MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2019, 11:03 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
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Randall J. Hammond Curtis T. Hill, Jr. Leonard, Hammond, Thoma & Terrill Attorney General of Indiana Fort Wayne, Indiana Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shannon W. Kester, July 31, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-293 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1809-F6-1171
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 1 of 9 [1] Shannon W. Kester appeals his convictions of Level 6 felony resisting law
enforcement 1 and Class C misdemeanor reckless driving. 2 He presents one
issue on appeal, which we restate as whether the State presented sufficient
evidence to support his convictions. We affirm.
Facts and Procedural History [2] During the early morning hours of September 24, 2018, Detective Marc
Deshaies and Sergeant Gary Hensler of the City of Fort Wayne Police
Department were conducting surveillance in the area of Foster’s Bar and Grill.
Detective Deshaies was in plain clothes and drove an unmarked vehicle.
Sergeant Hensler was in full uniform and drove an unmarked vehicle. They
observed a Chevy Tahoe parallel park along the sidewalk just north of the bar’s
entrance. A man in a blue shirt exited the Tahoe, stood around the vehicle for a
few minutes, and then entered the bar. The man in the blue shirt then returned
to his vehicle, entered through the driver’s side door, remained in the vehicle for
twenty seconds, then walked to the rear of the vehicle. A white male
approached the man in the blue shirt from a parking lot north of the bar. The
two did not say anything to each other, but they did exchange something in a
1 Ind. Code § 35-44.1-3-1. 2 Ind. Code § 9-21-8-52.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 2 of 9 hand to hand transaction. The white male walked back in the direction of the
north parking lot and the man in the blue shirt walked back into the bar.
[3] Detective Deshaies believed the hand to hand transaction to be a narcotics
exchange and notified other officers in the area. Seconds later, Detective
Deshaies and Sergeant Hensler observed a vehicle 3 exit the north parking lot.
The vehicle drove southbound on Clinton Street, made a U-turn onto Lafayette
Street, and passed Detective Deshaies’ vehicle. Detective Deshaies identified
the driver to be the white male involved in the drug transaction, radioed the
vehicle’s direction, and asked other officers to intercede with a traffic stop.
Detective Deshaies recognized the driver but could not immediately recall his
name. At trial, Detective Deshaies identified Kester as that driver.
[4] Sergeant Hensler pulled out behind Kester as he travelled northbound on
Lafayette Street and followed Kester. Kester turned eastbound on Dalman
Avenue and then southbound on Warsaw Street. Sergeant Hensler continued
eastbound on Dalman but radioed Detective Matt Foote to follow Kester
southbound on Warsaw Street.
[5] Detective Foote was stationed near Foster’s Bar and Grill during the
surveillance operation. He followed Sergeant Hensler and Kester northbound
on Lafayette Street and then eastbound on Dalman Avenue. Detective Foote
3 Detective Deshaies testified the vehicle was a “black Grand Marquis.” (Tr. Vol. I at 12.) Sergeant Hensler testified the vehicle was a “silver colored Mercury.” (Id. at 22.) Detective Foote testified the vehicle was a “grey in color 2003 Mercury Grand Marquis.” (Id. at 32.)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 3 of 9 followed Kester when he turned southbound on Warsaw. He continued to
follow Kester and activated his emergency lights. Kester did not immediately
stop, so Detective Foote “chirped” his siren. (Tr. Vol. I at 34.) Kester started
to slow down as if he was going to pull over to the side of the road, but then he
rapidly accelerated. With Detective Foote in pursuit, Kester reached speeds of
approximately sixty to seventy miles per hour in areas with speed limits of
thirty to thirty-five miles per hour. Detective Foote testified that Kester “ran
multiple traffic control signs, was fish tailing around corners almost side
swiping cars, drove the wrong way on a one way street at least two times I
believe, ran off the roadway and into a ditch, came out of the ditch, drove
recklessly down an alley.” (Id. at 35-36.) During the pursuit, Detective Foote’s
breaks failed. He had to use the emergency break to slow his car and pulled
into a gas station. Detective Foote radioed that he was no longer involved in
the pursuit.
