FILED Nov 21 2017, 9:16 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Ruth Ann Johnson Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Matthew D. Anglemeyer Jodi Kathryn Stein Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Nathaniel Thrash, November 21, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1603-CR-494 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Hooper, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G25-1509-F6-34723
Riley, Judge.
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 1 of 21 STATEMENT OF THE CASE [1] Appellant-Defendant, Nathaniel Thrash (Thrash), appeals his conviction for
two Counts of resisting law enforcement, as a Class A misdemeanor, and as a
Level 6 felony, Ind. Code § 35-44.1-3-1(a)(1).
[2] We affirm.
ISSUES [3] Thrash presents three issues on appeal, which we restate as the following:
(1) Whether the trial court abused its discretion by admitting certain evidence;
(2) Whether the State presented sufficient evidence to support Thrash’s Level 6
felony resisting law enforcement conviction; and
(3) Whether Thrash’s conviction for two Counts of resisting law enforcement
violated the prohibition against double jeopardy under the Indiana
Constitution.
FACTS AND PROCEDURAL HISTORY [4] At approximately 7:00 p.m. on September 29, 2015, Indianapolis Metropolitan
Police Department officers Christopher Cooper (Officer Cooper) and Derek
Jackson (Officer Jackson) were dispatched to an apartment building located at
3640 North Meridian Street in Indianapolis, Indiana. Upon arriving, the
officers encountered a woman who identified herself as Thrash’s ex-girlfriend.
Thrash’s ex-girlfriend was visibly upset and she explained to the officers that
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 2 of 21 Thrash was not supposed to be there, and she believed Thrash had a pending
warrant of arrest. Moments later, the officers made eye contact with Thrash,
and saw him run west in the common hallway and toward the back of the
building. Thrash, however, did not exit the apartment building.
[5] Thrash’s ex-girlfriend allowed the officers inside the building, and the officers
pursued Thrash in the direction he ran. When the officers reached the end of
the hallway, they observed a stairwell leading to dark hallway basement that
had numerous locked doors. While going down to the basement, the officers
had their guns drawn and flashlights on. In addition, the officers loudly
announced their presence by stating, “POLICE!” (Transcript p. 44). While
Officer Jackson was searching the laundry room at the base of the staircase,
Officer Cooper proceeded down the narrow hallway. There, Officer Cooper
came across Thrash standing in a dark corner. Thrash’s hands were in his coat
pockets. Officer Cooper yelled several times, “[S]how me your hands!” but
Thrash did not comply. (Tr. p. 76). Upon hearing the commotion in the back,
Officer Jackson joined Officer Cooper. Both officers ordered Thrash, on
multiple occasions to show them his hands, but Thrash did not obey their
commands. As such, Officer Cooper holstered his gun, approached Thrash,
and forcefully grabbed his right arm in an attempt to remove Thrash’s hands
from his coat pocket. Officer Jackson did the same for Thrash’s left arm.
Thrash, however, flexed his muscles and jerked his arms away. Based on
Thrash’s resistance, Officer Cooper effectuated a “leg sweep,” which brought
Thrash down to the ground. (Tr. p. 79). While lying on the ground, Thrash
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 3 of 21 refused to remove his hands from underneath his body. The officers bent over
and restrained Thrash’s hands. As Officer Jackson got Thrash off the ground,
he saw Officer Cooper bent over and Officer Cooper was experiencing pain in
his back. Thrash thereafter voiced to Officer Jackson that he was sorry for
resisting arrest, and for Officer Cooper’s injury.
[6] On September 30, 2015, the State filed an Information, charging Thrash with
Count I, resisting law enforcement, a Level 6 felony; and Count II, resisting law
enforcement, a Class A misdemeanor. A jury trial was held on January 26,
2016. On the morning of Thrash’s jury trial, the trial court conducted a
suppression hearing pursuant to Thrash’s motion to exclude the officers’
hearsay testimony regarding his ex-girlfriend’s statement that Thrash had a
pending warrant of arrest. Both Officers Cooper and Jackson testified, and
reiterated the hearsay statement over Thrash’s objection. At the close of the
suppression hearing, Thrash’s counsel expressed to the trial court that he had
no issue with the officers’ hearsay testimony, so long as their testimonies left
out the warrant aspect. Thrash’s counsel was concerned that the “warrant
aspect” would be “too toxic,” and was “worried the jury is going to hear that
[Thrash] has a warrant and just shut down.” (Suppression Tr. p. 27).
