FILED
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any Mar 07 2012, 8:52 am
court except for the purpose of establishing
the defense of res judicata, collateral
CLERK
estoppel, or the law of the case. of the supreme court,
court of appeals and
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
STANLEY L. CAMPBELL GREGORY F. ZOELLER
Fort Wayne, Indiana Attorney General of Indiana
AARON J. SPOLARICH
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
MARQUIS T. HAWKINS, )
)
Appellant-Defendant, )
)
vs. ) No. 02A03-1108-CR-441
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ALLEN SUPERIOR COURT
The Honorable John F. Surbeck, Jr., Judge
Cause No. 02D04-1007-FC-166
March 7, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
Appellant-Defendant Marquis Hawkins challenges his conviction for Class A
misdemeanor Resisting Law Enforcement1 by claiming there was insufficient evidence to
demonstrate that he knowingly fled from authorities. We affirm.
FACTS AND PROCEDURAL HISTORY
During the early morning hours of May 27, 2010, Fort Wayne Police Officer Juan
Carlos Gutierrez observed a vehicle fail to signal upon making a turn in Fort Wayne.
Hawkins, who had two passengers, was driving the vehicle. Officer Gutierrez observed
the vehicle make another turn, hitting the curb as it did. Officer Gutierrez, who was in
full police uniform, activated the red and blue lights on his fully marked squad car.
Hawkins accelerated his vehicle in response and drove through a stop sign without
stopping. Officer Gutierrez then activated his siren and called for backup. Hawkins
increased his speed dramatically. Officer Gutierrez pursued Hawkins at speeds of up to
fifty to sixty miles per hour and estimated that Hawkins was driving eighty to ninety
miles per hour in a residential neighborhood. Hawkins continued to accelerate, so, due to
safety concerns, Officer Gutierrez discontinued his pursuit.
Officer Gutierrez de-activated his lights and siren but continued in the direction of
Hawkins’s vehicle. Officer Gutierrez heard the sound of a crash, and upon arriving at the
scene, saw Hawkins’s vehicle had crashed into a house. Hawkins stepped out of the
vehicle and ran away from the scene. Officer Gutierrez yelled “Stop!” and chased
Hawkins between houses and through an alleyway. Officer Gutierrez ultimately found
Hawkins hiding in some nearby bushes. Officer Gutierrez sought to apprehend Hawkins,
1
Ind. Code § 35-44-3-3 (2009).
2
but Hawkins assumed a fighting stance. At that point Officer Gutierrez removed his taser
and warned Hawkins to lie down and comply with his orders. Hawkins did not do so, so
Officer Gutierrez deployed his taser. Officer Gutierrez used his taser for approximately
five seconds, after which Hawkins stood back up and removed one of the taser probes.
Officer Gutierrez struck Hawkins in the solar plexus, sprayed him with chemical spray,
and continued to struggle to subdue him until backup arrived. At that point authorities
were able to handcuff Hawkins.
On July 27, 2010, the State charged Hawkins with fourteen separate counts,2
including Count VIII, Class A misdemeanor resisting law enforcement, based upon his
fleeing from Officer Gutierrez; Count IX, Class A misdemeanor resisting law
enforcement, based upon his resisting/obstructing/interfering with Officer Gutierrez’s
execution of his law enforcement duties; and Counts XII-XIV, Class B misdemeanor
failure to stop after damage to property other than vehicle. The matter was tried to a jury,
which found Hawkins guilty of Counts VIII, IX, and XII-XIV. The jury deadlocked on
Counts I-VII, X, and XI. The trial court entered judgment of conviction on Counts VIII,
IX, and XII-XIV and declared a mistrial on the remaining counts. Prior to retrial on these
counts, the State filed additional charges, including Count XV, which alleged Class D
2
Counts I and II alleged Class C felony criminal recklessness; Count III and IV, Class D felony
operating a vehicle while intoxicated causing serious bodily injury; Counts V and VI, Class D felony
operating a vehicle with a BAC of .08 or higher causing serious bodily injury; Counts VII, Class C felony
resisting law enforcement causing bodily injury to another person; Counts VIII and IX, Class A
misdemeanor resisting law enforcement; Counts X and XI, Class D felony failure to stop after an accident
resulting in injury or death; Counts XII-XIV, Class B misdemeanor failure to stop after damage to
property other than vehicle.
