that the State had violated the order in limine because Officer Miller

concluded that Thomas was intoxicated. After some discussion, the trial court

overruled Thomas’s objection and denied her motion for a mistrial, holding that

the order in limine had not been violated because Officer Miller made no such

conclusion. Rather, Officer Miller was merely opining about Thomas’s physical

state and relaying to the jury how Thomas answered his questions.

[9] After a short recess, Thomas requested that the trial court admonish the jury

about not considering intoxication during deliberations. The trial court agreed

and admonished the jury in the following way:

Before we pick back up, I just want to inform you; the Defendant is not charged with being intoxicated, she is not charge [sic] with operating a vehicle while intoxicated. If you look at the elements of the crimes that she is charged with, intoxication has nothing to do with that. That’s not an element. So, we just want to make sure

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 5 of 12 that’s clear, that this is not a drinking and driving case, it’s not a public intoxication case, you already have the list of the crimes alleged and the elements that make up those crimes.

Id. at 52. In response to this admonishment, one juror asked the trial court the

following question: “My main question on the whole thing is if [alcohol and

intoxication] keeps coming up, why was she not charge [sic] for that? Was he

not following procedure?” Id. The trial court responded by saying that the jurors

“can address that question if they choose to address that question[,]” id. at 53,

and reassured the jury that the case had nothing to do with intoxication.

Thomas renewed her motion for a mistrial, which the trial court denied.

[10] The jury found Thomas guilty as charged. On September 25, 2018, the trial

court sentenced Thomas to concurrent sentences of 730 days, with credit for 32

days and 698 days suspended to probation, for the resisting law enforcement

conviction and 333 days for the driving while suspended conviction. Thomas

now appeals.

Discussion and Decision [11] Thomas raises two issues on appeal: (1) the trial court erred when it denied her

motion for a mistrial after admitting testimony that potentially prejudiced the

jury, despite the trial court’s admonishment; and (2) the evidence was

insufficient to support her conviction for Level 6 felony resisting law

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 6 of 12 enforcement because there was no indication that she was formally ordered to

stop nor that she fled from the arresting officer.4

I. Mistrial [12] First, Thomas argues that the trial court erred when it denied her motion for a

mistrial after admitting testimony that potentially prejudiced the jury, despite

the trial court’s admonishment.

[13] A mistrial is an “extreme remedy” that should be used only when no other

curative measure will rectify the situation. Moore v. State, 652 N.E.2d 53, 57

(Ind. 1995). Upon review of a denial of a motion for a mistrial, the defendant

must demonstrate that the conduct complained of was both in error and had a

probable persuasive effect on the jury’s decision. Pierce v. State, 761 N.E.2d 821,

825 (Ind. 2002). More specifically:

[W]hen the trial court admonishes the jury to disregard the inadmissible evidence, the prejudicial impact of the evidence may be sufficiently mitigated. The question of whether a defendant was so prejudiced that the admonishment could not cure the error is one that must be determined by examining the facts of the particular case. The burden is on the defendant to show that he was harmed and placed in grave peril by the denial of the mistrial motion.

4 Thomas does not argue that the evidence was insufficient to support her conviction for Class A misdemeanor driving while suspended.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 7 of 12 Glenn v. State, 796 N.E.2d 322, 325 (Ind. Ct. App. 2003) (internal citations

omitted). The decision to grant or deny a mistrial is within the sound discretion

of the trial court, and we will reverse only when the trial court’s decision is

clearly against the logic and effect of the facts and circumstances. Stafford v.

State, 890 N.E.2d 744, 750 (Ind. Ct. App. 2008).

[14] Specifically, Thomas contends that the trial court should have declared a

mistrial because the State violated the order in limine when Officer Miller

testified about Thomas’s behavior. Furthermore, according to Thomas, the fact

that one juror appeared confused by the admonishment demonstrates that it

was not enough to cure jury prejudice.

[15] The order in limine specified that Officer Miller could not make any

conclusions about whether Thomas was intoxicated. However, the order did

not preclude Officer Miller from testifying about Thomas’s state or his general

impressions of her on the night of the incident. The contested section of Officer

Miller’s testimony reads as follows:

I told her her vehicle was inoperable because it only had three tires so it was gonna have to be towed. It was blocking traffic too, that was another reason it had to be towed and I asked her if she thought that she had maybe too much to drink to be driving in the first place and she stated, yes.

Tr. Vol. II p. 35-36. Officer Miller did not state that Thomas was intoxicated.

Rather, he was recounting the events of that evening and describing to the jury

how Thomas responded to his questions. Officer Miller’s testimony reflected his

general observations about Thomas’s appearance and behavior and not his Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 8 of 12 specific conclusions about her intoxicated state. Accordingly, we find that the

State, through Officer Miller’s testimony, did not violate the order in limine.