Following Thrash’s argument, the trial court ruled as follows:
Now Officers, [I] need you both listen to me very carefully, State already said what you’re going to be allowed to say. I’m going to order over the Defense objection on a limiting instruction. When the jury is in here and you’re testifying you can say that she said she doesn’t want him here. . . .
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 4 of 21 ****
And that she told you she thinks he has a warrant. Alright. We can’t get into her head while she’s not here, so the fact that she said he has a warrant I’m not going to even say that that’s true. So you can say that she expressed to you that she thought he had a warrant. Okay. I don’t want to hear a word about wanted for escape. I don’t want to hear a word about anything else that she said or I will mis-try (sic) this thing. Alright. Now this is a pretty close call, but I’m using my discretion. State, I’m going to order you to prepare that limiting instruction. I’m going to order that that be given as well. We’re showing [Thrash’s] objection. Don’t forget to object during trial to preserve it, Defense. Don’t forget to object during trial, too, when we get to that point. So be very careful, [o]fficers. Because I am, again, using my discretion under the rules of evidence to let some things in here but it is, it is concerning. Okay.
(Suppression Tr. p. 28). After the jury was empaneled and sworn in, Thrash’s
trial proceeded. Officer Cooper testified that he had been dispatched to
Thrash’s ex-girlfriend’s building to investigate a disturbance call. Officer
Cooper then stated what Thrash’s ex-girlfriend had reported to him, but
Thrash’s counsel interjected. During a side bar, Thrash’s counsel renewed his
objection regarding what Thrash’s ex-girlfriend reported as hearsay. Upon the
conclusion of the side bar, the trial court overruled Thrash’s objection and it
admonished the jury as follows:
Ladies and Gentleman (sic), the officer is about to talk about a witness who is not here and is not subject to cross examination. You’re only to consider what the witness says to show why the officer did what he did. You are not to consider whether what she said is being offered by the State to prove the truthfulness of
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 5 of 21 what she said. You’re only to consider it to show why the officers did what they did. With that admonishment[,] I will allow the State to ask the question over Defense objection.
(Tr. p. 40). Officer Cooper subsequently testified that after he encountered
Thrash’s ex-girlfriend, she stated that Thrash “was inside the apartment
building and she thinks he has a warrant.” (Tr. p. 40). Officer Cooper
described how Thrash resisted arrest, and that he was injured as result of
Thrash’s conduct of resisting arrest. Similarly, Officer Jackson testified that
when he met Thrash’s ex-girlfriend outside the apartment building, “she said
that her ex-boyfriend [,Thrash,] was in the building. He wasn’t supposed to be
there and she thinks he may have had a warrant.” (Tr. p. 75). Officer Jackson
correspondingly testified about Thrash’s acts of resistance, and he stated that
Thrash “expressed that he was sorry that he resisted” and “was sorry that
Officer Cooper had gotten hurt.” (Tr. p. 82). At the close of the evidence, the
jury returned a guilty verdict on both Counts of resisting law enforcement. On
February 17, 2016, the trial court conducted a sentencing hearing. At the close
of the hearing, the trial court sentenced Thrash to executed concurrent
sentences of 730 days with 670 days suspended for the Level 6 felony
conviction, and 365 days, with 305 days suspended for the Class A
misdemeanor conviction.
[7] Thrash now appeals. Additional facts will be provided as necessary.
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 6 of 21 DISCUSSION AND DECISION I. Admission of the Evidence
[8] Thrash argues that the trial court abused its discretion by admitting the officers’
testimonies regarding his ex-girlfriend’s statement that he possibly had a
pending warrant of arrest. Thrash argues that the statements were inadmissible
hearsay.
