James L. Hebner v. State of Indiana ( 2012 )

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 Jul 31 2012, 8:48 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
of the supreme court,
case. court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
J. CLAYTON MILLER GREGORY F. ZOELLER
Jordan Law, LLC Attorney General of Indiana
Richmond, Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES L. HEBNER, )
)
Appellant-Defendant, )
)
vs. ) No. 89A04-1111-CR-605
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE WAYNE SUPERIOR COURT
The Honorable Charles K. Todd, Jr., Judge
Cause No. 89D01-0907-FC-18
July 31, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
James L. Hebner appeals his three convictions for resisting law enforcement, one
as a class D felony and two as class A misdemeanors.1 Hebner raises three issues, which
we revise and restate as:
I. Whether the evidence is sufficient to support Hebner’s conviction
for resisting law enforcement as a class D felony; and
II. Whether one or more of Hebner’s convictions for resisting law
enforcement violate Indiana’s prohibition against double jeopardy or
the continuing crime doctrine.
We affirm in part and reverse in part.
The relevant facts follow. At approximately 12:15 a.m. on July 14, 2009,
Richmond Police Officers Ami Miller and Robert Lipps were dispatched to the location
of an apartment in Richmond, Indiana, and had information of a possible party involving
juveniles smoking marijuana and that one of the residents of the apartment, Hebner, had
an outstanding arrest warrant.
Officers Miller and Lipps arrived at the apartment, which was an upstairs unit in a
multi-unit building, knocked loudly on the door, and announced that they were police
officers. As the officers turned away to walk down the stairs, Officer Lipps observed
Hebner “open the door, peek out, [see] that [he] was a police officer and then slam[] the
door,” and the officers returned to the apartment and continued to knock. Transcript at
234. Hebner did not answer. At some point, a man exited another apartment unit and
stated that his brother Hebner lived at the apartment to which the officers were
dispatched. The officers contacted the property owner and made arrangements for the
1
Ind. Code § 35-44-3-3 (Supp. 2006) (subsequently amended by Pub. L. No. 100-2010, § 6, Pub.
L. No. 102-2010, § 2 (eff. July 1, 2010); Pub. L. No. 42-2011, § 74 (eff. Apr. 20, 2011); Pub. L. 126-
2012, § 53 (eff. July 1, 2012) (provision recodified at Ind. Code § 35-44.1-3-1)).
2
owner to bring a key to the building, and the officers waited for the person to arrive.
Also, other officers, including Officers Michelle Kircher and David Glover, set up a
perimeter around the building.
Officer Kircher, who stood on the north side of the building and watched the
windows, observed a man matching Hebner’s description run or sprint from an alley next
to the building, radioed that information to dispatch and the other officers, and then
pursued Hebner on foot. Officer Kircher shouted verbal commands for Hebner to stop
and identified herself as a police officer, Hebner did not comply, and Officer Kircher
eventually lost sight of Hebner. Officer Glover walked up the street shining his flashlight
through the houses to check to see if he could see anyone between the houses. Officer
Glover observed Hebner hiding behind a bush on the corner of a garage, and Hebner
looked in Officer Glover’s direction and then “took off running.” Id. at 212. Officer
Glover shouted the command of “stop, police” and advised other officers of his location.
Id. Officer Glover pursued Hebner, Hebner jumped over a fence, and Officer Glover,
when he was within approximately fifteen feet of Hebner, discharged his Taser which
caused Hebner, who was wearing only blue jeans, to fall to the ground. Other officers
arrived to assist Officer Glover, and Hebner was placed under arrest on his outstanding
warrant and for fleeing law enforcement and transported to a hospital for a medical
evaluation pursuant to standard department procedure after a Taser is deployed. At the
hospital, Hebner’s demeanor was quiet and cooperative. Hebner asked Officer Kircher to
loosen his handcuffs, and, after Captain Thomas Porfidio approved, Officer Kircher
3
loosened the handcuff on one of Hebner’s wrists. Hebner was examined and released
from the hospital, and officers prepared to transport Hebner to jail.
