Travis Moore v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: May 3, 2012
• Docket: 49A02-1109-CR-807
• Status: Unpublished

Opinion

Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before FILED any court except for the purpose of May 03 2012, 8:21 am

establishing the defense of res judicata, collateral estoppel, or the law of the case. CLERK of the supreme court, court of appeals and tax court

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

DARREN BEDWELL GREGORY F. ZOELLER Marion County Public Defender Attorney General of Indiana Appellate Division Indianapolis, Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

TRAVIS MOORE, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1109-CR-807 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable James B. Osborn, Judge Cause No. 49F15-1103-FD-015865

May 3, 2012

MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge Case Summary

After a bench trial, Travis Moore (“Moore”) was convicted of Theft, as a Class D

felony1; Resisting Law Enforcement, as a Class A misdemeanor2; Criminal Mischief, as a

Class B misdemeanor3; and Disorderly Conduct, as a Class B misdemeanor.4 He now

appeals, raising for our review the single issue of whether there was sufficient evidence to

support his conviction for Resisting Law Enforcement.

We affirm.

Facts and Procedural History

On March 7, 2011, Moore was shopping in the Buckle store at the Castleton Square

Mall in Indianapolis. Megan Camp (“Camp”), an employee at the store, asked Moore if he

wanted to try on several pairs of jeans he was carrying, and admitted him to a dressing room.

Moore spent several minutes in the dressing room without changing clothes, and Camp asked

whether he needed any assistance finding other sizes. Moore agreed, and Camp located other

pairs of jeans for Moore. After some time, Moore purchased a pair of jeans.

After completing his purchase, Moore remained in the store for several minutes while

he browsed through the girl’s clothing section and later moved to the boy’s clothing section.

Throughout this period, Moore fidgeted with something in the back pocket of his pants and

actively avoided contact with store employees. Camp found this behavior suspicious and

1 Ind. Code § 35-43-4-2(a). 2 I.C. § 35-44-3-3(a)(1). 3 I.C. § 35-43-1-2(a)(1). 4 I.C. § 35-45-1-3(a)(2). 2 notified her supervisors, Jessica Pittenger (“Pittenger”), the store manager, and Jarred

Williams (“Williams”), an area manager for several Buckle stores in Indiana. While Camp

went to the back of the store to review Moore’s actions in the store on a surveillance video,

Pittenger and Williams continued to observe Moore as another employee, Jennifer Knight

(“Knight”), offered to assist him in shopping.

Soon after this, Moore left the store. When he did so, a shoplifting sensor alarm

sounded. Pittenger, Williams, and Knight followed Moore into the mall’s common area, told

him that the shoplifting alarm had sounded, and asked to check the bags he was carrying to

see if something he was carrying had caused the alarm to sound. Moore refused and jerked

his bags away from Knight, who had moved to check their contents.

Moore then moved to leave the mall, and Williams called 911 to notify police of a

shoplifting incident. Pittenger, Williams, Knight, and mall security personnel followed

Moore out of the mall and across the mall’s parking lot as Moore hurried toward a nearby

restaurant.

Indianapolis Metropolitan Police Department Officer Ivan Ivanov (“Officer Ivanov”)

had been notified of Williams’s call and intercepted Moore in the restaurant’s parking lot.

Officer Ivanov approached Moore, who refused to stop until Officer Ivanov ran toward him

with a drawn Taser gun. Moore stopped; Officer Ivanov placed him in handcuffs and began

searching Moore’s person and shopping bags. An officer assisting Officer Ivanov found part

of a shoplifting sensor used by Buckle in Moore’s back pants pocket, and Officer Ivanov

found two pairs of Buckle jeans: one that Moore had purchased in a bag from the Castleton

3 Buckle store, and another in a bag from another store. The jeans in the bag from the other

store had a tear in the rear pocket where the Buckle shoplifting sensor had once been, and a

review of Moore’s receipts did not reveal that Moore had purchased that pair of jeans

himself.

Though Moore was initially cooperative with Officer Ivanov, he quickly became

hostile with Officer Ivanov and the Buckle employees, yelling and using harsh language

toward them and the patrons of a nearby restaurant. Nevertheless, after telling Moore to stop

yelling, Officer Ivanov placed Moore in the backseat of his police vehicle because it was cold

outside. Even inside the car, Moore continued to yell at the others. He eventually rolled

down one of the police car’s windows and continued to shout at Officer Ivanov. Officer

Ivanov opened the door, rolled the window up, and closed the door again.