[9] A trial court has broad discretion in ruling on the admissibility of evidence, and,
on review, we will disturb its ruling only on a showing of abuse of discretion.
Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000). When
reviewing a decision under an abuse of discretion standard, we will affirm if
there is any evidence supporting the decision. Id. A claim of error in the
admission or exclusion of evidence will not prevail on appeal unless a
substantial right of the party is affected. Ind. Evidence Rule 103(a). In
determining whether an error in the introduction of evidence affected a
defendant’s substantial rights, we assess the probable impact of the evidence on
the jury. Sparkman, 722 N.E.2d at 1262.
[10] Hearsay is an out-of-court statement offered for “the truth of the matter
asserted,” and it is generally not admissible as evidence. Ind. Evidence Rule
801(c)(2), 802. “Whether a statement is hearsay will most often hinge on the
purpose for which it is offered.” Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014)
(quoting United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998)). The State
contends that the officers’ hearsay testimony was offered for the purpose of
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 7 of 21 describing the police investigation. We have held that out-of-court statements
made to law enforcement are non-hearsay if introduced primarily to explain
why the investigation proceeded as it did. See Patton v. State, 725 N.E.2d 462,
464 (Ind. Ct. App. 2000) (finding children’s out-of-court statements that a man
was inside a convenience store admissible to show why the police officer
entered the building).
[11] Our supreme court explained the purpose and dangers of course-of-
investigation testimony in Blount:
Although course-of-investigation testimony may help prosecutors give the jury some context, it is often of little consequence to the ultimate determination of guilt or innocence. The core issue at trial is, of course, what the defendant did (or did not do), not why the investigator did (or did not do) something. Thus, course-of- investigation testimony is excluded from hearsay only for a limited purpose: to bridge gaps in the trial testimony that would otherwise substantially confuse or mislead the jury. . . Indeed, such testimony is of little value absent a direct challenge to the legitimacy of the investigation. . . There is a risk the jury will rely upon the out-of-court assertion as substantive evidence of guilt— rather than for the limited purpose of explaining [the] police investigation—and the defendant will have no chance to challenge that evidence through cross-examination. . .
Blount, 22 N.E.3d at 565-66 (internal citations omitted). The Blount court
continued to state that for the above reasons, “we must pay careful attention to
the purpose for which an out-of-court statement is offered. The ultimate
inquiry is: Was the out-of-court statement used primarily to show the truth of
its content, constituting inadmissible hearsay, or merely to explain subsequent
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 8 of 21 police action, excluded from hearsay?” Id. To answer this question, the Blount
court relied on the three-part test expressed in Craig v. State, 630 N.E.2d 207,
211 (Ind.1994): First, the court is to consider whether the challenged hearsay
statement asserts a fact susceptible of being true or false. Craig, 630 N.E.2d at
211. Next, the court considers the evidentiary purpose for the proffered
statement. Id. If the evidentiary purpose is to prove the fact asserted, and the
statement is neither from a witness nor from a party as described in Indiana
Evidence Rule 801(d) and none of the hearsay exceptions apply, the statement
is hearsay and a timely objection should be sustained. Id. Finally, if the
proponent of the statement urges admission for a purpose other than to prove
the truth, the court should consider whether the fact to be proved is relevant to
some issue in the case, and whether the danger of unfair prejudice that may
result from its admission outweighs its probative value. Id.
[12] Thrash argues that his ex-girlfriend’s out-of-court statement to the officers that
she believed Thrash had a warrant is an assertion susceptible of being true or
false. Turning to the first question articulated in Craig, we answer it in the
affirmative. As in Craig, the State contends that the statement’s purpose was to
document the course of police investigation, that is a “purpose other than to
prove a fact which is asserted.” Id. Thus, we consider the last criteria in Craig:
“Is the fact to be proved under the suggested purpose for the statement relevant
to some issue in the case, and does any danger of prejudice outweigh its
probative value?” Id.
