Yorlin Bunkky Tharbs v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 13 2019, 8:24 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
Amy D. Griner Curtis T. Hill, Jr.
Mishawaka, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Yorlin Bunkky Tharbs, March 13, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1336
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff. Miller, Judge
Trial Court Cause No.
71D01-1508-F3-39
Pyle, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019 Page 1 of 8
Statement of the Case
[1] Yorlin Tharbs (“Tharbs”) appeals his conviction, following a jury trial, for
Level 3 felony resisting law enforcement.1 Tharbs argues that there was
insufficient evidence as to the issue of identity to support his conviction.
Concluding that there was sufficient probative evidence and reasonable
inferences for jurors to find Tharbs guilty beyond a reasonable doubt, we affirm
his conviction.
[2] We affirm.
Issue
Whether there was sufficient evidence to support Tharbs’ resisting
law enforcement conviction.
Facts
[3] Sometime during the night of October 5, 2014, and the early morning of
October 6, 2014, deputies from the Elkhart County Sheriff’s Department were
dispatched to a security alarm at a trailer factory. Deputy Eric Dilley (“Deputy
Dilley”) arrived at the factory and observed a white Monte Carlo vehicle with
four occupants. Deputy Dilley shined his flashlight towards the vehicle and
yelled, “Sheriff’s Department stop!” (Tr. Vol. 2 at 82). The Monte Carlo sped
out of the parking lot and accelerated westbound. Deputy Dilley was unable to
1
IND. CODE § 35-44.1-3-1.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019 Page 2 of 8
pursue the vehicle and used his radio to notify other law enforcement personnel
that the suspect vehicle had fled. The deputy provided a description of the
vehicle and indicated the direction of travel.
[4] Elkhart County Sheriff’s Department’s Bryant Byler (“Deputy Byler”) heard
Deputy Dilley’s report and observed a white Monte Carlo driving at a high rate
of speed. Deputy Byler activated his emergency lights and siren and pursued
the vehicle. The pursuit continued into St. Joseph County, and the vehicle
reached speeds in excess of 110 miles per hour.
[5] At some point during the pursuit, the vehicle veered off of the road and clipped
a pole. It then went into the air, flipped, and continued rotating until it landed
against a tree. The vehicle “was wedged in a tree so . . . the left door of the
car[,] the driver’s side[,] would have been pointing up to the sky. The right side
was pointing to the ground.” (Tr. Vol. 2 at 98-99). It “wasn’t completely on its
side, but it wasn’t on its wheels either.” (Tr. Vol. 3 at 13).
[6] Officers from the St. Joseph County Police Department responded to the
pursuit and joined Deputy Byler at the scene of the crash. They found Tharbs
unconscious and entrapped in the driver’s seat. His upper body was leaning
towards the passenger seat and “[t]he bottom portion of his body was under the
driver’s side . . . pinned.” (Tr. Vol. 2 at 87). One other individual was inside of
the vehicle and two others had been ejected, with one laying in the woods
nearby and the other on the ground “just outside the passenger door by the
front right tire.” (Tr. Vol. 3 at 49).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019 Page 3 of 8
[7] Due to the severity of the crash, various types of emergency personnel
responded to the scene. The Mishawaka Fire Department was tasked with
extricating Tharbs, whose legs were pinned underneath the steering column in
the driver’s seat. All of the occupants were transported to the hospital and
received treatment for their extensive injuries. Mario Beristain (“Beristain”),
the occupant found near the passenger door by the front tire, died as a result of
the severity of his injuries.
[8] Timothy Spencer (“Commander Spencer”), a member of the Mishawaka Police
Department, Commander of the St. Joseph County Fatal Crash Team, and
traffic reconstructionist, also responded to the scene. Upon his arrival, he and
his team engaged in a process called photogrammetry to reconstruct the
accident.2 Commander Spencer later testified that, based on the reconstruction,
his training, and experience, Tharbs was the driver of the vehicle.
[9] On August 5, 2015, the State charged Tharbs with six counts. However, in
January of 2017, the state amended the charging information to three counts,
including one count of resisting law enforcement as a Level 3 felony and two
counts of resisting law enforcement as Level 5 felonies. A four-day trial
commenced on March 12, 2018. Tharbs’ defense was that Beristain was driving
the vehicle. During the trial, five members from the Mishawaka Fire
Department, three officers from the Mishawaka Police Department, three
2
Merriam–Webster’s Online Dictionary defines photogrammetry as “the science of making reliable
measurements by the use of photographs[.]” Merriam–Webster Online Dictionary, available at
http://www.merriam-webster.com/dictionary/photogrammetry (last visited February 28, 2019).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019 Page 4 of 8
officers from the St. Joseph County Police Department, two deputies from the
Elkhart County Sheriff’s Department, and one officer from the South Bend
Police Department all testified to what they observed on the night of the
accident. Apart from one deputy from the Elkhart Sheriff’s Department, all of
the witnesses listed above were at the scene of the crash. Their collective
testimony at trial, based on their various observations, indicated that Tharbs
was in the driver’s seat of the vehicle prior to the crash. The jury found Tharbs
guilty of all charges.