[6] After Sergeant Hensler stopped following Kester at the intersection of Dalman
and Warsaw, Sergeant Hensler executed a U-turn to try to get back to the area
of the pursuit. He heard over the radio that Detective Foote had lost visual
contact with the vehicle and proceeded to the general area where Detective
Foote last saw the vehicle and located it. The vehicle was empty when
Sergeant Hensler found it. He notified dispatch of the plate number and
learned the vehicle was registered to Kester.
[7] Officer Cory Troyer and Officer Stephanie Reid responded to the pursuit. They
were near the area where Kester’s vehicle was found, and Officer Troyer
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 4 of 9 observed a male in dark clothing run across the street. They followed the man
through yards and down an alley. Officer Troyer exited the vehicle and yelled
“stop police.” (Id. at 46.) The man fled from Officer Troyer, and Officer
Troyer continued to yell “stop police.” (Id.) Officer Troyer learned the suspect
was Shannon Kester, and he yelled “Shannon get on the ground.” (Id.) Kester
slowed down, began to put his hands out and stoop down, but then he stood up
and continued to run away. Officer Troyer caught up to Kester after Kester fell
down a couple times. He warned Kester to stay on the ground or he would use
his taser. Kester got back up and began to run again, and Officer Troyer
deployed his taser. Officer Troyer and Officer Reid then apprehended Kester.
[8] The State charged Kester with Level 6 felony resisting law enforcement and
Class C misdemeanor reckless driving. The trial court held a bench trial on
December 13, 2018. The court found Kester guilty of both charges. The court
sentenced Kester to two-and-a-half-years incarceration for the resisting law
enforcement charge, with 183 days executed and the remainder suspended to
probation. The court also sentenced Kester to an executed term of twenty days
for the reckless driving charge. The court ordered the two sentences to run
concurrently.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2019, 11:03 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
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Randall J. Hammond Curtis T. Hill, Jr. Leonard, Hammond, Thoma & Terrill Attorney General of Indiana Fort Wayne, Indiana Lauren A. Jacobsen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Shannon W. Kester, July 31, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-293 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Wendy W. Davis, Appellee-Plaintiff Judge Trial Court Cause No. 02D04-1809-F6-1171
May, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 1 of 9 [1] Shannon W. Kester appeals his convictions of Level 6 felony resisting law
enforcement 1 and Class C misdemeanor reckless driving. 2 He presents one
issue on appeal, which we restate as whether the State presented sufficient
evidence to support his convictions. We affirm.
Facts and Procedural History [2] During the early morning hours of September 24, 2018, Detective Marc
Deshaies and Sergeant Gary Hensler of the City of Fort Wayne Police
Department were conducting surveillance in the area of Foster’s Bar and Grill.
Detective Deshaies was in plain clothes and drove an unmarked vehicle.
Sergeant Hensler was in full uniform and drove an unmarked vehicle. They
observed a Chevy Tahoe parallel park along the sidewalk just north of the bar’s
entrance. A man in a blue shirt exited the Tahoe, stood around the vehicle for a
few minutes, and then entered the bar. The man in the blue shirt then returned
to his vehicle, entered through the driver’s side door, remained in the vehicle for
twenty seconds, then walked to the rear of the vehicle. A white male
approached the man in the blue shirt from a parking lot north of the bar. The
two did not say anything to each other, but they did exchange something in a
1 Ind. Code § 35-44.1-3-1. 2 Ind. Code § 9-21-8-52.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 2 of 9 hand to hand transaction. The white male walked back in the direction of the
north parking lot and the man in the blue shirt walked back into the bar.
[3] Detective Deshaies believed the hand to hand transaction to be a narcotics
exchange and notified other officers in the area. Seconds later, Detective
Deshaies and Sergeant Hensler observed a vehicle 3 exit the north parking lot.
The vehicle drove southbound on Clinton Street, made a U-turn onto Lafayette
Street, and passed Detective Deshaies’ vehicle. Detective Deshaies identified
the driver to be the white male involved in the drug transaction, radioed the
vehicle’s direction, and asked other officers to intercede with a traffic stop.