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 9 of 21 [13] In Hernandez v. State, 785 N.E.2d 294, 298 (Ind. Ct. App. 2003), trans. denied, we
determined the relevance of evidence of “course of police work” testimony was
slight when the genesis of the investigation was not relevant to any contested
issue in the case. We held, however, that the prejudicial impact was great
where the defendant was charged with promoting prostitution and the
challenged testimony indicated the police began their investigation because they
had received complaints about prostitution connected with the business. Id.
Similarly, we conclude that in the case before us, Thrash’s ex-girlfriend out-of-
court statement that Thrash had a warrant had prejudicial impact. Here, both
officers would have accomplished their goal of testifying why they pursued
Thrash by only reiterating Thrash’s ex-girlfriend’s statement that Thrash was
not meant to be inside her apartment building. As correctly noted by Thrash,
the out-of-court statement by his ex-girlfriend did not provide evidence of
Thrash’s guilt to any of the resistance charges against him, and the reason the
police pursued Thrash was not a contested issue at trial.
[14] Although Thrash’s claim satisfies the Craig test, it fails on harmless error. In the
instant case, during the State’s examination-in-chief, following Officer Cooper’s
hearsay testimony as to why he pursued Thrash on the scene, the trial court
issued a limiting instruction to the jury to consider the officers’ hearsay
statement regarding Thrash having a pending warrant of arrest, for their urged
non-hearsay purpose rather than for their truth. Our court presumes that a jury
follows the instructions that it is given. See R.T. v. State, 848 N.E.2d 326, 332
(Ind. Ct. App. 2006), trans. denied. Thrash makes no claim that the jury did not
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 10 of 21 follow the trial court’s instructions. Further, there was ample evidence to
support Thrash’s two convictions of resisting law enforcement, such as refusing
to remove his hands from his coat pockets, putting his hand underneath his
body, and injuring an officer during the struggle. Thus, the erroneous
admission of the statement regarding Thrash having a possible warrant was
harmless.
II. Sufficiency of the Evidence
[15] Thrash claims that the State presented insufficient evidence to support his
conviction for his Level 6 felony resisting law enforcement. When reviewing a
claim of insufficient evidence, it is well established that our court does not
reweigh evidence or assess the credibility of witnesses. Walker v. State, 998
N.E.2d 724, 726 (Ind. 2013). Instead, we consider all of the evidence, and any
reasonable inferences that may be drawn therefrom, in a light most favorable to
the verdict. Id. We will uphold the conviction “‘if there is substantial evidence
of probative value supporting each element of the crime from which a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt.’” Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind.
2004)).
[16] Subsection (a) of section 35-44.1-3-1 sets out the acts that constitute the crime of
resisting law enforcement:
A person who knowingly or intentionally:
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 11 of 21 (1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer’s duties;
(2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court; or
(3) flees from a law enforcement officer after the officer has, by visible or audible means, including operation of the law enforcement officer’s siren or emergency lights, identified himself or herself and ordered the person to stop;
I.C. § 35-44.1-3-1(a). The last sentence of subsection (a) states that resisting law
enforcement is a Class A misdemeanor “except as provided in subsection (b).”
Subsection (b) then identifies a variety of circumstances that enhance the
seriousness of the crime, and therefore the sentencing range:
The offense under subsection (a) is a:
(1) Level 6 felony if:
(A) the offense is described in subsection (a)(3) and the person uses a vehicle to commit the offense; or
(B) while committing any offense described in subsection (a), the person draws or uses a deadly weapon, inflicts bodily injury on or otherwise causes bodily injury to another person, or operates a vehicle in a manner that creates a substantial risk of bodily injury to another person;
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 12 of 21 ****
I.C. § 35-44.1-3-1. Thrash argues that evidence of Officer Cooper’s injury was
not sufficient to support his Level 6 felony because there was no evidence that
he inflicted the alleged injury. Thrash and the State direct us to three cases
regarding causation of bodily injury while resisting arrest: Whaley v. State, 843
N.E.2d 1 (Ind. Ct. App. 2006), trans. denied; Smith v. State, 21 N.E.3d 121 (Ind.
Ct. App. 2014); and Moore v. State, 49 N.E.3d, 1095, 1108 (Ind. Ct. App. 2016).
