Larry Craig v. State of Indiana (mem. dec.) ( 2017 )


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  • MEMORANDUM DECISION
    FILED
    Pursuant to Ind. Appellate Rule 65(D),                                  Apr 10 2017, 9:13 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
    David Becsey                                             Curtis T. Hill, Jr.
    Zeigler Cohen & Koch                                     Attorney General of Indiana
    Indianapolis, Indiana
    Ellen H. Meilaender
    Supervising Deputy Attorney
    General
    Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    Larry Craig,                                             April 10, 2017
    Appellant-Defendant,                                     Court of Appeals Case No.
    49A02-1606-CR-1232
    v.                                               Appeal from the Marion Superior
    Court
    State of Indiana,                                        The Honorable Ronnie Huerta,
    Commissioner
    Appellee-Plaintiff.                                      Trial Court Cause No.
    49G24-1510-F6-36339
    Brown, Judge.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017            Page 1 of 16
    [1]   Larry Craig appeals his convictions for resisting law enforcement as a level 6
    felony, resisting law enforcement by fleeing as a class A misdemeanor, reckless
    driving as a class C misdemeanor, and leaving the scene of an accident as a
    class B misdemeanor. Craig raises four issues which we consolidate and restate
    as:
    I.     Whether the trial court abused its discretion in excluding
    certain evidence;
    II.    Whether the evidence is sufficient to sustain his convictions for
    resisting law enforcement and leaving the scene of an accident;
    and
    III.   Whether his convictions for resisting law enforcement violate
    double jeopardy.
    We affirm in part, reverse in part, and remand.
    Facts and Procedural History
    [2]   On October 9, 2015, Indianapolis Metropolitan Police Sergeant Scott Wildauer,
    who was driving his fully marked police car and wearing his police uniform,
    observed a vehicle going southbound and following a vehicle too closely.
    Sergeant Wildauer pulled behind the vehicle, and it immediately moved into
    the left turn lane of 16th Street, and “approximately 30 feet before it turned it put
    on its turn signal and turned left to pull into the gas station.” Transcript at 51.
    After seeing the two violations for failing to signal 200 feet before a turn and
    following too closely, Sergeant Wildauer activated his lights and siren to
    conduct a traffic stop and followed the vehicle into the gas station.
    [3]   Sergeant Wildauer observed that the windows were tinted dark and he could
    not see anything in the vehicle. Sergeant Wildauer exited his vehicle and gave
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 2 of 16
    several loud commands stating: “Please roll down the windows.” Id. at 54.
    Sergeant Wildauer knocked on the back side of the window, continued his loud
    commands, and still could not see in the car, and the vehicle “sped off.” Id.
    Sergeant Wildauer ran back to his vehicle, activated its lights and siren, and
    pursued the vehicle. The vehicle did not stop at more than three stop signs and
    sped over fifty miles per hour in a residential area which had a thirty-mile-per-
    hour speed limit. Sergeant Wildauer gave the license plate of the vehicle to
    dispatch. The vehicle turned left to pull into an alley, hit a guide wire with the
    front passenger side fender, and sideswiped an IPL pole. The driver
    overcorrected and headed towards a neighbor’s fence and the vehicle stopped
    “as it just touched the --- the privacy fence, just came to rest there.” Id. at 58.
    [4]   Sergeant Wildauer then observed the vehicle’s driver side window was down
    and Craig in the vehicle. Craig exited the driver’s side window and looked
    directly at Sergeant Wildauer. Sergeant Wildauer yelled “Stop, police” a
    couple of times, and Craig ran. Id. at 136. Sergeant Wildauer approached the
    vehicle with his gun drawn, opened the doors, and verified that no one else was
    in the vehicle.
    [5]   A few minutes later, Indianapolis Metropolitan Police Officer Christopher
    Winter apprehended Craig. Sergeant Wildauer went to the scene where Craig
    was apprehended, gave Craig a Miranda warning, and asked him why he ran.
