FILED
Sep 08 2016, 8:40 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jeffrey E. Kimmell Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Richard C. Webster
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Royce Love, September 8, 2016
Appellant-Defendant, Court of Appeals Case No.
71A03-1511-CR-2009
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable J. Jerome Frese,
Appellee-Plaintiff. Judge
Trial Court Cause No.
71D03-1308-FD-653
Brown, Judge.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 1 of 22
[1] Royce Love appeals his convictions for mistreatment of a law enforcement
animal and resisting law enforcement as class A misdemeanors. Love raises
two issues, which we revise and restate as whether the evidence is sufficient to
sustain his convictions.1 We reverse.
Facts and Procedural History
[2] At around 4:00 a.m. on August 4, 2013, South Bend Police Officers Paul Daley
and Christopher Deak were on patrol when they observed a white van, which
was later determined to be driven by Love, drive through a red traffic light. The
officers began following Love’s van, saw him disregard a stop sign, and turned
on the police car’s emergency lights to initiate a traffic stop. Love continued to
drive, and the officers then activated their siren. Love noticed the lights and
siren but did not stop. His failure to stop required the presence of additional
officers, who activated their lights and sirens, to join in the pursuit. These
officers included, among others, Officer Greg Howard, Officer Erik
Schlegelmilch, Officer Jonathan Gray, and Office Larry Sanchez. Some of the
officers attempted a “rolling roadblock” by blocking Love’s van with their
police cars, but Love struck the vehicles and proceeded to lead officers on an
approximate five minute chase. Transcript at 77. Eventually, the police were
able to stop Love’s van with Stop Sticks® in an alley near the city’s downtown.2
1
Love was also convicted of an additional count of resisting law enforcement (based on fleeing in a vehicle),
for which judgment was entered as a class A misdemeanor, but Love does not challenge the conviction.
2
Stop sticks are a tool used by police to “pop tires of [] suspect vehicles that aren’t stopping for the police.”
Transcript at 105.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 2 of 22
The officers’ vehicles were equipped with cameras which recorded the pursuit
and stop.
[3] A portion of the events that occurred once Love was stopped in the parking
area near his “mother’s child’s house” was captured on the in-car video
recorder of Officer Kyle Bilinski. Id. at 233. The video shows that when Love’s
vehicle was stopped, the officers ordered him to exit the van and he exited the
vehicle, raised his hands in the air, proceeded to place himself on all fours about
five seconds after he exited the vehicle, and, after approximately ten additional
seconds lay face down on the ground. The officers used tasers and deployed a
police dog to effect his arrest.
[4] On August 5, 2013, the State charged Love with Count I, resisting law
enforcement (based on fleeing in a vehicle) as a class D felony; Count II,
mistreatment of a law enforcement animal as a class A misdemeanor; and
Count III, resisting law enforcement (based on forcibly resisting) as a class A
misdemeanor.3
[5] On August 10, 2015, the court held a jury trial at which Love represented
himself pro se. The court heard testimony from South Bend Police Officers
Daley, Howard, Schlegelmilch, Gray, and Sanchez. Each officer, with the
exception of Officer Howard who was not present at the scene of Love’s arrest,
3
The State also charged Love with Count IV, operating a vehicle while intoxicated as a class A
misdemeanor, but the charge was dismissed prior to trial.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 3 of 22
testified that Love did not comply with the officers’ commands after he exited
the van.
[6] During the direct testimony of Officer Daley, the State introduced State’s
Exhibit 4A, a DVD recording of the vehicular police pursuit that was recorded
from Officer Daley’s police car. The court admitted the exhibit without
objection, and it was played for the jury. Love cross-examined Officer Daley
and introduced a DVD recording, Defendant’s Exhibit A, from the in-car
camera of Officer Bilinski of the scene in the alley where Love was eventually
stopped and arrested by the police. The court admitted the exhibit without
objection, and it was played for the jury. Love’s exhibit shows that he exited
the vehicle, raised his hands in the air, proceeded to place himself on all fours
about five seconds after he exited the vehicle, and, after approximately ten
additional seconds lay face down on the ground. The video depicts that, shortly
thereafter, a struggle between the officers and Love ensued in which the officers
used tasers and deployed a police dog to effect Love’s arrest.