As they exited the hospital, Officer Lipps walked in front of Hebner, Officer
Kircher walked with Hebner, and Captain Porfidio walked several feet behind Officer
Kircher. At a point when Officer Lipps was at the door of the hospital and exiting into
the parking lot, Hebner slipped his right hand out of the handcuffs, shoved past Officer
Lipps, and ran out the door. Officers ordered Hebner to stop, and Officer Kircher pulled
out her Taser and deployed it in an attempt to stop Hebner but missed. Hebner continued
down a very steep hill, falling and rolling to a sidewalk at the bottom, and then ran into a
wooded area, and Officers Lipps and Kircher pursued Hebner. The officers commanded
Hebner to stop, but Hebner did not comply and “was sprinting as fast as he could sprint.”
Id. at 266. The officers followed Hebner into the woods, where their radios were not
working and there was little or no light, and determined Hebner’s location by his “feet
breaking twigs, stepping on leaves, [and his] body falling down every ten seconds.” Id.
at 265.
At a point when he was about ten to fifteen feet away from Hebner, Officer Lipps
observed Hebner attempting to climb a tree and approximately five to ten feet off of the
ground in the tree. Officer Lipps ordered Hebner to stop and come down, and Hebner
jumped out of the tree, landed on the ground, turned away from Officer Lipps and “was
in [] what you would call the runner’s position – a crouch position getting ready to run.”
Id. at 269. Officer Lipps then stated Hebner: “stop, police, turn around, show me your
hands,” and Hebner began to run. Id. Officer Lipps, who was approximately ten to
4
twelve feet away from Hebner, then deployed his Taser, which had some effect on
Hebner because Officer Lipps observed Hebner’s “body lock up for just a second.” Id. at
271. Officer Lipps ran toward Hebner to grab his hands to try to re-handcuff him, but
Hebner turned around, shoved Officer Lipps, and “started to throw punches at” Officer
Lipps. Id. The altercation between Hebner and Officer Lipps “went on for several
minutes,” and Hebner “was doing everything he could to get away from [Officer Lipps]
and [Officer Lipps] was doing everything [he] could to keep [Hebner] in custody.” Id. at
273. Hebner “landed several blows on [Officer Lipps’s] upper body and . . . a couple in
[his] neck and . . . chin,” and Hebner spat on Officer Lipps. Id. at 274.
Officer Lipps was eventually able to knock Hebner off balance, place Hebner on
the ground, and place Hebner’s hands behind his back when Officer Kircher arrived to
assist him in handcuffing Hebner. Hebner was “flailing” and “just swinging and kicking
and trying to get away.” Id. at 350. Officer Kircher attempted to assist Officer Lipps
with gaining control of Hebner, and Hebner struck Officer Kircher, who was kneeling on
the ground, as he struggled. When Officers Lipps and Kircher placed Hebner on his feet
to exit the woods, Hebner was uncooperative and let his body “go limp” so that he
“wouldn’t walk out of the woods on his own power,” and the officers “had to pick him up
and then push him forward to get him out of the woods.” Id. at 279. About half way out
of the woods, Captain Porfidio arrived and assisted Officer Lipps with escorting Hebner
out of the woods while Officer Kircher used her flashlight to light the way. The officers
eventually returned with Hebner to the hospital’s emergency room. Officer Kircher was
also admitted to the hospital due to a knee injury.
5
On July 14, 2009, the State charged Hebner with Count I, escape as a class C
felony; Count II, battery by bodily waste as a class D felony; Count III, resisting law
enforcement as a class D felony; Count IV, resisting law enforcement as a class A
misdemeanor; and Count V, resisting law enforcement as a class A misdemeanor. A jury
found Hebner guilty on all five counts. The court sentenced Hebner to six years and one
hundred eighty days under Count I, two years each under Counts II and III, and one year
each under Counts IV and V, with all sentences to be served concurrently.
