MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 16 2017, 9:18 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Thomas P. Keller Curtis T. Hill, Jr.
South Bend, Indiana Attorney General
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Norbert Machan, August 16, 2017
Appellant-Defendant, Court of Appeals Case No.
71A03-1703-CR-549
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jane Woodward
Appellee-Plaintiff Miller, Judge
Trial Court Cause No.
71D01-1509-F5-195
Crone, Judge.
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Case Summary
[1] Norbert Machan appeals his conviction for level 5 felony escape. He claims
that the evidence is insufficient to support his conviction and that the statute
defining “lawful detention” is unconstitutionally vague. Finding the evidence
sufficient to support his conviction and finding that he has waived and
otherwise failed to establish his vagueness claim, we affirm.
Facts and Procedural History
[2] Machan was released on bond on certain criminal charges. He failed to appear
for a scheduled court date, and when he was found and brought before the trial
court, the magistrate raised his bond and asked him whether he had the funds
to pay the bond. He replied that he did not, and the magistrate ordered him
detained. A deputy sheriff approached Machan and ordered him to place his
hands behind his back. Before the deputy could apply the handcuffs, Machan
fled the courtroom and then the courthouse. He then ran down the street, with
officers in pursuit. When the officers ordered him to stop, he yelled, “F**k
you,” and continued running. Tr. Vol. 2 at 43.
[3] The State charged Machan with level 5 felony escape. A jury convicted him as
charged, and the trial court sentenced him to a four-year term.
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Discussion and Decision
Section 1 – The evidence is sufficient to support Machan’s
conviction.
[4] Machan maintains that the evidence is insufficient to support his escape
conviction. When reviewing a challenge to the sufficiency of evidence, we
neither reweigh evidence nor judge witness credibility. Drane v. State, 867
N.E.2d 144, 146 (Ind. 2007). Rather, we consider only the evidence and
reasonable inferences most favorable to the verdict and will affirm the
conviction “unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt.” Id. It is therefore not necessary that
the evidence “overcome every reasonable hypothesis of innocence.” Id.
(citation omitted).
The jury convicted Machan of level 5 felony escape. To establish this offense,
the State was required to prove that Machan intentionally fled from lawful
detention. Ind. Code § 35-44.1-3-4(a). Machan admits that he intentionally
fled the courtroom and the courthouse but claims that the State failed to
establish that he was lawfully detained when he fled.
[5] Indiana Code Section 35-31.5-2-186(a) defines “lawful detention” as follows:
(1) arrest;
(2) custody following surrender in lieu of arrest;
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(3) detention in a penal facility;
(4) detention in a facility for custody of persons alleged or found
to be delinquent children;
(5) detention under a law authorizing civil commitment in lieu of
criminal proceedings or authorizing such detention while
criminal proceedings are held in abeyance;
(6) detention for extradition or deportation;
(7) placement in a community corrections program’s residential
facility;
(8) electronic monitoring;
(9) custody for purposes incident to any of the above including
transportation, medical diagnosis or treatment, court
appearances, work, or recreation; or
(10) any other detention for law enforcement purposes.
Statutory interpretation is a question of law to be reviewed de novo. Adams v.
State, 960 N.E.2d 793, 797 (Ind. 2012). Our primary objective when
interpreting a statute is to ascertain and give effect to the intent of the
legislature. Day v. State, 57 N.E.3d 809, 812 (Ind. 2016). “We examine the
statute as a whole and give common and ordinary meaning to the words
employed.” Anglin v. State, 787 N.E.2d 1012, 1016 (Ind. Ct. App. 2003), trans.
denied (2004).
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[6] In Anglin, another panel of this Court interpreted the “lawful detention”
statute,1 focusing on when lawful detention begins and who performs the
detention. Id. at 1016-17. There, Anglin was before the trial court for
sentencing, and after the court pronounced a sentence of one year in the county
jail, the court ordered him to wait in the hall for the transport officer to take
him to jail. Id. at 1015. Instead of waiting, Anglin walked out of the
courthouse and was not found until weeks later. Id. He was convicted of
escape and appealed, challenging the sufficiency of the evidence to establish
that he was under “lawful detention” when he fled. Id. The Anglin court
interpreted the statutory phrase “any other detention for law enforcement
purposes” and determined that the court’s order effectively placed Anglin under
lawful detention, reasoning that
Indiana Code § 35-41-1-18 does not explicitly limit its application
to situations in which a law enforcement officer has control of an
individual. While that would generally be the accepted view of
many of the factors which are considered as lawful detention, it is
not necessarily so. Further, what is critical in determining the
meaning of “any other detention for law enforcement purposes”
is that an individual is being detained so that he is subject to
legitimate law enforcement purposes. In this case, the law
enforcement purpose for which Anglin was ordered to wait in the
hallway was for transportation to the jail and incarceration to
serve the sentence which he had just been ordered to serve.
While the initial detention itself was not performed by a law
enforcement officer, that is not fatal to the conviction for the
1
Anglin interpreted Indiana Code Section 35-41-1-18, the predecessor statute to Indiana Code Section 35-
31.5-2-186, which contained identical language to define “lawful detention.”
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crime as charged by the State. The trial court's order indicated
that the sentence was to begin immediately, that actual
incarceration would take place momentarily, and that Anglin
was being turned over to the Sheriff's Department as soon as the
hearing was over. Anglin was “detained” by the trial court in
that he was not free to leave the building as soon as he was
informed that the Sheriff's Department would pick him up at the
designated location in the courthouse. That Anglin was not in
the physical custody of the transport officer at the time that he
fled does not exclude the conclusion that he was in “detention for
law enforcement purposes.”