[7] Officer Daley testified that, as he saw Love exit the vehicle, officers were
ordering Love to the ground and that Love was “ignoring them and paying
them no attention whatsoever . . . .” Transcript at 81. He added that, as Love
“continued to disregard the officers’ commands, a taser was deployed into his
person to get him to stop walking away.” Id. at 82. Officer Schlegelmilch
testified that when Love was outside the vehicle he was given “loud verbal
commands to lay on the ground,” that Love was “completely uncooperative,”
that Love “would not lay on the ground,” and that he then “deployed [his]
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 4 of 22
taser.” Id. at 116. He stated that after he tased Love, Love snapped the taser
wire, and that the dog was deployed. Officer Gray stated that Love “was not
responding to their commands to get on the ground. At that point an officer
deployed a taser.” Id. at 131. Officer Sanchez, who is a K-9 officer, testified
that he deployed the dog because “the taser was ineffective,” that he perceived
Love to be “very agitated and irritated with the police officers on [the] scene,”
that Love was “not complying with [the] officers,” and that the dog bit Love on
the forearm. Id. at 145-146. Officer Sanchez stated that after that, Love began
to squeeze the dog’s upper chest and neck area, that he heard the dog “let out a
yelp,” and that he struck Love “a couple times in the side of his torso” and
“knee[d] [Love] in the head” in an effort to free the dog. Id. at 146-147. Officer
Schlegelmilch also stated that he kicked Love three times to cause Love to
release the dog, and that the third kick he delivered, which was directed at
Love’s head, eventually caused Love to release the dog. When Officer Sanchez
returned to his vehicle he noticed that the dog had a “bite ring” on top of its
head. Id. at 148. Officer Gray testified he eventually placed Love in handcuffs
but Love “refused to give his hands,” “he kept his hands tight by his body, and
it was very difficult to get them out from under him and place him into police
custody,” and that Love “was kicking his feet.” Id. at 133-134.
[8] Love testified to his version of events. He stated that an officer approached his
parked vehicle and told him to “get the F out of the car,” that he exited the
vehicle, put his hands up, and lay face down on the ground. Id. at 234. He
further testified that he put his hands up to be cuffed, that the officers then
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 5 of 22
deployed a dog on him, that he was then tased and kicked by the officers, that
the dog bit his arm, and that he tried only to protect himself from the dog. Id. at
235.
[9] The jury found Love guilty of Counts I-III as charged. At sentencing, the court
entered a judgment of conviction on Count I as a class A misdemeanor rather
than as a class D felony. For each of his class A misdemeanor convictions,
Love was sentenced to consecutive one year sentences with all of the time
suspended to supervised probation.
Discussion
[10] The issue is whether the evidence is sufficient to support Love’s convictions for
mistreatment of a law enforcement animal and resisting law enforcement as
class A misdemeanors.4 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 reverse a conviction, however, if the record does not reveal
substantial evidence of probative value and there is a reasonable doubt in the
minds of reasonably prudent persons.” Clark v. State, 695 N.E.2d 999, 1002
(Ind. Ct. App. 1998), reh’g denied, trans. denied.
4
Love also argues that the court erred by failing to instruct the jury on self-defense. However, because we
conclude that the evidence is insufficient to support his convictions, we need not address Love’s argument on
that issue. See Smith v. State, 943 N.E.2d 421, 423 n.1 (Ind. Ct. App. 2011).
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 6 of 22
[11] Additionally, the Indiana Supreme Court has held:
We recognize the rule that we may not weigh the evidence and
may only review that evidence most favorable to the state to
determine, on a sufficiency of the evidence question, whether we
shall affirm or reverse the judgment of the trial court. Such
appellate duty, of which we take cognizance, in far too many
cases requires that we probe and sift the evidence. Thus, if as a
result of our probing and sifting the evidence most favorable to
the state, we determine that the residue of facts is so devoid of
evidence of probative value and reasonable inferences adduceable
therefrom, as to preclude guilt beyond a reasonable doubt, we
should so declare. A failure to do so is a rejection of our duty as
an appellate tribunal and tantamount to the enunciation of a rule
that any evidence no matter how infinitesimal or inferences
drawn therefrom, whether based on speculation or conjecture,
would be sufficient to establish guilt beyond a reasonable doubt.