I.
The first issue is whether the evidence is sufficient to sustain Hebner’s conviction
for resisting law enforcement as a class D felony under Count III. When reviewing the
claim of sufficiency of the evidence, we do not reweigh the evidence or judge the
credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look
only to the probative evidence supporting the verdict and the reasonable inferences
therein to determine whether a reasonable trier of fact could conclude the defendant was
guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value
to support the conviction, it will not be set aside. Id.Ind. Code 35-44-3-3(a) provided at the time of the offense that “[a] person who
knowingly or intentionally. . . 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 . . . commits resisting law enforcement, a Class A
misdemeanor . . . .” Ind. Code § 35-44-3-3(b) provided that the offense is a class D
felony if “while committing any offense described in subsection (a), the person draws or
6
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 . . . .” In Count III, the State alleged that Hebner “did knowingly
or intentionally forcibly resist, obstruct, and/or interfere with Michelle Kircher, a law
enforcement officer with the Richmond Police Department, to wit: fought and/or
struggled with Officer Kircher, while said officer was lawfully engaged in her duties as a
law enforcement officer, to-wit: attempting to restrain and/or arrest . . . Hebner, said acts
resulting in bodily injury to Officer Kircher, to-wit: injured knee and/or physical pain,
contrary to Indiana law.” Appellant’s Appendix at 48.
Hebner argues that he did not cause bodily injury to Officer Kircher and thus that
this court should vacate his enhanced class D conviction under Count III or, at most,
enter a judgment of conviction for resisting law enforcement as a class A misdemeanor.2
Hebner argues that Officer Kircher’s knee was already injured when she chased him and
that Officer Kircher admitted that she may have merely aggravated a prior injury. The
State argues that Officer Kircher testified that when she chased Hebner into the woods
she was fine, that when she came out of the woods her knee was painfully swollen and
aggravated, that she was struck by Hebner in the struggle to handcuff him and was on her
knees during that time, that the jury was free to infer that Hebner’s resistance to law
enforcement caused the injury, and thus that the evidence is sufficient to support
Hebner’s class D felony conviction under Count III. In his reply brief, Hebner argues
that Officer Kircher had a preexisting knee injury, that neither the State nor Officer
2
Hebner does not argue that the evidence is insufficient to support his other convictions.
7
Kircher can reduce Officer Kircher’s knee injury to any specific blow or strike by
Hebner, and that “Officer Kircher’s injury was not directly related to and caused by
Hebner’s resisting arrest.” Appellant’s Reply Brief at 3.
The record reveals that Officer Kircher testified that she was injured during the
struggle to apprehend Hebner. Officer Kircher indicated that, while she was kneeling on
the ground fighting with Hebner, Hebner struck her and kicked at her. Officer Kircher
testified that her knee did not hurt at the time she was leaving the hospital and that it did
hurt following the altercation with Hebner in the woods.
Based upon our review of the testimony most favorable to the conviction, we
conclude that a reasonable jury could have found that, as charged under Count III,
Hebner inflicted or otherwise caused the bodily injury sustained by Officer Kircher and
that sufficient evidence exists from which the jury could find Hebner guilty beyond a
reasonable doubt of resisting law enforcement as a class D felony. See Whaley v. State,
843 N.E.2d 1, 10-11 (Ind. Ct. App. 2006) (holding that the evidence was sufficient to
sustain the defendant’s convictions for two counts of resisting law enforcement as class D
felonies where the defendant argued that the officers inflicted the injuries upon
themselves in attempting to handcuff him), trans. denied.
II.
The next issue is whether one or more of Hebner’s convictions for resisting law
enforcement violate double jeopardy or the continuing crime doctrine.3 Hebner maintains
that he should not held liable for more than one count of resisting law enforcement when
3
Hebner does not challenge his convictions under Counts I or II.