    Craig said that he was afraid and that he “was trying to get home . . . .” Id. at
    64.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 3 of 16
    [6]   On October 15, 2015, the State charged Craig with Count I, resisting law
    enforcement as a level 6 felony; Count II, resisting law enforcement as a class A
    misdemeanor; Count III, reckless driving as a class C misdemeanor; and Count
    IV, leaving the scene of an accident as a class B misdemeanor. 1
    [7]   On February 17, 2016, Craig filed a Motion to Dismiss or in the Alternative for
    a Directed Verdict at the Conclusion of the State’s Evidence. Craig argued that
    his right to be free from illegal seizures as protected by the Fourth Amendment
    was violated by the pre-textual traffic stop that led to his arrest. 2
    [8]   On April 12, 2016, Craig filed a motion to exclude the State’s witness Sergeant
    Wildauer. He argued that Sergeant Wildauer admitted in a deposition to
    having been prescribed the narcotic pain killer Norco since January 2016 and
    he exhibited confusion and memory loss when describing the events of October
    9, 2015. He also argued that if Sergeant Wildauer was allowed to testify, he
    should be permitted to inquire into the use of narcotics by Sergeant Wildauer
    and the effect on his ability to remember and testify.
    [9]   That same day, the court held a hearing wherein Craig’s counsel pointed out
    that Sergeant Wildauer indicated in a deposition that he began taking a narcotic
    in January 2016. After some discussion, Sergeant Wildauer testified on direct
    examination at the hearing and prior to voir dire that he sustained an injury on
    1
    Both counts for resisting law enforcement reference Sergeant Wildauer.
    2
    The State asserts that the trial court never ruled on Craig’s motion.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 4 of 16
    January 18, 2016, that he had been in treatment for the injury since it occurred,
    that he was prescribed Norco, and that it relieves some of the pain. When
    asked if it had any effect on him mentally, Sergeant Wildauer answered:
    You know I feel --- when I take it --- when I’m on it I feel a little
    loopy a little bit. I don’t feel --- I’m careful not to drive when I’m
    on it and my first doctor that I had when I was injured --- I’ve
    been on same medicine since the day of the injury, he actually
    instructed me not to drive while I was on it[.]
    Id. at 19. When asked how often he was supposed to take Norco, he stated:
    “I’m supposed to take---at first it was a tablet every six hours as needed for pain
    and then now it’s a half tablet at a time as needed for pain up to one tablet every
    twelve hours . . . .” Id. at 20. He stated that he had not taken Norco the day of
    the hearing and the last time he took it was the previous day at 2:00 p.m. He
    stated that the pain relief from Norco was several hours but “definitely not
    twelve,” and that he was on no other medications that may affect his mental
    status. Id. He also testified that he had not taken Norco or any other
    medication that could have affected his mental status on October 15, 2015.
    [10]   On cross-examination, he testified that he was on a generic form of Norco or
    some type of hydrocodone with acetaminophen and that he did not experience
    any withdrawal symptoms. On redirect examination, the prosecutor asked
    whether the pain he was in was having an effect on his ability to recall events or
    to give testimony, and Sergeant Wildauer answered: “Absolutely not.” Id. at
    32. The court denied Craig’s motion.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 5 of 16
    [11]   The court then conducted a jury trial at which Sergeant Wildauer testified that
    he had seen the vehicle he stopped over a dozen times and that he had
    previously been approached by another detective who advised that “they saw
    some suspicious activity pertaining to the car, no individual, only that car and it
    might be involved in some criminal behavior.” Id. at 51. On cross-
    examination, Craig’s counsel questioned Sergeant Wildauer about an ongoing
    investigation into the vehicle and asked him if he initiated the traffic stop
    because he wanted to find out who was driving the vehicle. Sergeant Wildauer
    answered: “No, I did the traffic stop after seeing violations. As I think I
    testified before if I don’t see violations I don’t make a traffic stop.” Id. at 91.
    Sergeant Wildauer stated that he did not issue a citation or ticket to Craig for
    failing to signal, speeding, or tinted windows.
    [12]   After the State rested, Craig asked for a directed verdict on all counts and the
    court denied the motion. With respect to Count IV, leaving the scene of an
    accident as a class B misdemeanor, the court stated:
    Number 4 is kind of questionable as charged it’s damaging a light
    pole. Indianapolis Power and Light ran the utility pole. There’s
    no evidence that there’s any damage to the pole. The question is
    is the guide wire part of the pole ‘cause that’s the actual item that
    was damaged. Officer Wildauer testified without a doubt that it
    was a steel wire that was coming down and it was snapped. I
    don’t recall him indicating that there was any damage to the pole
    itself. So I don’t know if the guide wire, you know, is part of the
    pole or not. I guess there’s still enough evidence to let the jurors
    decide and you guys can make your arguments and characterize
    that evidence how you’d like to and make that to them. The
    standard is there has to be enough evidence there and the bench
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 6 of 16
    is not to invade the jury’s ability to make these calls if there is
    evidence enough to go forward and I find that there is enough
    evidence. It’s close on the Number 4 but that---that’s still enough
    for them to decide if you make that argument ‘cause I agree
    there’s no evidence that the pole was damaged it’s the guide wire
    and I don’t know if it’s one in the same, you know, so. That’s
    the way it is I’ll let it go forward. So your motion, Defense, is
    denied.