This we are not inclined to do for to assume such a judicial
posture, neglecting our appellate responsibility, would reduce the
appellate process to an exercise in impotent and meaningless
futility.
Liston v. State, 252 Ind. 502, 511-512, 250 N.E.2d 739, 743-744 (1969).
[12] At the time of the offense, Ind. Code § 35-46-3-11(a) provided that “[a] person
who knowingly or intentionally . . . strikes, torments, injures, or otherwise
mistreats a law enforcement animal . . . commits a class A misdemeanor.”
(Subsequently amended by Pub. L. No. 158-2013, § 563 (eff. July 1, 2014); and
Pub L. No. 168-2014, § 86 (eff. July 1, 2014)). To convict Love of mistreatment
of a law enforcement animal, the State was required to prove that he “did
knowingly strike or otherwise mistreat a law enforcement animal, to wit: Bacca,
a police K-9 . . . .” Appellant’s Appendix at 17. At the time of the offense, Ind.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 7 of 22
Code § 35-44.1-3-1(a)(1) provided that a defendant commits resisting law
enforcement as a Class A misdemeanor when he “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[.]” (Subsequently amended by Pub. L. No. 158-2013, §
509 (eff. July 1, 2014); Pub. L. No. 168-2014, § 80 (eff. July 1, 2014); and Pub.
L. No. 198-2016, § 673 (eff. July 1, 2016)). To convict Love of resisting law
enforcement as a class A misdemeanor, the State was required to prove beyond
a reasonable doubt that Love “did knowingly and forcibly resist Officer
Jonathan Gray, a law enforcement officer, by struggling with Officer Gray
while he was lawfully engaged in his duties as a law enforcement officer.” Id.
[13] Love argues that the “violence and force that occurred after the stop was
gratuitously initiated by the police” and that his subsequent actions were lawful
“efforts to protect himself from serious injury . . . and cannot form the basis of
conviction for either Battery to a Law Enforcement Animal or Forcible
Resistance of a Law Enforcement Officer.” Appellant’s Brief at 5. He contends
that the video recording shows that he exited the vehicle and placed himself on
the ground without the need of force by the officers and that his “actions
toward the police dog were aimed solely at protecting himself from injury.” Id.
at 7. Love’s position is that law enforcement used excessive force against him
after he “voluntarily and peacefully surrendered himself.” Id. at 8. He states
that “there was no need for officers to release a police dog on Mr. Love,
electrocute him with multiple tasers, or kick him in the head,” and that his
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 8 of 22
convictions for mistreatment of a law enforcement animal and resisting law
enforcement should be reversed due to the officers’ use of excessive force. Id.
[14] The State’s position is that the evidence is sufficient to sustain Love’s
convictions, that Love was noncompliant with the officers’ commands, and that
his refusal “to obey the officer’s [sic] orders” resulted in the deployment of a
dog and in Love’s being tased. Appellee’s Brief at 12. It states that Love struck
the dog, squeezed it, and left a bite ring on the dog’s head, and that, after Love
was tased and following the dog’s intervention, he refused to give Officer Gray
his hands by keeping his hands and arms tight to his body before he was
ultimately handcuffed. Regarding Love’s claim of excessive force, the State
maintains that he failed to obey the officers’ orders, he was tased twice with no
effect, when the taser failed the dog was deployed, and that because of Love’s
resistance law enforcement acted reasonably to apprehend him.
[15] When addressing claims of excessive force in the context of a challenge to the
sufficiency of the evidence for resisting law enforcement, the general rule in
Indiana is that “a private citizen may not use force in resisting a peaceful arrest
by an individual who he knows, or has reason to know, is a police officer
performing his duties regardless of whether the arrest in question is lawful or
unlawful.” Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App. 2000) (quoting
Casselman v. State, 472 N.E.2d 1310, 1315 (Ind. Ct. App. 1985)), reh’g denied,
trans. denied. However, when an officer uses unconstitutionally excessive force
in effecting an arrest, that officer is no longer lawfully engaged in the execution
of his or her duty. Id. at 823.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 9 of 22
[16] Claims that law enforcement officers have used excessive force in the course of
an arrest of a free citizen are analyzed under the Fourth Amendment to the
United States Constitution and its “reasonableness” standard. Graham v.