Moore then began to kick the inside of the police car while again yelling at police and

other bystanders. Officer Ivanov again opened the door, this time to remove Moore from the

car and have him sit on the ground to minimize Moore’s ability to flee the scene on foot.

Moore refused to sit, so Officer Ivanov pressed Moore’s hand to assist him downward.

Moore pulled away, and instead lowered himself onto his knees. Soon after this, Moore got

up, then ran toward and sat down on a curb.

To this point, Moore’s hands had been handcuffed behind his back. Once seated,

however, Moore was able to bring his hands from behind his body to the front of his body.

Officer Ivanov recognized this as a sign that Moore would try to escape and instructed Moore

to return his hands to a position behind his back. Moore refused, and Officer Ivanov and a

4 colleague then re-handcuffed Moore’s hands behind his back. Soon afterward, a Marion

County Sheriff’s Office van arrived to transport Moore from the scene.

On March 8, 2011, Moore was charged with Theft, Resisting Law Enforcement,

Criminal Mischief, and Disorderly Conduct. On May 23, 2011, Moore waived a jury trial,

and the trial court set the matter for a bench trial.

On July 11, 2011, a bench trial was conducted, at the end of which the trial court

found Moore guilty of all charges. On August 8, 2011, the trial court entered its judgment of

conviction against Moore for each offense and sentenced him to one year of imprisonment

for Theft, with 355 days suspended, and ten days for each of the other offenses, with all

sentences run concurrently. The court also ordered Moore to serve probation and perform

160 hours of community service.

This appeal ensued.

Discussion and Decision

Moore challenges his conviction for Resisting Law Enforcement, as a Class A

misdemeanor, after a bench trial, contending that there was insufficient evidence to support

the conviction. Our standard of review in such cases is well settled:

When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008). “We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.

Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).

5 To convict Moore of Resisting Law Enforcement as charged, the State was required to

prove beyond a reasonable doubt that Moore knowingly or intentionally forcibly resisted,

obstructed, or interfered with Officer Ivanov while he was lawfully engaged in the execution

of his duties. I.C. § 35-44-3-3(a)(1); App. 20. The adverb, “forcibly,” modifies each of the

three forms of conduct—resisting, obstructing, or interfering—in the statute, and is thus itself

an element of the offense. Spangler v. State, 607 N.E.2d 720, 723-24 (Ind. 1993).

To sustain a conviction for forcible resistance, obstruction, or interference with law

enforcement, it is not sufficient that an individual actively rather than passively resisted the

efforts of law enforcement. Id. As our Supreme Court held in Spangler, “the legislature

intended the term ‘forcible’ to connote some form of violent action toward another.” Id. The

force used need not rise to the level of “mayhem,” however, Graham v. State, 903 N.E.2d

963, 965 (Ind. 2009), and even “modest” force may suffice to sustain a conviction. Id. at

966.

Moore does not contend that he did not use force during the incident on March 7,

2011. Rather, he argues that force must be directed toward police officers to constitute

forcible resistance, obstruction, or interference within the meaning of Section 35-44-3-3(a).

We do not agree. In Guthrie v. State, we sustained the defendant’s conviction for resisting

law enforcement when he “lean[ed] his body back and stiffen[ed] his legs.” 720 N.E.2d 7, 9

(Ind. Ct. App. 1999), trans. denied. In Wellman v. State, the defendant resisted leaving his

home by bracing himself against a door frame and later dropping to his knees, telling the

arresting officer that he would have to drag him to the officer’s car. 703 N.E.2d 1061, 1062

6 (Ind. Ct. App. 1998). In neither of these cases did the defendants use force directly toward

police officers, though they used force to prevent police from arresting them.

The same is true here. Officer Ivanov testified that Moore kicked the inside of his car,

which led him to remove Moore from the car to prevent public property from being damaged.

This impeded Officer Ivanov’s investigation of the 911 call involving Moore’s conduct.

Once out of the car, Moore pulled away from Officer Ivanov before dropping to his knees.

He then ran to a curb and moved his still-restrained hands from behind his back to the front

of his body, an indication that he might attempt to flee, and refused to move his hands from

his front to his back. Taken together, there is thus sufficient evidence from which a fact-

finder could conclude beyond a reasonable doubt that Moore forcibly resisted, obstructed, or

interfered with Officer Ivanov’s lawful execution of his duties as a police officer.

Affirmed.

ROBB, C.J., and MATHIAS, J., concur.