[17] In Whaley, Whaley, attempted to prevent police officers from handcuffing him
when he was lying on the ground by placing his arms underneath his body.
Whaley, 843 N.E.2d at 5. Two officers had to hit his forearms in order to bring
his arms behind his back to handcuff him, and both officers injured their wrists
and hands in the process. Id. Because Whaley had caused these injuries, his
conviction for resisting law enforcement was elevated to a Class D felony. Id.
at 10. At trial and on appeal, Whaley argued that his conviction should not
have been elevated to a Class D felony because the officers themselves caused
their injuries when they hit him. Id. We upheld Whaley’s conviction,
concluding that the officers’ injuries “were directly related to and caused by
Whaley’s resisting arrest.” Id. at 11.
[18] In Smith, Smith, also resisted being handcuffed. Smith, 21 N.E.3d at 123. As a
result, an officer “forcefully put all [his] body weight onto [Smith’s] body[.]”
Id. The officer told Smith to put her hands behind her back or he would “take
[her] to the ground,” but she still did not comply. Id. The officer then tried to
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 13 of 21 give Smith a “knee strike” by “apply[ing] some pain to . . . a nerve that [ran] to
the muscle of [her] leg,” but that did not have the desired effect, so the officer
“pulled her arm . . . possibly as hard as [he] could [and] [they] ended up on the
ground.” Id. In this process, the officer received lacerations to his knuckles and
fingertips. Id. As a result, Smith was charged with, and convicted of, resisting
arrest as an elevated Class D felony based on the officer’s injuries. Id. at 124.
On appeal, Smith argued that she did not cause the officer’s injuries and that
her conviction should not have been enhanced to a felony. We agreed with
Smith that she was a “passive part of the encounter” and “took no actions
toward” the officer. Id. at 125. We also stated that we did not “believe a
person who is thrown to the ground necessarily ‘inflicts’ or ‘causes’ an injury
suffered by the person who throws her to the ground.” Id. As a result, we
concluded that Smith did not cause the officer’s injuries and that her conviction
should not have been elevated to a felony. Id. at 126. We distinguished this
conclusion from our decision in Whaley by noting that “unlike Whaley, Smith
did not create a scenario in which [the officer’s] only option in handcuffing her
was to remove her hands from a location in which he could not reach.” Id.
[19] Finally, in Moore v. State, 49 N.E.3d 1095, 1108 (Ind. Ct. App. 2016), a police
officer fell down while engaged in a foot pursuit and was injured. Id. at 1099.
The Moore court noted that, in Whaley, Whaley was the direct cause of the
officers’ injuries because he left the officers no other choice but to hit his arms
and that “this meant that the officers’ injuries were a highly foreseeable result of
Whaley’s actions” and that, “[i]n contrast, in Smith, the officer had other
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 14 of 21 options, and his decision to take Smith ‘to the ground’ and injure himself was
not as foreseeable.” Id. at 1108. In light of the Whaley and Smith cases, we held
that a defendant’s acts of resistance must be a proximate cause of the injury,
and not merely a contributing cause. Id. at 1107-08. We noted, a contributing
cause is “a factor that—though not the primary cause—plays a part in
producing a result.” Id. at 1107 (quoting Abney v. State, 766 N.E.2d 1175, 1178
(Ind. 2002)). We described that
[a] finding of proximate cause embodies a value judgment as to the extent of the physical consequences of an action for which the actor should be held responsible. Accordingly, “proximate cause questions are often couched in terms of ‘foreseeability;’ an actor is not held responsible for consequences which are unforeseeable.” It follows that, where an intervening cause is claimed as superseding the defendant’s actions, the intervening cause must be unforeseeable to relieve the defendant of criminal liability.
Id. at 1107–08 (quoting Gibbs v. State, 677 N.E.2d 1106, 1109 (Ind. Ct. App.
