Louis Cole v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 19, 2013
• Docket: 22A01-1211-CR-506
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), Jul 19 2013, 6:29 am this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

MATTHEW J. MCGOVERN GREGORY F. ZOELLER Anderson, Indiana Attorney General of Indiana

MICHAEL GENE WORDEN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

LOUIS COLE, ) ) Appellant-Defendant, ) ) vs. ) No. 22A01-1211-CR-506 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE FLOYD SUPERIOR COURT The Honorable Maria D. Granger, Judge Cause No. 22D03-1006-FD-1434

July 19, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge STATEMENT OF THE CASE

Louis Cole (“Cole”) appeals his conviction after a jury trial for resisting law

enforcement, a Class D felony.1

We affirm.

ISSUE

Whether the State presented sufficient evidence to support the conviction.

FACTS

On June 9, 2010, at approximately 6:00 p.m., New Albany Police Officer Kelly

Brown (“Officer Brown”) was patrolling in a marked police car when he saw a juvenile

female riding as a passenger on a motorcycle. The juvenile passenger was not wearing a

helmet, which is a traffic infraction. Officer Brown made a U-turn in order to stop the

motorcycle. As Officer Brown attempted to catch up to the motorcycle, he saw the

motorcyclist, later identified as Cole, turn the motorcycle into a public housing area.

Officer Brown activated his emergency lights to inform Cole that he wanted Cole to stop.

Instead, Cole began to go the wrong way on a one-way street.

Officer Brown continued to chase the motorcycle, and he saw Cole look back at

his car before beginning to travel down the sidewalk. Cole again looked back at Officer

Brown and then guided the motorcycle between the housing area buildings while driving

on the sidewalk.

1 Ind. Code § 35-44-3-3(b)(1) (subsequently repealed and re-codified at Ind. Code § 35-44.1-3-1 by Pub. L. No. 126-2012, §§ 53-54 (eff. Jul. 1, 2012)). 2 Officer Brown was unable to drive his car between the buildings, so he stopped

the car and began to follow on foot. At some point, Officer Brown radioed for assistance

and informed other officers that Cole was wearing an olive green shirt.

As Officer Brown got to the corner of the first building, he saw the female juvenile

passenger walking toward him. The disheveled juvenile identified herself as Cole’s

daughter, and she told Officer Brown that she had jumped off the motorcycle and had

fallen to the ground. She told Officer Brown that Cole had been taking her to see a pig

that was in the area.

Officer Brown then came upon Cole’s wife, Deborah, who identified Cole as the

operator of the motorcycle. She also told Officer Brown that Cole had taken their

daughter on the motorcycle to see a pig that was in the neighborhood.

New Albany Police Officer Matthew Edgell (“Officer Edgell”) pulled into the

housing project and observed Cole running while carrying an olive green t-shirt. When

Cole saw Officer Edgell, he stopped then turned around to walk away. Officer Edgell

ordered Cole to stop, which he did.

New Albany Police Officer Travis Nelson advised Cole of his Miranda rights, and

Officer Brown began to question him. At first, Cole acted as if he did not know what was

happening. However, when Officer Brown mentioned the pig, Cole admitted that he had

taken his daughter on the motorcycle to see the pig.

3 On June 10, 2010, Cole was charged with Class D felony resisting law

enforcement and was issued citations for an expired license plate and traveling the wrong

way on a one-way street.

On May 25, 2011, a jury found Cole guilty of resisting law enforcement charge.

The trial court subsequently sentenced Cole to an executed term of 966 days, with 483

days of jail time credit.

Cole now appeals.

DISCUSSION AND DECISION

Cole contends that the State’s evidence was insufficient to support his conviction

for resisting law enforcement. Specifically, he contends that “[t]he only evidence to

support the State’s assertion that Cole disregarded Officer Brown’s emergency lights is

Officer Brown’s testimony that Cole looked back toward his vehicle on two occasions as

Officer Brown followed Cole.” (Cole’s Br. 6). He further contends that “[i]t is pure

conjecture on the State’s part to infer that Cole either saw the lights or knew that the

lights were intended to order him to stop.” Id. He concludes that his conviction may not

rest on such conjecture.

Our standard of review for sufficiency claims is well settled. In reviewing

sufficiency of the evidence claims, this Court does not reweigh the evidence or assess the

credibility of witnesses. Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans.

denied. We consider only the evidence most favorable to the judgment, together with all

reasonable inferences drawn therefrom. Id. at 269-70. The conviction will be affirmed if

4 there is substantial evidence of probative value to support the conclusion of the trier of

fact. Id. at 270. Reversal is appropriate “only when reasonable persons would not be

able to form inferences as to each material element of the offense.” Alvies v. State, 905

N.E.2d 57, 61 (Ind. Ct. App. 2009). A conviction may be sustained on the testimony of a

single witness. Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans.

denied.

To convict a person of Class D resisting law enforcement, the State is required to

establish that the person knowingly or intentionally fled in a vehicle from an officer after

the officer had, “by visible or audible means, including operation of siren or emergency

lights, identified himself or herself and ordered the person to stop . . . . Ind. Code § 35-

44-3-3(b)(1). For purposes of the statute “both the police officer’s identification and his

order to stop may be accomplished by acts visible to the defendant.” Cole v. State, 475

N.E.2d 306, 309 (Ind. 1985) (holding that a police officer provided a sufficient visual

order to stop where the officer made a U-turn, followed the defendant and slowed his

police car when defendant stopped his car, and opened his car door and was existing

when defendant fled).

Here, Officer Brown made a U-turn to pursue Cole because of the traffic infraction

that he observed concerning the juvenile passenger on the motorcycle. Officer Brown

activated his emergency lights and watched as Cole turned the wrong way on a one-way

street and operated his motorcycle on the sidewalk. Cole twice looked back at Officer

Brown, and he eventually operated his vehicle on sidewalks between the buildings in the

5 housing area. As soon as Cole managed to get out of sight, he presumably caused his

daughter to jump from the motorcycle. Cole then hid the motorcycle and initially tried to

deceive the officers about his operation of the vehicle.

The jury was warranted in inferring from Cole’s actions that Officer Brown’s acts

were visible to Cole and that Cole knew that he had been ordered to stop the motorcycle.

The jury could further infer that Cole was attempting to evade Officer Brown. Under the

circumstances, the State met the requirements set forth by the statute. Accordingly, the

State presented sufficient evidence to support the conviction.

Affirmed.

KIRSCH, J., and VAIDIK, J., conur.