[10] At Tharbs’ sentencing hearing, the trial court entered a judgment of conviction
as to the Level 3 felony resisting law enforcement, withholding judgment on the
other two counts. Tharbs was sentenced to nine (9) years, with six (6) years
executed on St. Joseph County Community Corrections and three (3) years
suspended to probation. Tharbs now appeals. Additional facts will be provided
as necessary.
Decision
[11] On appeal, Tharbs challenges the sufficiency of the evidence for his Level 3
felony resisting law enforcement conviction. Our standard of review for
sufficiency of evidence claims is well-settled. We do not assess the credibility of
the witnesses or reweigh the evidence in determining whether the evidence is
sufficient. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only
the probative evidence and reasonable inferences supporting the verdict. Id.Thus, the evidence is not required to overcome every reasonable hypothesis of
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019 Page 5 of 8
innocence and is sufficient if an inference may reasonably be drawn from it to
support the verdict. Id. at 147.
[12] A person commits resisting law enforcement as a Class A misdemeanor if he
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[.]” I.C. § 35-44.1-3-1(a)(3). The offense is elevated
to a Level 3 felony if, while committing the offense, “the person operates a
vehicle in a manner that causes the death of another person[.]” I.C. § 35-44.1-3-
1(b)(3).
[13] Tharbs claims that the evidence was insufficient to prove that he was driving
the vehicle at the time of the accident and therefore fleeing from law
enforcement officers. In addressing Tharbs’ claim, we note that identification
testimony need not necessarily be unequivocal to sustain a conviction.
Holloway v. State, 983 N.E.2d 1175, 1178 (Ind. Ct. App. 2013). In addition, the
elements of an offense and the identity of the accused may be established
entirely by circumstantial evidence and the logical inferences drawn therefrom.
Id. As with other sufficiency matters, we will not weigh the evidence or resolve
questions of credibility when determining whether the identification evidence is
sufficient to sustain a conviction. Id. Rather, we examine the evidence and the
reasonable inferences therefrom that support the conviction. Id.Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019 Page 6 of 8
[14] Our review of the record reveals that testimony of multiple officers established
that Tharbs was in the driver’s seat of the crashed Monte Carlo. As detailed
above, several law enforcement and emergency personnel responded to the
scene of the accident. The witnesses recounted their various observations at
trial and all came to the same conclusion – that Tharbs’ “legs were pinned
underneath . . . the dash and the steering wheel. And then his body was lying
kind of across the [front passenger] seat because of the car being titled.” (Tr.
Vol. 2 at 99).
[15] Further, Tharbs’ entrapped position in the vehicle also indicated that he was the
driver. Commander Spencer, an accredited traffic reconstructionist, testified as
follows:
The damage to the car was very telling, . . . but what was unique
about this case and the best evidence as far as who was driving or
who was where in the car, the best piece of information that we
could ever hope for is entrapment. Well, it’s obviously very
unfortunate for those who are entrapped. It’s a huge piece of
evidence and the majority of my opinion in this case was based
on the entrapment.
***
If, if there’s entrapment, that is the strongest piece of evidence, I
feel, that can exist of to where somebody was sitting when the
damage occurred.
***
But, like, I said, the majority of, of my opinion here was based on
what I’ve always found, and, I believe, is industry wide and the
biggest and best possible piece of evidence you can ever have
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019 Page 7 of 8
when it comes to determining where people [are] sitting is
entrapment.
(Tr. Vol. 3 at 17, 30, 37). Commander Spencer concluded that based on his
investigation, training, and experience, Tharbs was the driver of the vehicle.
[16] Viewing the probative evidence presented and the reasonable inferences drawn
therefrom, we conclude that the State presented sufficient evidence to support
Tharbs’ resisting law enforcement conviction. Tharbs’ arguments otherwise
amount to a request for this Court to reweigh the evidence, which we cannot
do. See Drane, 867 N.E.2d at 146. Accordingly, we affirm Tharbs’ Level 3
felony resisting law enforcement conviction.
[17] Affirmed.
Najam, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1336 | March 13, 2019 Page 8 of 8