Willie Dixon v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 24, 2017
• Docket: 49A02-1606-CR-1400
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Apr 24 2017, 9:18 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals and Tax Court 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 Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana

Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Willie Dixon, April 24, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1606-CR-1400 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven Rubick, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G07-1511-CM-40734

Vaidik, Chief Judge.

Court of Appeals of Indiana | Memorandum Decision 49A1606-CR-1400 | April 24, 2017 Page 1 of 5 Case Summary [1] Willie Dixon appeals his conviction for resisting law enforcement, challenging

the sufficiency of the State’s evidence. We affirm.

Facts and Procedural History [2] On the night of November 16, 2015, Indianapolis Metropolitan Police

Department Officer Babacar Diouf responded to a report of a man (Dixon)

pushing a lawnmower down the middle of Kessler Boulevard East Drive just

west of Binford Boulevard, a busy stretch of road in northeast Indianapolis.

Officer Diouf pulled his car alongside Dixon and spoke with him, telling him

that “he was putting his life in danger, also putting other motorists in danger as

well for being in the middle of the road.” Tr. p. 5. Officer Diouf asked Dixon

to walk on the side of the road, and while Dixon initially took the position that

walking down the middle was actually safer because of curves in the road, he

eventually agreed to stay on the side (there were no sidewalks along the relevant

section of road).

[3] After Officer Diouf helped Dixon through an intersection, however, he saw that

Dixon had returned to walking in the middle of the road. This prompted

Officer Diouf to approach Dixon with his lights on and give him a “clear

command” to be on the side of the road. Id. at 6. Instead, Dixon “took off,”

“[r]unning, pushing the mower in the middle of the road.” Id. at 6-7. Officer

Diouf “advised him to stop,” id. at 7, but Dixon kept running. Officer Diouf

Court of Appeals of Indiana | Memorandum Decision 49A1606-CR-1400 | April 24, 2017 Page 2 of 5 then pulled his car in front of Dixon “to try and cut him off.” Id. Dixon

stopped momentarily before running around the car and continuing down the

road. Officer Diouf followed Dixon on foot and told him he would be tased if

he did not stop. Hearing this, Dixon stopped, and Officer Diouf arrested him.

[4] The State charged Dixon with resisting law enforcement by fleeing as a Class A

misdemeanor. After a bench trial at which Officer Diouf and then Dixon

offered their versions of events, the trial court found Dixon guilty as charged

and sentenced him to the time he had already served.

[5] Dixon now appeals.

Discussion and Decision [6] Dixon challenges the sufficiency of the evidence supporting his conviction. In

considering such a claim, we consider only the probative evidence and

reasonable inferences supporting the conviction. Wilson v. State, 39 N.E.3d 705,

716 (Ind. Ct. App. 2015), trans. denied. We do not reweigh the evidence or

assess witness credibility. Id. We consider conflicting evidence most favorably

to the conviction. Id. We will affirm the conviction unless no reasonable fact-

finder could find the elements of the crime proven beyond a reasonable doubt.

Id. It is not necessary that the evidence overcome every reasonable hypothesis

of innocence. Id. The evidence is sufficient if an inference may reasonably be

drawn from it to support the judgment. Id.

Court of Appeals of Indiana | Memorandum Decision 49A1606-CR-1400 | April 24, 2017 Page 3 of 5 [7] In order to convict Dixon of resisting law enforcement by fleeing as a Class A

misdemeanor, the State was required to prove beyond a reasonable doubt that

Dixon knowingly or intentionally fled from Officer Diouf after Officer Diouf,

by visible or audible means, including operation of his siren or emergency

lights, identified himself and ordered Dixon to stop. See Ind. Code § 35-44.1-3-

1(a)(3). Dixon argues that “he did not hear Officer Diouf order him to stop”

and that, even if he had, he had “no duty to stop” because “he had done

nothing wrong[.]” Appellant’s Br. pp. 11, 14. We address each argument in

turn.

[8] There are two problems with Dixon’s claim that he did not hear Officer Diouf

order him to stop. First, in light of Officer Diouf’s testimony that he “advised

[Dixon] to stop,” Dixon’s claim is a request for us to reweigh the evidence,

which we will not do. See Wilson, 39 N.E.3d at 716. Second, even if we were

to assume that Dixon did not hear Officer Diouf’s order, it is undisputed that

Officer Diouf then pulled his car in front of Dixon “to try and cut him off.” Tr.

p. 7. This, alone, constituted an order to stop under the resisting statute, which

provides that such an order can be given “by visible or audible means.” I.C. §

35-44.1-3-1(a)(3) (emphasis added).

[9] Dixon’s argument that he had “no duty to stop” relates to our Supreme Court’s

decision in Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014). There, the Court held

that even though the text of the resisting-by-fleeing statute does not include a

requirement that the order to stop be lawful, the statute must be construed as

such “[t]o avoid conflict with the Fourth Amendment.” Id. at 1256. In other

Court of Appeals of Indiana | Memorandum Decision 49A1606-CR-1400 | April 24, 2017 Page 4 of 5 words, the statute must be “understood to require that such order to stop rest on

probable cause or reasonable suspicion, that is, specific, articulable facts that

would lead the officer to reasonably suspect that criminal activity is afoot.” Id.

at 1255. Seizing on the term “criminal activity,” Dixon contends that Officer

Diouf’s order to stop was not lawful because Dixon had at most committed a

“traffic infraction” under Indiana Code section 9-21-17-14, which requires a

pedestrian walking on a road to keep to the side. What Dixon fails to

acknowledge, however, is that a police officer’s observation of a traffic violation

provides the requisite probable cause or reasonable suspicion to justify a stop.

State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014). In short, “criminal activity,” for

purposes of Gaddie, includes traffic infractions. Given the fact that Dixon was

violating Section 9-21-17-14, his argument that he did not have a duty to stop

when Officer Diouf ordered him to do so necessarily fails.

[10] Affirmed.

Bradford, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A1606-CR-1400 | April 24, 2017 Page 5 of 5