1997)). Applying the proximate cause standard, the majority in Moore found
the evidence was insufficient to prove that the defendant’s actions caused the
arresting officer’s injuries. Id. at 1108. The court noted that the officer would
not have been injured if he had not pursued the defendant, but reasoned “that
fact is only sufficient to prove that Moore was a contributing cause of the
injury” and that “[t]he actual cause of [the officer’s] fall [was] not clear from the
record.” Id. at 1108.
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 15 of 21 [20] Thrash claims the facts of his case are akin to the Smith case, and he suggests he
played a minimal role leading to Officer Cooper’s back injury, thus, we should
reverse his Level 6 felony resisting law enforcement conviction. Thrash
additionally makes a similar argument to that in Moore. Specifically, Thrash
argues that the
exact cause of Officer Cooper’s injuries are unclear from the record, but one thing is clear–Officer Cooper caused them himself. And Officer Cooper had other options besides throwing Thrash to the ground. A taser would likely have been even more effective than a strength contest, and would have required little to no physical effort from Officer Cooper.”
(Appellant’s Br. p. 22). We disagree with Thrash. Under the circumstances of
the case, we find that Thrash’s case is more akin to the Whaley case and is
distinguishable from Smith and Moore. In terms of proximate cause as
enunciated in the Whaley case, Thrash created a scenario which directedly
produced Officer Cooper’s injuries. After Officer Cooper effected a leg sweep
which made Thrash fall, he and Officer Jackson followed Thrash to the ground.
Like the defendant in Whaley, Thrash continued to resist arrest from both
officers by refusing to remove his hands/arms from underneath his body.
When the struggle was over, Officer Cooper was unable to stand and he
experienced back pain. By his own admission, Thrash stated that he “was sorry
that Officer Cooper had gotten hurt.” (Tr. p. 82). At Thrash’s jury trial, Officer
Cooper testified that prior to his encounter with Thrash, he had not experienced
any lower back pain. Officer Cooper further testified that he later visited a
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 16 of 21 clinic and was diagnosed with a “sprain” and was off work for about a week.
(Tr. p. 69). Based on the Whaley holding, and upon our review of the testimony
most favorable to the Level 6 felony conviction, we conclude that the State
presented sufficient evidence to prove that Thrash was the proximate cause of
Officer Cooper’s back injury which was inflicted or otherwise caused while
Thrash resisted arrest.
III. Double Jeopardy
[21] Lastly, Thrash claims that his two convictions for resisting law enforcement
violate the Double Jeopardy Clause under the Indiana Constitution.
Specifically, he argues that the convictions violate the actual-evidence test.
Whether convictions violate double jeopardy is a question of law which we
review de novo.” Id. Vermillion v. State, 978 N.E.2d 459, 464 (Ind. Ct. App.
2012).
[22] Article 1, section 14 of the Indiana Constitution provides that “[n]o person shall
be put in jeopardy twice for the same offense.” The Indiana Supreme Court has
determined that two or more offenses constitute the same offense for double
jeopardy purposes “if, with respect to either the statutory elements of the
challenged crimes or the actual evidence used to obtain convictions, the
essential elements of one challenged offense also establish the essential elements
of another challenged offense.” Frazier v. State, 988 N.E.2d 1257, 1262 (Ind. Ct.
App. 2013) (citing Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999)).
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 17 of 21 [23] In order to find a double jeopardy violation under the actual evidence test, a
reviewing court must conclude there is a reasonable possibility that the
evidentiary facts used by the factfinder to establish the essential elements of an
offense for which the defendant was convicted or acquitted may also have been
used to establish all the essential elements of a second challenged offense.
Garrett v. State, 992 N.E.2d 710, 722–23 (Ind.2013). “Application of this test
requires the court to ‘identify the essential elements of each of the challenged
crimes and to evaluate the evidence from the jury’s perspective. . .’” Lee v. State,
892 N.E.2d 1231, 1234 (Ind. 2008) (quoting Spivey v. State, 761 N.E.2d 831, 832
(Ind. 2002)). In determining the facts used by the fact-finder, “it is appropriate
to consider the charging information, jury instructions, . . . arguments of
counsel” and other factors that may have guided the jury’s determination. Lee,
892 N.E.2d at 1234 (citing Spivey, 761 N.E.2d at 832, and Richardson, 717
N.E.2d at 54 n.48).
