MEMORANDUM DECISION FILED
Pursuant to Ind. Appellate Rule 65(D), Nov 04 2016, 9:16 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any 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
Suzy St. John Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Paula J. Beller
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Antonio West, November 4, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1603-CR-578
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Linda Brown,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G10-1509-CM-33910
Bailey, Judge.
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Case Summary
[1] Following a bench trial, Antonio West (“West”) was convicted of Resisting
Law Enforcement, as a Class A misdemeanor.1 West appeals, raising the sole
issue of whether the evidence is sufficient to support his conviction. We affirm.
Facts and Procedural History
[2] On September 22, 2015, Officer Kevin Jennings (“Officer Jennings”) of the
Indianapolis Metropolitan Police Department (“IMPD”) was entering his
patrol vehicle when a citizen approached him. The citizen, who was never
identified, said “Hey, do you see the gentleman across the street beating a
woman[?] He is wearing a blue coat and a white hat[.]” (Tr. at 52.) When
Officer Jennings looked across the street, he saw a woman on the ground. He
heard yelling. He also observed a man, later identified as West, walking away
from the woman. West was wearing a blue top and a white hat.
[3] To approach West, Officer Jennings drove across the street and pulled into a
nearby gas station. West soon saw Officer Jennings and began running.
Officer Jennings drove out of the gas station, following West. Officer Jennings
saw West enter the passenger side of a vehicle and then saw the vehicle began
to drive away. With his patrol vehicle’s lights and siren activated, Officer
Jennings followed the vehicle for about a block and a half. The vehicle then
1
Ind. Code § 35-44.1-3-1(a)(3).
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stopped, and West jumped out and began running. Officer Jennings exited his
vehicle and pursued West. When approximately twenty yards behind West,
Officer Jennings yelled, “Stop[,] Police.” (Tr. at 58.) West continued to run.
Additional IMPD officers responded to the scene and eventually arrested West.
[4] On February 23, 2016, West was brought to trial2 on a charge of resisting law
enforcement. Following the bench trial, West was convicted. He now appeals.
Discussion and Decision
[5] When reviewing the sufficiency of the evidence to support a conviction, we
neither reweigh the evidence nor assess witness credibility. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). We consider only the evidence supporting the
judgment and any reasonable inferences that can be drawn from that evidence.
Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We must affirm the
conviction if there is “substantial evidence of probative value supporting each
element of the offense such that a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.” Willis v. State, 27 N.E.3d 1065,
1066 (Ind. 2015).
[6] To convict West of resisting law enforcement beyond a reasonable doubt, the
State had to prove that West knowingly fled from Officer Jennings after he had,
by visible or audible means, identified himself and ordered West to stop. I.C. §
2
An earlier jury trial on January 25, 2016 resulted in a mistrial.
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35-44.1-3-1(a)(3). Additionally, the Indiana Supreme Court has held that the
State must also prove that the order to stop was lawful. Gaddie v. State, 10
N.E.3d 1249, 1255-56 (Ind. 2014). This is so because a conviction of resisting
law enforcement, absent a lawful order to stop, 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.
Both the Fourth Amendment to the United States Constitution and Article 1,
Section 11 of the Indiana Constitution protect citizens against unreasonable
searches and seizures. U.S. Const. amend. IV; Ind. Const. art. 1, § 11.
[7] Here, West’s sole contention is that the State failed to prove that Officer
Jennings’s order to stop was lawful under constitutional principles. Thus, West
contends, there is insufficient evidence to support his conviction of resisting law
enforcement.
The Fourth Amendment
[8] Under the Fourth Amendment, at minimum, the government’s seizure of a
citizen must rest on specific, articulable facts that lead an officer to reasonably
suspect that criminal activity is afoot. Gaddie, 10 N.E.3d at 1253 (citing Terry v.
Ohio, 392 U.S. 1, 30 (1968)). Determinations of reasonable suspicion are made
based upon the totality of the circumstances. Platt v. State, 589 N.E.2d 222, 226
(Ind. 1992) (citing United States v. Sokolow, 490 U.S. 1, 8 (1989)). Given the
totality of the circumstances, “officers must have a particularized and objective
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basis for suspecting the particular person stopped of criminal activity.” United
States v. Cortez, 449 U.S. 411, 417-18 (1981).
[9] Here, Officer Jennings ordered West to stop, in part, based on a tip from an
unidentified informant. An anonymous tip alone does not always generate the
reasonable suspicion necessary for a valid stop. Lampkins v. State, 682 N.E.2d
1268, 1271 (Ind. 1997), modified on reh’g on other grounds (citing Alabama v.