Detective Deshaies recognized the driver but could not immediately recall his
name. At trial, Detective Deshaies identified Kester as that driver.
[4] Sergeant Hensler pulled out behind Kester as he travelled northbound on
Lafayette Street and followed Kester. Kester turned eastbound on Dalman
Avenue and then southbound on Warsaw Street. Sergeant Hensler continued
eastbound on Dalman but radioed Detective Matt Foote to follow Kester
southbound on Warsaw Street.
[5] Detective Foote was stationed near Foster’s Bar and Grill during the
surveillance operation. He followed Sergeant Hensler and Kester northbound
on Lafayette Street and then eastbound on Dalman Avenue. Detective Foote
3 Detective Deshaies testified the vehicle was a “black Grand Marquis.” (Tr. Vol. I at 12.) Sergeant Hensler testified the vehicle was a “silver colored Mercury.” (Id. at 22.) Detective Foote testified the vehicle was a “grey in color 2003 Mercury Grand Marquis.” (Id. at 32.)
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 3 of 9 followed Kester when he turned southbound on Warsaw. He continued to
follow Kester and activated his emergency lights. Kester did not immediately
stop, so Detective Foote “chirped” his siren. (Tr. Vol. I at 34.) Kester started
to slow down as if he was going to pull over to the side of the road, but then he
rapidly accelerated. With Detective Foote in pursuit, Kester reached speeds of
approximately sixty to seventy miles per hour in areas with speed limits of
thirty to thirty-five miles per hour. Detective Foote testified that Kester “ran
multiple traffic control signs, was fish tailing around corners almost side
swiping cars, drove the wrong way on a one way street at least two times I
believe, ran off the roadway and into a ditch, came out of the ditch, drove
recklessly down an alley.” (Id. at 35-36.) During the pursuit, Detective Foote’s
breaks failed. He had to use the emergency break to slow his car and pulled
into a gas station. Detective Foote radioed that he was no longer involved in
the pursuit.
[6] After Sergeant Hensler stopped following Kester at the intersection of Dalman
and Warsaw, Sergeant Hensler executed a U-turn to try to get back to the area
of the pursuit. He heard over the radio that Detective Foote had lost visual
contact with the vehicle and proceeded to the general area where Detective
Foote last saw the vehicle and located it. The vehicle was empty when
Sergeant Hensler found it. He notified dispatch of the plate number and
learned the vehicle was registered to Kester.
[7] Officer Cory Troyer and Officer Stephanie Reid responded to the pursuit. They
were near the area where Kester’s vehicle was found, and Officer Troyer
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 4 of 9 observed a male in dark clothing run across the street. They followed the man
through yards and down an alley. Officer Troyer exited the vehicle and yelled
“stop police.” (Id. at 46.) The man fled from Officer Troyer, and Officer
Troyer continued to yell “stop police.” (Id.) Officer Troyer learned the suspect
was Shannon Kester, and he yelled “Shannon get on the ground.” (Id.) Kester
slowed down, began to put his hands out and stoop down, but then he stood up
and continued to run away. Officer Troyer caught up to Kester after Kester fell
down a couple times. He warned Kester to stay on the ground or he would use
his taser. Kester got back up and began to run again, and Officer Troyer
deployed his taser. Officer Troyer and Officer Reid then apprehended Kester.
[8] The State charged Kester with Level 6 felony resisting law enforcement and
Class C misdemeanor reckless driving. The trial court held a bench trial on
December 13, 2018. The court found Kester guilty of both charges. The court
sentenced Kester to two-and-a-half-years incarceration for the resisting law
enforcement charge, with 183 days executed and the remainder suspended to
probation. The court also sentenced Kester to an executed term of twenty days
for the reckless driving charge. The court ordered the two sentences to run
concurrently.