    Id. at 142.
    [13]   Craig testified that he had previous encounters with Sergeant Wildauer and that
    Sergeant Wildauer told him: “The next time I stop you make sure you have
    something for me about what’s going on over there, who’s doing what.” Id. at
    154. He testified that, on October 9th, he pulled into the gas station, Sergeant
    Wildauer knocked on his window, he drove away, and he did not hear any
    sirens or Sergeant Wildauer tell him to stop. He testified that Sergeant
    Wildauer followed him and he stated: “I’m like this dude is really following me
    so as I make a wide turn left I hit the telephone pole. I like nipped it and
    stopped up on the fence that was it and then I get out my car and I look to see if
    I messed up the front fender so it wasn’t messed up, I’m like okay I’m gonna get
    back in and go home.” Id. at 162. When asked why he was running, Craig
    answered: “I’m trying to get away from Officer Wildauer because of what he
    said about if I didn’t have no information and be his snitch and tell him about
    what’s going on and give him an arrest; I’m not gonna do that.” Id. He
    testified that he “nipped” the pole but did not “even think [he] dented it.” Id. at
    164. On cross-examination, Craig answered affirmatively when asked if he
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 7 of 16
    testified that there was in fact an accident with a pole. The following exchange
    occurred between the prosecutor and Craig:
    Q. You hit the pole?
    A. I nipped the pole.
    Q. Is a nip a hit?
    A. I didn’t leave a dent in the pole.
    Q. Please describe for me in your own words what the difference
    between nipping a pole with a car and hitting a pole with a car
    are?
    A. With a car I can use an example as a pencil. You know how
    to play----you play pencil break in school. When you hit it it’s a
    dent but if you hit it hard enough it breaks. It was a dent.
    Q. Was it as a result of you driving into it?
    A. Yeah, because of the wide turn I was trying to make, yes,
    because of Officer Wildauer---trying to get away from him
    because of our last conversation before this day.
    Q. Did I hear a yes?
    A. Yes.
    Id. at 167-168. Craig also testified that Sergeant Wildauer attempted to hit him
    with his car.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 8 of 16
    [14]   The jury found Craig guilty as charged. The court sentenced him to concurrent
    sentences of 545 days for Count I, 365 days for Count II, sixty days for Count
    III, and 180 days for Count IV.
    Discussion
    I.
    [15]   The first issue is whether the trial court abused its discretion in excluding
    evidence that Sergeant Wildauer had been prescribed hydrocodone with
    acetaminophen. The admission and exclusion of evidence falls within the
    sound discretion of the trial court, and we review the admission of evidence
    only for an abuse of discretion. Wilson v. State, 
    765 N.E.2d 1265
    , 1272 (Ind.
    2002). An abuse of discretion occurs “where the decision is clearly against the
    logic and effect of the facts and circumstances.” Smith v. State, 
    754 N.E.2d 502
    ,
    504 (Ind. 2001). Even when a trial court errs in excluding evidence, we will not
    find reversible error where that error is harmless; that is, where the error did not
    affect the substantial rights of a party. See Ind. Trial Rule 61.
    [16]   Craig argues that the court committed reversible error by precluding the defense
    from asking Sergeant Wildauer about his long-term and contemporaneous use
    of narcotic pain medication. He asserts that the defense’s position was that he
    should have been allowed to ask about his narcotic use because it was relevant
    to Sergeant Wildauer’s ability to testify accurately and truthfully as to his
    memory of the events and whether his recollections had been impacted by the
    several month continuous narcotic use. The State argues that Craig waived this
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 9 of 16
    issue because he did not seek to admit this evidence at trial. It also argues that
    the court properly excluded this evidence because the evidence was irrelevant
    and inadmissible.