White, 496 U.S. 325, 329-30 (1990)). “But under appropriate circumstances, an
anonymous tip can demonstrate ‘sufficient indicia of reliability to provide
reasonable suspicion to make [an] investigatory stop.’” Navarette v. California,
134 S.Ct. 1683, 1688 (2014) (quoting White, 496 U.S. at 327). One
circumstance indicating a tip is reliable is when an informant provides
information that accurately predicts a suspect’s future behavior. Id. at 1688
(citing White, 496 U.S. at 332). Another circumstance indicating reliability is
when an informant claims eyewitness knowledge of alleged wrongdoing. Id. at
1689 (citing Illinois v. Gates, 462 U.S. 213, 235 (1983) (observing that eyewitness
knowledge “lends significant support to the tip’s reliability.”). Furthermore,
when a tip is made “contemporaneous with the observation of criminal activity
or made under the stress of excitement caused by a startling event . . . those
considerations weigh in favor of the [informant’s] veracity . . . .” Id. at 1689.
[10] The facts favorable to the judgment indicate that an unidentified citizen told
Officer Jennings that there was a battery in progress across the street, and
identified a man in a blue coat and white hat as the alleged batterer. Officer
Jennings then looked across the street, heard yelling, and saw a woman on the
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ground. He saw a man who fit the description, West, walking away from the
woman. Notably, the concerned citizen provided the tip to Officer Jennings
having just personally witnessed the alleged criminal activity, weighing in favor
of the informant’s veracity. See id. Officer Jennings was immediately able to
corroborate the tip by observing what appeared to be the aftermath of a battery.
See State v. Renzulli, 958 N.E.2d 1143, 1148 (Ind. 2011) (in evaluating the
reliability of a tip, finding notable a lack of elapsed time between law
enforcement receiving the tip and finding a vehicle fitting the informant’s
description in the same described area). Here, too, “there is no evidence to
suggest that the citizen concocted a false report, told some ‘tall tale’ . . . or
otherwise acted in a manner which might have placed the citizen’s motive or
credibility at issue.” Bogetti v. State, 723 N.E.2d 876, 879 (Ind. Ct. App. 2000).
[11] Given that the informant’s tip was contemporaneous with witnessing a
potential battery, and in light of Officer Jennings’s immediate corroborating
observations, we find that the State presented sufficient evidence that the order
to stop comported with the Fourth Amendment.
Article 1, Section 11
[12] The text of Article 1, Section 11 of the Indiana Constitution is similar to that of
the Fourth Amendment. However, we conduct a separate, independent inquiry
focusing on whether the police conduct was “reasonable under the totality of
the circumstances.” State v. Washington, 898 N.E.2d 1200, 1205-06 (Ind. 2008).
In evaluating reasonableness, we consider three factors: “1) the degree of
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concern, suspicion, or knowledge that a violation has occurred, 2) the degree of
intrusion the method of the search or seizure imposes on the citizen’s ordinary
activities, and 3) the extent of law enforcement needs.” Litchfield v. State, 824
N.E.2d 356, 361 (Ind. 2005).
[13] Here, Officer Jennings received a tip from an informant personally witnessing a
potential battery. The nature of the contemporaneous tip, coupled with Officer
Jennings’s observations, support the conclusion that Officer Jennings had a
high degree of concern that West committed a criminal act. As to the degree of
intrusion, although Officer Jennings did not seize West, Officer Jennings
testified that he intended to stop West to question him, an investigatory stop
that would have imposed a relatively low degree of intrusion on West. Finally,
as to the extent of law enforcement needs, Officer Jennings could have first
interviewed the alleged victim to verify the tip. However, West was walking
away from the scene and could have left the area, making him difficult to later
identify. See United States v. Hensley, 469 U.S. 221, 229 (observing the practical
law enforcement concern that in some circumstances “[r]estraining police
action until after probable cause is obtained would not only hinder the
investigation, but might also enable the suspect to flee in the interim and to
remain at large.”).
[14] We find that the State presented sufficient evidence that Officer Jennings’s
conduct was reasonable under the totality of the circumstances, thus, the order
to stop did not affront West’s rights under the Indiana Constitution.
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Conclusion
[15] Officer Jennings’s order to stop was constitutionally permissible, and the State
presented evidence sufficient to convict West of resisting law enforcement.
[16] Affirmed.
Riley, J., and Barnes, J., concur.
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