8
the charges stemmed from a single incident, regardless of the number of police officers
resisted. Hebner cites Armstead v. State, 549 N.E.2d 400 (Ind. Ct. App. 1990), and states
that “[t]he State may argue two incidents of resisting law enforcement occurred: the first
incident having occurred prior to Hebner’s arrest and the second incident having occurred
after he ran from the hospital” and that “[a]ccordingly, the State may argue the multiple
resisting law enforcement convictions should stand.” Appellant’s Brief at 9. Hebner
asserts however that “the State failed to distinguish separate incidents within Counts III,
IV, and V of the Information” and that “two of the three counts of resisting law
enforcement (Counts III, IV, and V) should be vacated because the harm caused was the
same regardless of the number of police officers resisted.” Id. at 9-10. Hebner further
maintains that his convictions under both Counts III and IV violate double jeopardy,
specifically that “[t]he evidentiary facts establishing any one or more elements of Count
III establishes all the essential elements of Count IV,” that “[t]herefore, either Count III
or IV should be vacated to eliminate the double jeopardy issue,” and that “Count III
should be the count vacated.” Id. at 10-11.
The State argues that Count III related to the injury of Officer Kircher, that Count
IV stemmed from the point when Hebner struggled against Officer Lipps in the woods,
and that Count V related to when Hebner fled both Officers Lipps and Kircher despite
their commands to stop. The State asserts that Armstead is distinguishable in that the
facts “truly consisted of one episode of criminal conduct—Armstead was resisting three
officers at one point in time.” Appellee’s Brief at 9. The State cites Whaley v. State, 843
N.E.2d 1, for the proposition that where multiple convictions arise where separate victims
9
are involved, no double jeopardy violation exists. The State also argues that the charges
under Counts III, IV, and V required the State to prove separate victims and separate acts
under discrete charges under different sections of the statute and that there is no double
jeopardy violation here. In his reply brief, Hebner argues that he “did not commit
resisting law enforcement resulting in any victimized person” and that “[t]herefore, two
of the three counts of resisting law enforcement . . . should be vacated because the harm
allegedly caused was the same regardless of the number of police officers resisted.”
Appellant’s Reply Brief at 5.
The continuing crime doctrine defines those instances where a defendant’s
conduct amounts only to a single chargeable crime and prevents the State from charging a
defendant twice for the same continuous offense. Koch v. State, 952 N.E.2d 359,
373 (Ind. Ct. App. 2011) (citing Buchanan v. State, 913 N.E.2d 712, 720 (Ind. Ct. App.
2009), trans. denied), trans. denied. This doctrine “essentially provides that actions that
are sufficient in themselves to constitute separate criminal offenses may be so
compressed in terms of time, place, singleness of purpose, and continuity of action as to
constitute a single transaction.” Id. (citing Firestone v. State, 838 N.E.2d 468, 471 (Ind.
Ct. App. 2005)). The doctrine applies in those situations where a defendant is charged
multiple times with one offense or when a defendant is charged with an offense and a
lesser included offense. Id. (citing Walker v. State, 932 N.E.2d 733, 737 (Ind. Ct. App.
2010), reh’g denied).4
4
In Borum v. State, this court stated:
We note that in Walker, this court explained the relationship between the
10
Ind. Code § 35-44-3-3(a) provided:
A person who knowingly or intentionally:
(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;
*****
(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;
commits resisting law enforcement, a Class A misdemeanor, except as
provided in subsection (b).
continuous crime doctrine and the prohibition against double jeopardy based upon the
Indiana Constitution. 932 N.E.2d at 736. Walker argued that the continuous crime
doctrine was not under the purview of double jeopardy; however, we examined Boyd v.
State, 766 N.E.2d 396 (Ind. Ct. App. 2002), and held:
The statutory elements and actual evidence tests [from
Richardson] are designed to assist courts in determining
whether two separate chargeable crimes amount to the
“same offense” for double jeopardy purposes. The
continuous crime doctrine does not seek to reconcile the
double jeopardy implications of two distinct chargeable
crimes; rather, it defines those instances where a
defendant’s conduct amounts only to a single chargeable
crime. In doing so, the continuous crime doctrine
prevents the state from charging a defendant twice for
the same continuous offense.