    [17]   Even assuming that Craig had not waived this issue, we cannot say that the
    court abused its discretion. Craig cites McKim v. State, 
    476 N.E.2d 503
    , 506
    (Ind. 1985), in which the Indiana Supreme Court held that the extent of a
    victim’s use of drugs and alcohol “would be pertinent only to her ability to
    recall the events on the dates in question had she been using drugs or alcohol at
    that time, or if she were on drugs at trial or if her drug and alcohol abuse was so
    extensive that her mind was impaired.” We cannot say that any of these
    circumstances apply here. The record reveals that Sergeant Wildauer sustained
    an injury on January 18, 2016, and was prescribed hydrocodone and
    acetaminophen, and that he began taking the prescription only after the date of
    Craig’s offenses in October 2015. Sergeant Wildauer testified at the hearing
    that he had not taken the medication since the previous day at 2:00 p.m., that
    the pain relief lasted several hours but definitely not twelve hours, that he did
    not experience any withdrawal symptoms, and that his pain had no effect on his
    ability to recall events or give testimony. Transcript at 19. Under the
    circumstances, we cannot say that the trial court abused its discretion in
    denying Craig’s motion.
    II.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 10 of 16
    [18]   The next issue is whether the evidence is sufficient to sustain Craig’s
    convictions for resisting law enforcement and leaving the scene of an accident.
    When reviewing claims of insufficiency of the evidence, we do not reweigh the
    evidence or judge the credibility of witnesses. Jordan v. State, 
    656 N.E.2d 816
    ,
    817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the
    reasonable inferences therefrom that support the verdict. 
    Id.
     We will affirm the
    conviction if there exists evidence of probative value from which a reasonable
    trier of fact could find the defendant guilty beyond a reasonable doubt. 
    Id.
    A. Resisting
    [19]   Craig argues that there was no serious danger specific to the vehicular operation
    that was being addressed. He asserts that Sergeant Wildauer issued no traffic
    tickets to him for following too closely, failing to signal, tinted windows, or
    speeding. He contends that the pretextual stop facilitated by a traffic violation
    of questionable validity was not reasonable in light of the circumstances and
    violated his rights under Article 1, § 11 of the Indiana Constitution. He asserts
    that the evidence is insufficient to establish that he was guilty of the offense of
    resisting by fleeing because Sergeant Wildauer’s order to stop did not rest on
    probable cause or reasonable suspicion.
    [20]   The State argues that Craig did not raise any Fourth Amendment or Article 1, §
    11 objection to the validity of the stop at any point during the trial. It argues
    that the order to stop in this case was valid as it was supported by probable
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 11 of 16
    cause of traffic infractions and Craig was not free to disregard that order, and
    that Craig’s argument that the stop was pretextual is irrelevant.
    [21]   Even assuming that Craig had not waived this issue, we cannot say that reversal
    is warranted. The offense of resisting law enforcement as a level 6 felony is
    governed by 
    Ind. Code § 35-44.1-3
    -1, which at the time of the offense provided
    that “[a] person who 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 . . . commits resisting law
    enforcement, a Class A misdemeanor,” and that the offense is a level 6 felony if
    “the person uses a vehicle to commit the offense . . . .” 3 Count I alleged that
    Craig “did knowingly flee from [Sergeant Wildauer], a law enforcement officer
    with the Indianapolis Metro Police Dept[.], after said officer identified himself
    by visible or audible means and visibly or audibly ordered said defendant to
    stop and in committing said act the defendant used a vehicle.” Appellant’s
    Appendix II at 22.
    [22]   In Gaddie v. State, 
    10 N.E.3d 1249
     (Ind. 2014), which is cited by Craig, the
    Indiana Supreme Court addressed a person’s choice of whether to comply with
    an officer’s request to stop. In that case, defendant Gaddie walked away from
    an officer through the curtilage of a residence, which turned out to be his own
    3
    Subsequently amended by Pub. L. No. 198-2016, § 673 (eff. July 1, 2016).
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 12 of 16
    residence, while the officer was ordering him to stop following a disturbance at
    the residence. 10 N.E.3d at 1252. Gaddie did not stop or change his behavior,
    and he was charged with resisting law enforcement by fleeing after being
    ordered to stop. Id. On transfer, the Court observed:
    To hold that a citizen may be criminally prosecuted for fleeing
    after being ordered to stop by a law enforcement officer lacking
    reasonable suspicion or probable cause to command such an
    involuntary detention would undermine longstanding search and
    seizure precedent that establishes the principle that an individual
    has a right to ignore police and go about his business.
    Id. at 1254. It held:
    [T]he statutory element “after the officer has . . . ordered the
    person to stop” 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.
    [23]   Sergeant Wildauer testified that he was driving his fully marked police car,
    observed Craig’s vehicle following another vehicle too closely and failed to
    signal 200 feet before a turn, activated his lights and siren, gave several loud
    commands to roll down the windows, Craig “sped off,” he pursued Craig with
    his lights and siren activated, and Craig did not stop at more than three stop
    signs and did not stop until he overcorrected and sideswiped an IPL pole.