Connor, 490 U.S. 386, 395, 109 S. Ct. 1865, 1871 (1989). Because the Fourth
Amendment test of reasonableness is not capable of precise definition or
mechanical application, its proper application requires careful attention to the
facts and circumstances of each particular case, including the severity of the
crime at issue, whether the suspect poses an immediate threat to the safety of
the officers or others, and whether he is actively resisting arrest or attempting to
evade arrest by flight. Id. at 396, 109 S. Ct. at 1872. The ‘reasonableness’ of a
particular use of force must be judged from the perspective of a reasonable
officer on the scene, “rather than with the 20/20 vision of hindsight.” Id., 109
S. Ct. at 1872. However, the “reasonableness” inquiry in an excessive force
case is an objective one; the question is whether the officers’ actions are
“objectively reasonable” in light of the facts and circumstances confronting
them, without regard to their underlying intent or motivation. Id. at 397, 109 S.
Ct. at 1872.
[17] The State must present evidence that an officer is lawfully engaged in the
execution of his duties to support a conviction for resisting law enforcement.
As touched on above, of particular importance in deciding this matter is what
Defendant’s Exhibit A, a video recording from the in-car camera of Officer
Bilinski, depicts and its impact at the appellate stage. The Indiana Supreme
Court recently discussed the significance of video evidence in Robinson v. State,
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 10 of 22
5 N.E.3d 362 (Ind. 2014). In Robinson, a sheriff’s deputy testified that he
observed a vehicle “drive off the right side, which was the south side of the
road, twice,” and that after the second incident he initiated a traffic stop. 5
N.E.3d at 364. A vehicle camera captured the thirty seconds prior to the stop.
Id. Joanna Robinson, the driver of the stopped vehicle, was arrested and
charged with operating a motor vehicle with a suspended license, possession of
marijuana, and operating a vehicle while intoxicated as class A misdemeanors
and operating with a BAC over .08 as a class C misdemeanor. Id. Robinson’s
counsel moved to suppress the evidence against her, arguing that the deputy
“did not have reasonable suspicion to justify the stop because Robinson ‘never
left her lane of traffic in any form,’” relying on the video taken by the deputy’s
vehicle camera. Id. The trial court denied Robinson’s motion, stating that it
“reviewed the video on approximately ten occasions and cannot
conclude from the video that the defendant’s vehicle actually left
the roadway . . . but it does show the vehicle veering on two
occasions onto the white fog line.” App. at 33. The trial court
noted, however, that it was “quite possible that the officer’s
actual visual observation of the defendant’s vehicle was superior
to the video camera in his car.” App. at 33. After considering all
of this evidence, the trial court concluded this case was “perhaps
a closer call” than [State v. McCaa, 963 N.E.2d 24, 31 (Ind. Ct.
App. 2012), which found reasonable suspicion for a traffic stop
when the defendant drove “slowly and off of the roadway
twice”], but that “the act of weaving onto the fog line, while not
itself an illegal act, did give a trained police officer justification to
stop and inquire further as to the driver’s condition.”
Id.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 11 of 22
[18] On transfer, the parties disputed the significance of the video, in which
Robinson observed that “the trial court conceded the video ‘did not clearly
demonstrate that Robinson’s vehicle veered off the roadway . . . but speculated
that the officer’s observations at the scene were superior to his in-car camera,’”
and the State cautioned the Court “not to ‘rest [its] determination on minutia of
an imperfect and rudimentary video.’” Id. at 365. The Court began its
discussion declaring that “[w]hile technology marches on, the appellate
standard of review remains constant,” which is to say that appellate courts “do
not reweigh the evidence.” Id. The Court also observed that it did not believe
“that the very act of reviewing video evidence constitutes impermissible appellate
reweighing” and that such evidence is “a necessary part of the record on appeal,
just like any other type of evidence.” Id. at 366. The Court found that the trial
judge listened to the deputy at the suppression hearing, as well as other
witnesses, and saw the video, and in its experience and expertise weighed the
deputy’s testimony more heavily than the video, and the Court “decline[d]
Robinson’s invitation to substitute [its] own judgment for that of the trial court
and rebalance the scales in her favor.” Id. at 367.