[Boyd, 766 N.E.2d at 400]. Finding that the defendant subjected the
victim to one continuous episode of confinement, we vacated the
attempted criminal confinement conviction. Id. at 401.
Boyd thus clarified that while Indiana’s double jeopardy clause prohibits
convicting a defendant of two or more distinct chargeable crimes when
they constitute the “same offense” under Richardson, it also prohibits
convicting a defendant multiple times for the same continuous offense.
951 N.E.2d 619, 630 n.3 (Ind. Ct. App. 2011) (quoting Walker, 932 N.E.2d at 736-737).
11
Ind. Code § 35-44-3-3(b) provided that the offense is a class D felony if “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 . . . .”
In Armstead, Detective Grace and Officers George and Walker responded to a
radio dispatch. 549 N.E.2d at 400-401. Armstead began yelling obscenities at Detective
George, Detective Grace told Armstead repeatedly that he could be arrested if he did not
calm down, and eventually Detective Grace said Armstead was under arrest and ordered
him to turn around to be searched for weapons. Id. at 401. When Armstead failed to
comply, Detective Grace attempted to turn him around. Id. At that moment, Armstead
hit Officer Walker in the nose, breaking it, and a struggle ensued in which all three
policemen were injured. Id. Armstead was “convicted of Class D felony battery and
Class D felony resisting law enforcement against Officer Walker, and of Class A
misdemeanor resisting law enforcement against Detective Grace and Officer George.”
Id. On appeal, Armstead argued that he could not be held liable for more than one count
of resisting law enforcement when the charges stemmed from a single event. Id. The
court held:
The offenses set forth in [Ind. Code § 35-44-3] do not constitute crimes
against the person. Rather, they are interferences with governmental
operations constituting offenses against public administration. A person
who violates Ind. Code [§] 35-44-3-3 harms the peace and dignity of the
State of Indiana and its law enforcement authority. The harm caused by
one incident is the same regardless of the number of police officers
resisted. It is the act of resisting duly constituted authority which the
statute prohibits, not resisting individual representatives of that authority.
12
*****
[I]n the context of resisting law enforcement, only one entity is harmed as a
result of a single incident, regardless of the number of law enforcement
officers involved. Accordingly, unless more than one incident occurs, there
may be only one charge.
Under Ind. Code [§] 35-44-3-3 any of several acts can constitute a
separate offense of resisting law enforcement. Accordingly, when more
than one incident has occurred, this court and our supreme court have
upheld multiple resisting law enforcement convictions. In Pettit v. State[,
439 N.E.2d 1175 (Ind. Ct. App. 1982)], this court upheld the defendant’s
two resisting law enforcement convictions when the defendant had
threatened one officer with a rifle and later fled by car from several
officers. More recently, our supreme court reached a similar decision. In
Parks v. State[, 513 N.E.2d 170 (Ind. 1987)], the defendant stole a police
car and later attempted to use the car’s shotgun against an officer. The
court upheld his convictions on two counts of resisting law enforcement,
based on the separate and discrete acts of taking the car and using the
shotgun.
Unlike Parks and Pettit, the case before us involves only one act;
none of the discrete incidents characterizing Parks and Pettit are present.
All three of Armstead’s resisting law enforcement convictions stem from
the single affray with the police. Accordingly, two of those convictions
must be reversed.
Armstead urges us to reverse his convictions for resisting Officers
George and Walker, leaving only the conviction for resisting Detective
Grace because he was the officer who actually placed him under arrest.
Armstead’s distinction is erroneous. . . .
When a defendant harms a single entity as a result of a single
incident, we believe he should be answerable for the greatest harm
stemming from that single incident. With respect to resisting law
enforcement, the felony represents the greatest harm Armstead perpetrated.