    Transcript at 54. We conclude that the State presented evidence of a probative
    nature from which a reasonable trier of fact could have determined beyond a
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 13 of 16
    reasonable doubt that Sergeant Wildauer had reasonable suspicion or probable
    cause to order Craig to stop and that Craig committed resisting law
    enforcement as a level 6 felony.
    B. Leaving the Scene of an Accident
    [24]   Craig argues that the evidence was insufficient to sustain his conviction for
    leaving the scene of an accident only because there was no damage to the utility
    pole and he was not charged with damaging a guide wire. The State argues that
    it was not required to prove that the utility pole was damaged in order to
    sustain the charge and that, even if it were required to prove damage, the
    evidence would still be sufficient.
    [25]   The offense of leaving the scene of an accident as a class B misdemeanor is
    governed by 
    Ind. Code § 9-26-1-1
    .1 which at the time of the offense provided:
    (a) The operator of a motor vehicle involved in an accident shall
    do the following:
    (1) Immediately stop the operator’s motor vehicle:
    (A) at the scene of the accident; or
    (B) as close to the accident as possible in a manner
    that does not obstruct traffic more than is necessary.
    *****
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 14 of 16
    (b) An operator of a motor vehicle who knowingly or
    intentionally fails to comply with subsection (a) commits leaving
    the scene of an accident, a Class B misdemeanor.
    (Subsequently amended by Pub. L. No. 63-2016, § 1 (eff. July 1, 2016)).
    [26]   The charging information alleged that Craig, “being a driver of a vehicle that
    was involved in an accident, involving a collision with a utility pole being the
    property of Indianapolis Power and Light, did knowingly or intentionally fail to
    stop the vehicle at the scene of said accident, or as close as possible thereto . . .
    .” Appellant’s Appendix at 23.
    [27]   Sergeant Wildauer testified that Craig “sideswiped the pole . . . .” Transcript at
    58. He also testified that the guide wire that anchors the pole to keep it steady
    was hit and broken. Craig testified he did not “even think [he] dented it,” but
    also testified that he “nipped” the pole and later answered affirmatively when
    asked if he testified that there was in fact an accident with a pole. Id. at 164.
    On cross-examination, he testified “I didn’t leave a dent in the pole,” but later
    testified: “It was a dent.” Id. at 167-168. We conclude that the State presented
    evidence of a probative nature from which a reasonable trier of fact could have
    determined beyond a reasonable doubt that Craig committed leaving the scene
    of an accident as a class B misdemeanor.
    III.
    [28]   The next issue is whether Craig’s convictions for resisting law enforcement
    violate double jeopardy. Craig argues that his fleeing was one single act of
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 15 of 16
    fleeing and that remand to the trial court to vacate the misdemeanor conviction
    is in order. The State agrees that Craig’s convictions violate the prohibition
    against double jeopardy and that the misdemeanor resisting conviction should
    be vacated. Based upon the State’s concession and our review of the record, we
    conclude that Craig’s convictions violate double jeopardy principles. A
    violation of double jeopardy principles requires that we vacate the conviction
    with the less severe penal consequences. Moala v. State, 
    969 N.E.2d 1061
    , 1065
    (Ind. Ct. App. 2012). We vacate Craig’s conviction and sentence for resisting
    law enforcement as a class A misdemeanor. See Lewis v. State, 
    43 N.E.3d 689
    ,
    691 (Ind. Ct. App. 2015) (observing that the defendant’s actions of fleeing by
    vehicle and then on foot constitute one continuous act of resisting law
    enforcement, holding that convictions on both resisting counts could not stand,
    and remanding the case to the trial court to vacate the defendant’s conviction
    for resisting law enforcement as a class A misdemeanor).
    Conclusion
    [29]   For the foregoing reasons, we affirm Craig’s convictions for resisting law
    enforcement as a level 6 felony, reckless driving as a class C misdemeanor, and
    leaving the scene of an accident as a class B misdemeanor, vacate his conviction
    for resisting law enforcement as a class A misdemeanor, and remand to the trial
    court to amend its sentencing order.
    [30]   Affirmed in part, reversed in part, and remanded.
    Vaidik, C.J., and Bradford, J., concur.
    Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1232 | April 10, 2017   Page 16 of 16
    

Document Info

Docket Number: 49A02-1606-CR-1232

Filed Date: 4/10/2017

Precedential Status: Precedential

Modified Date: 4/10/2017