Id. at 1017.
[7] Machan does not attempt to distinguish Anglin. Nor could he effectively do so,
as the facts in this case are even more compelling regarding a finding of lawful
detention. As best we can discern, he simply asks that we decline to follow
Anglin. We decline his unsupported invitation. Here, the magistrate2 ordered
that Machan be detained when Machan admitted that he could not pay the
increase in bond stemming from his failure to appear. When the deputy
ordered Machan to put his hands behind his back and attempted to handcuff
him, Machan fled. Whether the deputy actually touched Machan’s arm before
Machan fled is irrelevant, as the magistrate’s order had been given and the
officer’s attempts to subdue Machan were clearly underway. Machan ran out
of the courthouse and down the street, with officers in pursuit, and yelled “F**k
2
Machan correctly observes that a magistrate is not considered a law enforcement officer under Indiana
Code Section 35-41-1-17. Nevertheless, Indiana Code Section 33-23-5-5 empowers a magistrate to compel a
witness’s attendance, set bail, enforce court rules, and enter a final order.
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you,” when they ordered him to stop. Tr. Vol. 2 at 43. Based on these facts,
we conclude that Machan intentionally fled lawful detention. Thus, the
evidence is sufficient to support his escape conviction.
Section 2 – Machan has waived his vagueness challenge to the
lawful detention statute and has otherwise failed to establish
that the statute is unconstitutionally vague.
[8] Machan also contends that Indiana Code Section 35-31.5-2-186, which defines
lawful detention, is unconstitutionally vague because “[a] person of ordinary
intellect would be hard pressed to realize that running from law enforcement
would be the same as escaping from custody.” Appellant’s Br. at 16. Notably,
he did not file a motion to dismiss his escape charge for constitutional defect.
“[G]enerally, the failure to file a proper motion to dismiss raising a
constitutional challenge waives the issue on appeal.” Lee v. State, 973 N.E.2d
1207, 1209 (Ind. Ct. App. 2012), trans. denied. Because Machan failed to raise
the issue by motion below, he has waived it for our consideration.
[9] Waiver notwithstanding, the issue of a statute’s constitutionality is a question of
law, and we review using a de novo standard, resolving any reasonable doubts
and constructions in favor of the statute’s constitutionality. Id. A person
challenging the constitutionality of a statute must overcome a presumption that
the statute is constitutional. Id. “A fundamental aspect of our nation’s
jurisprudence is that criminal statutes must give a person of ordinary
intelligence fair notice that his contemplated conduct is forbidden so that no
[person] shall be held criminally responsible for conduct which he could not
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reasonably understand to be proscribed.” Id. (quoting Lock v. State, 971 N.E.2d
71, 74 (Ind. 2012)). In other words, “the statutory language must ‘convey
sufficiently definite warning as to the proscribed conduct when measured by
common understanding.’” Brown v. State, 868 N.E.2d 464, 467 (Ind. 2007)
(citation omitted).
[10] Indiana Code Section 35-31.5-2-186 lists nine specific definitions for the term
“lawful detention” followed by a catchall definition, which reads, “(10) any
other detention for law enforcement purposes.” Machan challenges this
provision as “so broad as to render it unconstitutionally vague.” Appellant’s
Br. at 14. We disagree. A catchall provision by its nature will be broader, in
the interest of covering circumstances not specifically enumerated in other
subsections. This eliminates the necessity of contemplating and listing every
specific circumstance that amounts to lawful detention. Catchall provisions are
included in a variety of statutes for this very reason.
[11] In Woods v. State, 236 Ind. 423, 425-26, 140 N.E.2d 752, 752-53 (1957), our
supreme court reviewed a vagueness challenge to the statute defining the
offense of “obtaining property under false pretense.” The statute in effect at the
time included the phrase, “obtains from any person, persons, firm or
corporation any money, or the transfer of any bond, bill, receipt, promissory
note, draft, or check, or thing of value.” Id. at 426, 140 N.E.2d at 753. There,
Woods obtained a shotgun by means of a forged invoice. Id. He challenged the
catchall clause “or thing of value,” claiming that the maxim of ejusdem generis
limited the “things of value” to those in the same category as money, bonds,
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bills, receipts, promissory notes, drafts, or checks, that is, commercial paper and
like intangibles. Id. Our supreme court disagreed, concluding that “any
reasonable person would recognize that a gun is a thing of value,” and
emphasizing that ejusdem generis is not a rule of mandatory application. Id. at
429, 140 N.E.2d at 754.
[12] Finally, “[a] statute is void for vagueness only if it is vague as applied to the
precise circumstances of the instant case.” Zitlaw v. State, 880 N.E.2d 724, 731
(Ind. Ct. App. 2008), trans. denied. Here, it is not vague. The magistrate told
Machan that he was being detained, and while the deputy was attempting to
place Machan in handcuffs, he fled. He ran outside the building and down the
street, yelling profanities to pursuing officers who ordered him to stop. A
person of ordinary intelligence would understand that he is fleeing from lawful
detention in these circumstances. Even absent waiver, Machan has failed to
establish that the statute is unconstitutionally vague. Accordingly, we affirm.
[13] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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