Accordingly, the felony conviction is affirmed and the misdemeanor
convictions are reversed.
Id. at 401-402 (emphases added and footnote and some citations omitted).
In the present case, in Count III of the charging information, the State alleged:
13
[O]n or about the 14th day of July, 2009, . . . James L. Hebner did
knowingly or intentionally forcibly resist, obstruct, and/or interfere with
Michelle Kircher, a law enforcement officer with the Richmond Police
Department, to wit: fought and/or struggled with Officer Kircher, while
said officer was lawfully engaged in her duties as a law enforcement
officer, to-wit: attempting to restrain and/or arrest . . . Hebner, said acts
resulting in bodily injury to Officer Kircher, to-wit: injured knee and/or
physical pain, contrary to Indiana law.
Appellant’s Appendix at 48 (emphases added). In Count IV, the State alleged:
[O]n or about the 14th day of July, 2009, . . . James L. Hebner did
knowingly or intentionally forcibly resist, obstruct, and/or interfere with a
law enforcement officer, to-wit: Officer Austin Lipps of the Richmond
Police Department, to wit: fought, struggled with, and/or punched at
Officer Lipps, while said officer was lawfully engaged in her duties as a law
enforcement officer, to-wit: attempting to arrest, restrain, and/or transport
. . . Hebner, contrary to Indiana law.
Id. at 49 (emphases added). In Count V, the State alleged:
[O]n or about the 14th day of July, 2009, . . . James L. Hebner did
knowingly or intentionally forcibly flee from law enforcement officers, to-
wit: Officers Michelle Kircher and Austin Lipps of the Richmond Police
Department, after said officers had, by visible or audible means, identified
themselves and ordered . . . Hebner to stop, contrary to Indiana law.
Id. (emphases added).
The evidence reveals that, while standing on one side of the apartment building
after setting up a perimeter around the building, Officer Kircher observed Hebner run or
sprint from an alley next to the building, pursued Hebner on foot, shouted verbal
commands for Hebner to stop, and identified herself as a police officer, and Hebner did
not comply. Later in the morning, after he had been examined at the hospital and as he
was escorted from the hospital by Officers Kircher and Lipps, Hebner slipped his right
hand out of the handcuffs, shoved past Officer Lipps, and ran out the hospital door. The
officers commanded Hebner to stop, but Hebner did not comply and ran down a steep hill
14
and into a wooded area, pursued by Officers Lipps and Kircher. After Officer Lipps was
able to locate Hebner and the two struggled, Officer Lipps was able to knock Hebner off
balance, place him on the ground, and place his hands behind his back. Officer Kircher
arrived and assisted Officer Lipps with handcuffing Hebner. Hebner struck both Officers
Lipps and Kircher, and Officer Kircher suffered an injury.
With respect to Hebner’s convictions under Counts III and IV, we note that the
facts alleged in both of those counts pertain to Hebner’s act of struggling and fighting, i.e.
of forcible resistance, with the officers after running from the hospital into the wooded
area as the officers attempted to contain and apprehend him. Similar to the defendant’s
convictions for resisting law enforcement in Armstead, the facts alleged in Counts III and
IV here pertain to or stem from a “single affray” between Hebner and the police officers
who were attempting to apprehend him and thus involve only one act.5 See Armstead,
549 N.E.2d at 402 (noting that the defendant’s “resisting law enforcement convictions
stem from the single affray with the police”); see also Vest v. State, 930 N.E.2d 1221,
1227 (Ind. Ct. App. 2010) (noting that “the general rule is that in a single, continuous
episode of resisting law enforcement, ‘only one offense is committed regardless of the
number of officers involved’”) (citing Touchstone v. State, 618 N.E.2d 48, 49 (Ind. Ct.