[16] Given that there was no violation of the order in limine, no admonishment was

strictly required. Nevertheless, to address concerns about jury confusion, the

trial court provided an appropriate admonishment and explanation. And, the

trial court’s responses to the juror’s question ensured that the jury understood

that intoxication was not pertinent to their deliberations. As such, the trial court

did not err by denying Thomas’s motion for a mistrial.

II. Sufficiency of Evidence [17] Next, Thomas argues that the evidence was insufficient to support her

conviction for Level 6 felony resisting law enforcement. Specifically, she insists

that she was not ordered to stop and that she did not flee.

[18] When reviewing the sufficiency of the evidence supporting a conviction, we

must affirm if the probative evidence and reasonable inferences drawn

therefrom could have allowed a reasonable trier of fact to find the defendant

guilty beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind.

2005). It is not our job to reweigh the evidence or to judge the credibility of the

witnesses, and we consider any conflicting evidence most favorably to the trial

court’s ruling. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005).

[19] To convict Thomas of Level 6 felony resisting law enforcement, the State was

required to prove beyond a reasonable doubt that, while using a vehicle to

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 9 of 12 commit the offense, Thomas knowingly or intentionally fled from a law

enforcement officer after the officer had, by visible or audible means—including

the operation of the law enforcement officer’s siren or emergency lights—

identified himself and ordered the person to stop. I.C. §§ 35-44.1-3-1(a)(3), -

1(b)(1)(A).

[20] A police officer’s order to stop need not be audible. Spears v. State, 412 N.E.2d

81, 83 (Ind. Ct. App. 1980). The order to stop may be given through visual

indicators. Fowler v. State, 878 N.E.2d 889, 894 (Ind. Ct. App. 2008). Evidence

of a proper visual order to stop is based on the circumstances surrounding the

incident and whether a reasonable person would have known that he or she had

been ordered to stop. Id. at 894-95.

[21] Thomas contends that Officer Miller’s use of the phrase “sit tight” did not

constitute a formal order to stop because it was a mere colloquialism. However,

Thomas fails to recognize that there were other indicators beyond “sit tight”

that contextualized the situation. For one, Officer Miller approached Thomas’s

vehicle fully dressed in his uniform. See Czobakowsky v. State, 566 N.E.2d 87, 89

(Ind. Ct. App. 1991) (holding that “the approach of a police officer, coupled

with other circumstances . . . would [] support the conclusion a visual order to

stop had been given”). Officer Miller repeatedly told Thomas that her vehicle

was inoperable, that she should call someone to pick her up, and that the

vehicle itself needed to be towed. After multiple attempts to prevent her from

driving home, Officer Miller asked for and attained Thomas’s driver’s license.

He then told her to “sit tight” and that he would “be right back with her.” Tr.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 10 of 12 Vol. II p. 57. While running a search of Thomas’s driver’s license and

ultimately discovering that it was suspended, Officer Miller witnessed Thomas

driving away.

[22] The totality of the circumstances here created both a visual and audible order to

stop. While a police officer’s utterance of “sit tight” alone could be seen as

ambiguous, there were numerous other actions taken by Officer Miller such that

a reasonable person would have known that she was ordered to stop. A person

in Thomas’s position would have understood that Officer Miller’s actions and

words taken together—including the instruction to “sit tight”—meant that she

could not leave the scene.

[23] Next, there is the question of whether Thomas fled from Officer Miller. This

Court has defined “flight” to mean “a knowing attempt to escape law

enforcement when the defendant is aware that a law enforcement officer has

ordered him to stop or remain in place once there.” Wellman v. State, 703

N.E.2d 1061, 1063 (Ind. Ct. App. 1998). Flight is not defined by the “speed,

mode, and manner of retreat[.]” Id.

[24] It did not matter that Thomas was only driving between fifteen and thirty miles

per hour and had only driven one to two blocks from the scene. The fact is that

Thomas drove away in an inoperable vehicle without her suspended driver’s

license after having been ordered to stop. A reasonable person in Thomas’s

position would have known that she could not leave, and therefore, any attempt

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 11 of 12 to leave the scene would constitute flight. Thus, there was sufficient evidence to

demonstrate that Thomas, in fact, fled from Officer Miller.

[25] Accordingly, the probative evidence and reasonable inferences drawn therefrom

could have allowed a reasonable trier of fact to find Thomas guilty of Level 6

felony resisting law enforcement. In sum, the evidence is sufficient.

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

Riley, J., and Bailey, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2533 | July 25, 2019 Page 12 of 12