[19] The Court instructed that appellate courts may review video evidence like any
other evidence in the record, but reiterated that they may not reweigh the
evidence. A question therefore arises regarding the point at which reviewing
video evidence, as part of our appellate duty to probe and sift the evidence most
favorable to the State to determine whether substantial evidence of probative
value exists, becomes impermissible reweighing of evidence. For help
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 12 of 22
answering that question, we find an opinion by the Court of Criminal Appeals
of Texas, Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000),
instructive.
[20] In Carmouche, the court addressed the issue of whether the defendant consented
to being searched, in which at trial Texas Ranger Dwayne Williams gave the
following testimony:
[RANGER WILLIAMS]: So when I walked— I went from there
and walked up to Mr. Carmouche and asked him if he had any
narcotics— or I asked him if I could search him. He looked over
toward the trooper and said— pointed to him and said, “Well,
he’s already searched me.”
I said, “Do you mind if I search you again?”
He threw his hands up, said, “All right.” Turned around, put his
hands on the car. I reached around to the crotch area where [the
informant] told me it was at.
10 S.W. 3d at 326, 331. Carmouche argued on appeal that he made no such
gesture and did not give consent. Id. at 331.
[21] In evaluating whether Carmouche consented to the search, the court observed
“that the videotape from the patrol car’s camera does not support the testimony
of Ranger Williams,” noting that “critical seconds of the tape surrounding the
time of appellant’s ‘consent’ show a different sequence of events than what
Williams described at trial.” Id. Specifically, the court noted that Carmouche
was closely surrounded by four officers while his back was to the car, that a
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 13 of 22
voice told him to turn around and place his hands on the car, that “[o]nly after
appellant has raised his hands, turned around and faced the car, can Williams
be heard asking, ‘Mind if I pat you down again,’” and that “Williams’ ‘request’
to search is made as he is reaching for the crotch area of appellant’s pants.” Id.
at 332. The court also observed that no audible response by Carmouche is
contained on the tape. Id.
[22] The court noted the applicable standard of review, in which “as a general rule,
the appellate courts, including this Court, should give almost total deference to
a trial court’s determination of the historical facts that the record supports
especially when the trial court’s findings are based on an evaluation of
credibility and demeanor.” Id. It then stated that, “[i]n the unique
circumstances of this case, however, we decline to give ‘almost total deference’
to the trial court’s implicit findings,” noting that “the nature of the evidence
presented in the videotape does not pivot ‘on an evaluation of credibility and
demeanor’” and that, “[r]ather, the videotape presents indisputable visual
evidence contradicting essential portions of Williams’ testimony.” Id. It ruled
that “[i]n these narrow circumstances, we cannot blind ourselves to the
videotape evidence simply because Williams’ testimony may, by itself, be read
to support the Court of Appeals’ holding” and vacated a judgment of the Court
of Appeals of Texas that Carmouche consented to the search. Id. at 333. This
rule has since been stated that courts “give almost total deference to the trial
court’s factual determinations unless the video recording indisputably
contradicts the trial court’s findings.” State v. Houghton, 384 S.W.3d 441, 446
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 14 of 22
(Tex. App. 2012). See also U.S. v. Maddox, 549 F. App’x. 602 (8th Cir. 2014)
(noting that the dashboard camera video does not present a clear picture and
that accordingly it could not determine if the district court “clearly erred in
crediting Officer Potter’s testimony and finding he had an objectively
reasonable belief that Maddox violated the Arkansas careless driving statute”
(citing United States v. Coleman, 700 F.3d 329, 334 (8th Cir. 2012) (noting that,
on appeal, witness credibility findings are virtually unreviewable)), cert. denied,
133 S. Ct. 2369 (2013)); U.S. v. Wiley, 493 F. App’x 481 (5th Cir. 2012) (noting
that “the video recording fails to contradict the officer’s testimony” and
“therefore, does not lead to a ‘definite and firm conviction’ that the district
court erred in its factual finding that the officer first conducted a pat-down
search for weapons before retrieving the ammunition”).
[23] Turning to Defendant’s Exhibit A, a video recording from the in-car camera of
Officer Bilinski, we observe that it unambiguously shows that Love exited the
vehicle, put his hands up, and lay face down on the ground, demonstrating his
almost immediate compliance with the officers’ requests. At trial, Love’s
testimony matched what is depicted in the video when he testified that an
officer approached his parked vehicle and told him to “get the F out of the car,”
that he exited the vehicle, put his hands up, and lay face down on the ground.