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felony resisting law enforcement by fleeing through the use of a vehicle.3 On August 2,
2011, Hawkins pled guilty to several of these additional counts, specifically Counts XV,
XVI, and XVIII, and the trial court entered judgment dismissing Counts I-VII, X, and XI,
and later, Count XVII.
The trial court sentenced Hawkins to an aggregate four-year sentence.
Specifically Hawkins received terms of one year for each of Counts VIII and IX; sixty
days for each of Counts XII-XIV; three years for Count XV; and one year each for
Counts XVI and XVIII. The court ordered that the sentences for Counts VIII, IX, XII,
XIII, and XIV run concurrently with one another and that the sentence for Count XV run
consecutive to the sentences for the other counts.4 This appeal follows.
DISCUSSION AND DECISION
Upon appeal, Hawkins challenges the sufficiency of the evidence to support his
resisting law enforcement conviction in Count VIII. Hawkins claims that the State failed
to show that he knew he was fleeing from police officers when he stepped outside of his
crashed vehicle and left the scene.
When evaluating the sufficiency of the evidence to support Hawkins’s conviction,
we do not reweigh the evidence or judge the credibility of the witnesses. Kien v. State,
3
The additional charges were Count XVI, Class A misdemeanor criminal recklessness; Count
XVII, Class A misdemeanor operating a vehicle while intoxicated; and Count XVIII, Class A
misdemeanor failure to stop after an accident resulting in injury or death.
4
Although the trial court indicates in its order that the sentence for Count XV is to run
concurrently with the sentences for Counts VIII, IX, XII, XIII, and XIV, XVI, and XVIII, it also says that
the sentence for Count XV is to run consecutive to the sentences for Counts XVI and XVIII and that the
aggregate sentence is four years. We assume that the sentence for Count XV, therefore, is to run
consecutive to the sentences for Counts VIII, IX, XII, XIII, and XIV, XVI, and XVIII.
4
782 N.E.2d 398, 407 (Ind. Ct. App. 2003), trans. denied. We consider only the evidence
which supports the conviction and any reasonable inferences which the trier of fact may
have drawn from the evidence. Id. We will affirm the conviction if there is substantial
evidence of probative value from which a reasonable trier of fact could have drawn the
conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt.
Id. It is the function of the trier of fact to resolve conflicts of testimony and to determine
the weight of the evidence and the credibility of the witnesses. Jones v. State, 701
N.E.2d 863, 867 (Ind. Ct. App. 1998).
Indiana Code section 35-44-3-3(a)(3) provides 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 and ordered the person to stop, commits Class A misdemeanor
resisting law enforcement.
Hawkins claims that Officer Gutierrez failed to identify himself as a police officer
when pursuing him on foot. According to Hawkins, he therefore could have had no way
of knowing that his flight was from police officers rather than, for example, some other
bystander on the scene. We cannot accept this argument under the circumstances of this
case. In the moments before Hawkins fled on foot, he was fleeing a fully marked police
car—with its lights flashing and sirens wailing—at high speeds. There cannot have been
a significant lapse in time between Hawkins’s efforts to escape by car and on foot
because Officer Gutierrez was close enough to the crash to hear it occur. The mere fact
of Officer Gutierrez’s hot pursuit and the lawless nature of Hawkins’s getaway attempts
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supports the reasonable inference that Hawkins knew the police would still be—and
were—pursuing him after he crashed his car and ran away on foot a short time later. It
would be a strange supposition indeed for a defendant to think that the moment he
escapes the view of law enforcement authorities is the moment that they stop pursuing
him. Further, the fact that Officer Gutierrez found Hawkins hiding beneath a bush also
supports the fact that he knew authorities were still pursuing him. Based upon these facts
and all reasonable inferences therefrom, we must conclude that Hawkins would have
been fully aware that the persons chasing him after the accident were the very same
persons—namely law enforcement authorities—chasing him before the accident.
The judgment of the trial court is affirmed.
KIRSCH, J., and BARNES, J., concur.
.
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