[24] Thus, under the actual evidence test, “it is not sufficient merely to show that the
same evidence may have been used to prove a single element of two criminal
offenses.” Henderson v. State, 769 N.E.2d 172, 177 (Ind. 2002). Rather, “in
order for there to be a double jeopardy violation under the actual-evidence test
the evidentiary footprint for all the elements required to prove one offense must
be the same evidentiary footprint as that required to prove all the elements of
another offense.” Berg v. State, 45 N.E.3d 506, 510 (Ind. Ct. App. 2015).
[25] First, we note that there is no requirement that police officers inform a person
that he is under arrest before that person can legally resist. Only when a person
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 18 of 21 “flees” law enforcement is there a requirement that law enforcement make
some form of outward communication with a person before that person can
resist. See I.C. § 35-44.1-3-1(a)(3). For the Class A misdemeanor, the State did
not advance a theory that Thrash’s resistance was by fleeing, but rather alleged
and presented evidence that Thrash forcibly resisted, obstructed, or interfered
with law enforcement officers while the officers were lawfully engaged in the
execution of their duties pursuant to Indiana Code Section 35-44.1-3-1(a)(1).
For the Level 6 felony as charged, the State alleged that while Thrash was
resisting arrest, he inflicted bodily injury or otherwise caused injury to Officer
Cooper. See I.C. § 35-44.1-3-1(b)(1)(B).
[26] Our review of the preliminary instructions shows that the trial court instructed
the jury to find Thrash guilty of the Class A misdemeanor if the State
established beyond a reasonable doubt that Thrash forcibly resisted arrest from
Officers Cooper and Jackson. For the felony charge, the trial court required an
additional showing by the State that Thrash had inflicted bodily injury to
Officer Cooper while resisting arrest. During trial, the State panned out details
of Thrash’s act of resistance where he ran from the officers, hid in a dark
basement, refused to remove his hands from his pockets after several
commands, and broke free from the officers by jerking his arms away. In
addition, the State presented evidence that Officer Cooper was injured while
trying to subdue Thrash, who was resisting arrest, thereby supporting the Level
6 felony charge.
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 19 of 21 [27] Within the context of multiple resisting law enforcement convictions, we have
held that “[a] defendant may be convicted of multiple counts of resisting law
enforcement when he has committed more than one of the acts enumerated
under [Indiana Code Section 35-44.1-3-1].” Williams v. State, 755 N.E.2d 1183,
1186 (Ind. Ct. App. 2001). Thus, we have upheld two convictions for resisting
law enforcement when one involved the defendant’s act of fleeing from officers
under Indiana Code Section 35-44.1-3-1(a)(3), and the other involved the
defendant’s infliction of bodily injury upon an officer while resisting under
Indiana Code Section 35-44.1-3-1(b)(1)(B). Id.
[28] Although Thrash may have acted with a common purpose, the two Counts for
resisting arrest involved discrete elements and were proved by discrete evidence.
Specifically, the misdemeanor conviction was based on Thrash’s actions of
resisting arrest from Officers Cooper and Jackson, and the felony conviction
was based on Officer Cooper’s back injury which was inflicted by Thrash’s
conduct of resisting arrest. Accordingly, we conclude that Thrash’s multiple
convictions for resisting arrest are not barred by the prohibition against double
jeopardy. See Williams, 755 N.E.2d at 1186.
CONCLUSION [29] Based on the above, we conclude that the trial court did not abuse its discretion
by admitting hearsay testimony by the officers regarding Thrash having a
possible warrant of arrest; there was sufficient evidence to support Thrash’s
Level 6 felony resisting law enforcement; and there is no double jeopardy
violation in Thrash’s convictions for two Counts of resisting law enforcement. Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 20 of 21 [30] Affirmed.
[31] Robb, J. and Pyle, J. concur
Court of Appeals of Indiana | Opinion 49A02-1603-CR-494 | November 21, 2017 Page 21 of 21