Discussion and Decision [9] In assessing whether there was sufficient evidence to support a conviction, we
consider the probative evidence in the light most favorable to the verdict. Burns
v. State, 91 N.E.3d 635, 641 (Ind. Ct. App. 2018). “It is the fact-finder’s role,
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 5 of 9 not that of appellate courts, to assess witness credibility and weigh the evidence
to determine whether it is sufficient to support a conviction.” Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). “Reversal is appropriate only when no reasonable
fact-finder could find the elements of the crime proven beyond a reasonable
doubt. Thus, the evidence is not required to overcome every reasonable
hypothesis of innocence and is sufficient if an inference may reasonably be
drawn from it to support the verdict.” Burns, 91 N.E.3d at 641 (internal citation
omitted).
Resisting Law Enforcement [10] A person commits resisting law enforcement if the person “knowingly or
intentionally: . . .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.” Ind. Code § 35-44.1-3-1. The offense is a Level 6 felony if the person
uses a vehicle to commit the offense. Id.
[11] Kester argues the State failed to present sufficient evidence that he was driving
the vehicle involved in the police chase. He notes neither Detective Deshaies
nor Sergeant Hensler saw him get into the Grand Marquis. Kester also notes
an inconsistency in the officers’ testimony about the color of the vehicle
involved in the police chase, as Detective Deshaies testified the vehicle was
black, Sergeant Hensler stated the vehicle was a silver, and Detective Foote
indicated the vehicle was grey.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 6 of 9 [12] However, both Detective Deshaies and Sergeant Hensler identified Kester as
the driver of the Grand Marquis. After the Grand Marquis made a U-turn onto
Lafayette Street, it passed Detective Deshaies’ vehicle going the opposite
direction, such that Detective Deshaies could easily see the driver. Detective
Deshaies testified the white male he observed driving the Grand Marquis was
the same white male he had observed in the hand to hand transaction. At trial,
Detective Deshaies identified Kester as the white male driver. Sergeant Hensler
also testified that Kester was involved in the hand to hand transaction and that
he was the individual driving the Grand Marquis. Kester was the registered
owner of the Grand Marquis, and Officer Troyer apprehended Kester near
where the vehicle was abandoned. The State presented sufficient evidence to
prove Kester was the driver of the Grand Marquis.
[13] Five different officers involved in the surveillance, pursuit, and apprehension of
Kester testified at trial. While there is an inconsistency in the testimony
regarding the color of the vehicle, it is the province of the trier of fact to resolve
inconsistencies in witness testimony. Embrey v. State, 989 N.E.2d 1260, 1268
(Ind. Ct. App. 2013). We cannot say the testimony was so contradictory and
unsupported by circumstantial evidence that no reasonable fact finder would
believe it. See Smalley v. State, 732 N.E.2d 1231, 1236 (Ind. Ct. App. 2000) (“It
is well settled that it is the jury’s exclusive prerogative to weigh conflicting
evidence . . . and thus we will not interfere with the jury’s decision.”).
Therefore, we hold the State presented sufficient evidence to support Kester’s
conviction for Level 6 felony resisting law enforcement. See Mason v. State, 944
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 7 of 9 N.E.2d 68, 71 (Ind. Ct. App. 2011) (holding there was sufficient evidence
defendant resisted law enforcement when he used a vehicle to flee from officers
responding to a burglary), trans. denied.
Reckless Driving [14] A person commits reckless driving if the person drives at such an unreasonably
high rate of speed as to endanger the safety or property of others. Ind. Code §
9-21-8-52. Detective Foote testified the Grand Marquis drove at nearly twice
the legal limit in a residential area, ran multiple traffic control signs, went the
wrong way down a one-way street, ran off the road, and almost side swiped
other vehicles. And, as we held above, the testimony of Detective Deshaies and
Sergeant Hensler demonstrates Kester was driving that car. Consequently, the
State presented sufficient evidence to support Kester’s conviction for reckless
driving. See Crussel v. State, 29 N.E.3d 746, 751 (Ind. Ct. App. 2015) (holding
sufficient evidence supported defendant’s conviction for reckless driving when
he drove more than thirty-five miles per hour over the speed limit on a dark
road with cross streets and houses along it).
Conclusion [15] The State presented sufficient evidence to support Kester’s convictions of
resisting law enforcement and reckless driving. Therefore, we affirm.
Affirmed.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 8 of 9 Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-293 | July 31, 2019 Page 9 of 9