5
This court has noted that there are exceptions to the general rule that only one offense is
committed for a single, continuous episode of resisting law enforcement. Vest v. State, 930 N.E.2d 1221,
1227 (Ind. Ct. App. 2010), trans. denied. For instance “a defendant may be convicted on multiple counts
stemming from a single incident of resisting if he commits more than one of the acts enumerated under
Section 35-44-3-3,” see id. (citing Williams v. State, 755 N.E.2d 1183, 1186 (Ind. Ct. App. 2001) (noting
that the defendant fled from officers and also later forcibly resisted those officers)), and we have “upheld
multiple convictions when a single incident of resisting results in physical injury to more than one
officer,” see id. (citing Whaley, 843 N.E.2d at 14-15). However, these exceptions are not applicable with
respect to Counts III and IV as the State did not allege that Hebner inflicted or otherwise caused bodily
injury to more than one officer and as Hebner’s convictions under Counts III and IV did not relate to
different acts enumerated under Ind. Code § 35-44-3-3 as both related to Hebner’s forcible resistance
under subsection (a)(1) of the statute.
15
App. 1993)), trans. denied. As a result, we must reverse either Hebner’s conviction under
Count III or Count IV.
Although Hebner urges us to reverse his conviction under Count III, we will
follow the court’s holding in Armstead that “[w]hen a defendant harms a single entity as
a result of a single incident, we believe he should be answerable for the greatest harm
stemming from that single incident.” 549 N.E.2d at 402. Accordingly, we reverse
Hebner’s conviction and sentence for resisting law enforcement as a class A
misdemeanor under Count IV and affirm his conviction for resisting law enforcement as
a class D felony under Count III. See Touchstone, 618 N.E.2d at 49 (reversing two of the
defendant’s three convictions for resisting law enforcement where the defendant fought
with three police officers as they tried to arrest him and finding that the defendant’s
struggle with the three officers constituted a single incident of resistance).
With respect to Hebner’s conviction under Count V, we note that the facts alleged
in that count related to Hebner’s act of fleeing the officers, which occurred when Hebner
shoved past Officer Lipps and ran out the hospital door, the officers commanded Hebner
to stop, and Hebner did not comply and ran into the wooded area while being pursued by
the officers. A defendant may be convicted of multiple counts of resisting law
enforcement when he has committed more than one of the acts enumerated under Ind.
Code § 35-44-3-3. Williams, 755 N.E.2d at 1186. While Hebner’s conviction under
Count III related to his act of forcible resistance and inflicting bodily injury under
subsections (a)(1) and (b)(1) of Ind. Code § 35-44-3-3, his conviction under Count V
related to the act of fleeing under subsection (a)(3) of the statute. As a result, the trial
16
court properly entered convictions for both Counts III and V. See id. (holding that the
defendant fled from two law enforcement officers “after being commanded to stop, in
violation of Ind. Code § 35-44-3-3(a)(3),” that he “also forcibly resisted those officers
when they caught up with him, and inflicted bodily injury upon them, in violation of Ind.
Code § 35-44-3-3(a)(1) and (b)(1),” and that “[t]hus, he perpetrated two separate offenses
of resisting law enforcement, and the trial court properly entered convictions for both
counts”); see also Shouse v. State, 849 N.E.2d 650, 658 (Ind. Ct. App. 2006) (holding
that the defendant’s two convictions of resisting law enforcement where one count related
to defendant’s act of fleeing law enforcement and the other count related that he forcibly
resisted or interfered with law enforcement), trans. denied; Arthur v. State, 824 N.E.2d
383, 386 (Ind. Ct. App. 2005) (noting that “resisting law enforcement by fleeing is a
different ‘species’ from resisting law enforcement by force”), trans. denied.
For the foregoing reasons, we reverse Hebner’s conviction for resisting law
enforcement as a class A misdemeanor under Count IV, and we affirm each of Hebner’s
other convictions.6
Reversed in part and affirmed in part.
BAKER, J., and KIRSCH, J., concur.
6
We note that our reversal of Hebner’s conviction under Count IV does not impact Hebner’s
aggregate sentence as the trial court ordered the sentence under Count IV to be served concurrently with
the sentences imposed under the other counts.
17