Transcript at 234. He further testified that he put his hands up to be cuffed, that
the officers then deployed a dog on him, that he was tased and kicked by the
officers, that the dog bit his arm, and that he tried only to protect himself from
the dog. Id. at 235.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 15 of 22
[24] In stark contrast, Officer Daley testified that, as he saw Love exit the vehicle,
officers ordered Love to the ground, that Love was “ignoring them and paying
them no attention whatsoever,” and that because Love “continued to disregard
the officers’ commands, a taser was deployed into his person to get him to stop
walking away.” Transcript at 81-82. The video indisputably contradicts Officer
Daley’s testimony as it clearly shows that Love did not attempt to walk away
and instead almost immediately lay on the ground. Likewise, Officer
Schlegelmilch’s testimony that, after ordering Love to the ground, he was
“completely uncooperative” and “would not lay on the ground” is indisputably
contradicted by the video. Id. at 116. Officer Gray’s testimony that Love
would not “get on the ground” and that an officer deployed a taser to gain his
compliance is also contradicted by the video evidence. 5 Id. at 131.
[25] The video also reveals that prior to the officers’ use of force, Love had not made
threatening or violent actions towards the officers, but, in effecting the arrest,
the officers nevertheless tased him twice and deployed a dog who bit him. We
find that the particular use of force by the officers was not objectively
reasonable in light of the facts and circumstances confronting them. See
Graham, 490 U.S. at 397, 109 S. Ct. at 1872.
5
We note that the review of Defendant’s Exhibit A discussed in the dissent supports the conclusion that it
indisputably contradicts the officers’ testimony. As discussed in the dissent, Love at the rear of the van “gets
onto the ground” and “places his chin in the palm of his hand as if he is relaxing.” Supra at 21. Thus, the
dissent acknowledges that it could not identify any forcible resistance in the video, and the officers’ testimony
that Love would not lay on the ground and attempted to walk away necessitating the deployment of tasers
and the police dog to stop him does not comport with the video evidence.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 16 of 22
[26] As was the case in Carmouche, under these narrow circumstances we cannot
blind ourselves to the videotape evidence simply because the officers’ testimony
may, by itself, support the guilty verdicts. Based upon the record, we cannot
say that the officers were acting in the lawful performance of their duties or that
Love was forcibly resisting when they tased Love and deployed the dog, and
therefore the evidence is insufficient to support Love’s convictions for resisting
law enforcement and mistreatment of a law enforcement animal. See Shoultz,
735 N.E.2d at 823-825 (holding that a law enforcement officer who used
unconstitutionally excessive force was no longer lawfully engaged in the
execution of his duty and reversing the defendant’s conviction for resisting law
enforcement). See also Aguirre v. State, 953 N.E.2d 593, 596-597 (Ind. Ct. App.
2011) (reversing a conviction for forcibly resisting law enforcement where there
was no evidence that the defendant was violent, threatening, or otherwise
forcibly resistant towards the officer), trans. denied; Colvin v. State, 916 N.E.2d
306, 309 (Ind. Ct. App. 2009) (reversing a conviction for forcibly resisting law
enforcement where the officers testified that the defendant was not complying
with the officers’ commands, and observing that “the officers had to use force to
execute the arrest,” that the State did not present evidence that the defendant
used force or was violent or threatening towards the officers, and that the
defendant did not stiffen his arms or otherwise forcibly resist the officers), trans.
denied.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 17 of 22
Conclusion
[27] For the foregoing reasons, we reverse Love’s convictions for mistreatment of a
law enforcement animal and resisting law enforcement as class A
misdemeanors.
[28] Reversed.
Baker, J., concurs.
Pyle, J., dissents with separate opinion.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 18 of 22
IN THE
COURT OF APPEALS OF INDIANA
Royce Love, Court of Appeals Case No.
71A03-1511-CR-2009
Appellant-Defendant,
v.
State of Indiana,
Appellees-Plaintiff.
Pyle, Judge dissenting.
[29] If I were presented with the script of the latest Star Wars movie, The Force
Awakens, before it was released, and asked whether it was a good story, I could
probably make an independent assessment concluding that it was excellent.
Court of Appeals of Indiana | Opinion 71A03-1511-CR-2009 | September 8, 2016 Page 19 of 22
However, I would not be in the best position to make that judgment. Quite
simply, I did not see the movie. I did not see the mind-blowing special effects; I
did not see the facial expressions of the actors giving meaning to the story; I did
not hear the humor, passion, and sorrow that filled the voices of the actors; and
I did not hear John Williams’s legendary soaring symphony. In fact, my
limited perspective would impact the accuracy of my conclusion. As a result, if
you really want to know whether the script is good, you need to go to the
movie.
[30] Likewise, at the appellate level, my colleagues and I are asked to make
judgments based upon the reading of a script, a transcript. However, we are
often not in the best position to make decisions about which witnesses to
believe or which piece of evidence is most important. This is true because we
do not attend the movie; we are not present at the trial or hearing. It is
precisely for this reason that when a defendant challenges his or her conviction
on appeal, our standard of review consistently warns that we will not reweigh
the evidence or judge the credibility of witnesses. Robinson v. State, 5 N.E.3d
362 (Ind. 2014).
[31] Jurors are in the best position to make determinations about who and what to
believe. They get to see the facial expressions of witnesses; they get to hear the
pain or remorse in the voices of victims, family members, and defendants; they
get to watch body language; and they get to make judgments based on the
intonation in a witness’s voice. None of these critical decision making factors
are reflected in an appellate record.
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[32] My able colleagues assert that the record in this case is devoid of evidence and
reasonable inferences that would support Love’s convictions for mistreatment
of a law enforcement animal and resisting law enforcement. My colleagues
believe that the video: (1) shows that Love complied which the officer’s
instructions; and (2) contradicts the testimony of the officers. I respectfully
disagree.
[33] After a five-minute chase through the streets of South Bend, the video shows
Love coming to a stop after pulling into an alley. At gunpoint, the officers
order him out of the van, onto the ground, and tell Love not to move. (Tr. 81,
Defendant’s Exhibit A). Instead, Love gets out of the van and starts walking to
its rear. After reaching the rear of the van, Love then gets onto the ground. He
does not remain still; Love’s hands are out in front making gestures. Love then
places his chin in the palm of his hand as if he is relaxing. At this point, the
officers take action to arrest and gain his compliance. Because the video
camera became obscured, the video does not show the ensuing altercation. The
only evidence admitted to determine what occurred next was the testimony of
witnesses.
[34] In my view, there was ample evidence from which a jury could reasonably infer
beyond a reasonable doubt that Love interfered with a law enforcement animal
and resisted law enforcement. It is the jury’s role to resolve any real or
perceived conflicts in the evidence. In fact, this jury was instructed as follows:
(1) “You are the only judges of the weight of both the physical evidence and the
testimony – the believability, or “credibility” – of each of the witnesses. . . . [;]”
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(2) “You should try to fit the evidence to the presumption that the defendant is
innocent. . . . [;]” (3) “Furthermore, you should evaluate the testimony of each
witness in light of all relevant physical evidence, and the reasonable inferences
drawn from such physical evidence. . . . [;]” (4) “In weighing the evidence to
determine what or whom you will believe, you should use your own
knowledge, experience and common sense gained from day to day living. . . .
[;]” and (5) “You should give the greatest weight to that evidence which
convinces you most strongly of its truthfulness.” (App. 65) (emphasis added).
[35] Love exercised his right to have the State’s case measured by a jury of his peers.
He exercised his right to represent himself, testified, and presented evidence.
(Defendant’s Exhibit A). The State, bearing the burden of proof, presented its
evidence through witnesses and exhibits. At the conclusion of the trial, the
jury, properly instructed, considered all of the evidence and decided that the
State had proved its case beyond a reasonable doubt. Cf. Burton v. State, 978
N.E.2d 520 (Ind. Ct. App. 2012) (conviction for resisting law enforcement was
overturned because excessive force instruction was tendered and refused despite
video showing clear evidence of abusive police conduct). Because I believe that
my colleagues are substituting their judgment for that of the jury, I dissent. I
would affirm the jury’s verdict. Why? Quite simply, I was not at the movie.
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