FILED
Jun 29 2018, 1:51 pm
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
IN THE
Indiana Supreme Court
Supreme Court Case No. 63S04-1709-CR-570
Brian L. Paquette,
Appellant (Defendant below),
–v–
State of Indiana,
Appellee (Plaintiff below).
Argued: October 12, 2017 | Decided: June 29, 2018
Appeal from the Pike Circuit Court, No. 63C01-1602-F3-73
The Honorable Jeffrey L. Biesterveld, Judge
On Petition to Transfer from the Indiana Court of Appeals,
No. 63A04-1612-CR-02891
Opinion by Justice David
Chief Justice Rush, Justice Massa, Justice Slaughter, and Justice Goff concur.
David, Justice.
We are asked to resolve whether a defendant can be convicted of
multiple felony resisting law enforcement charges when those charges
stem from a single incident of resisting. For reasons discussed herein, we
find that Indiana Code section 35-44.1-3-1 authorizes only one conviction
for felony resisting law enforcement where the defendant engages in a
single act of resisting while operating a vehicle that causes multiple
deaths. Accordingly, we reverse the trial court and remand for revised
sentencing.
Facts and Procedural History
On the evening of February 2, 2016, Indiana Police State Trooper James
Manning (“Trooper Manning”) was parked on the northbound shoulder
of I-69, near Petersburg, Indiana. A motorist pulled over and informed
Trooper Manning that he observed a blue Chevy Tahoe driving
northbound on the southbound lanes of the interstate. Trooper Manning
activated his patrol vehicle’s emergency signals—the lights and siren—
and gave chase, driving northbound on I-69. Shortly thereafter, he
spotted a blue SUV driving on the wrong side of the road. Officers later
learned that Brian L. Paquette was driving that vehicle.
As Trooper Manning approached the blue SUV, he aimed his spotlight
at the fleeing vehicle. Trooper Manning then pulled into the median, and
Paquette seemed to slow down. Instead of coming to a full stop, however,
Paquette made a U-turn onto the northbound lane and continued driving
on the wrong side of the road, this time heading south. Trooper Manning
immediately veered onto the southbound road and followed Paquette,
once again shining his spotlight at the blue SUV.
At the same time, several passenger vehicles traveled north on the
northbound road. Among those was a vehicle occupied by Jason and
Samantha Lowe, who were returning to their home in Fishers, Indiana
after visiting Samantha’s mother at an Evansville hospital. Also traveling
northbound on I-69 were Stephanie Molinet and Autumn Kapperman,
who were riding in a Ford Focus to pick up Kapperman’s sister and her
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newly-born niece from Riley Hospital. Kapperman was expecting a child
of her own at the time of the incident.
Trooper Manning followed in pursuit and Paquette continued
southbound, driving between two northbound lanes. Within two miles of
making the U-turn, Paquette’s SUV collided head-on with Molinet’s Ford
Focus, striking the passenger side where Kapperman was seated. Molinet,
Kapperman, and Kapperman’s unborn child died as a result of the crash.
The impact of the collision caused Paquette’s Chevy Tahoe to flip over
and land on the driver’s side of the Lowe’s vehicle, instantly killing Jason
Lowe.
Paquette survived the crash. While officers waited for firefighters to
extract Paquette from his vehicle, Paquette told an officer that, at the time
of the crash, he believed he was being chased by farmers through a field.
He also believed he was carrying a female passenger, but officers found
no evidence of another passenger at the crash site.
The State charged Paquette with a total of eleven offenses. Among
those were three counts for each of the following: resisting law
enforcement by fleeing in a vehicle causing death, a Level 3 felony;
operating a vehicle with methamphetamine in his blood causing death, a
Level 4 felony; and reckless homicide, a Level 5 felony. Each duplicative
count related to one of the three deceased victims. Paquette was also
charged with operating a vehicle with methamphetamine in his body
causing serious bodily injury to Samantha Lowe, a Level 6 felony; and
possession of methamphetamine, a Level 6 felony.
Paquette agreed to plead guilty to all charges, but reserved the right to
ask the court to enter only one conviction and sentence for the felony
resisting law enforcement charge. Paquette argued that he engaged in
only one act of resisting, thus conviction on all three resisting law
enforcement felony charges—one for each deceased victim—violated a
state and federal prohibition on double-jeopardy. On that issue, the trial
court ruled against Paquette, finding that conviction and sentence on all
three counts of resisting law enforcement was not barred by double-
jeopardy protections.
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The trial court then entered convictions on all three Level 3 felony
counts of resisting law enforcement and on the charge of operating a
vehicle with methamphetamine in his blood causing serious bodily injury.
The court merged the remaining counts into the four aforementioned
counts. For each of the three felony resisting law enforcement convictions,
the trial court imposed 16-year sentences to be served consecutively. For
the operating while intoxicated conviction, Paquette received a 2.5-year
sentence to be served consecutively with the resisting sentences. In total,
Paquette was to serve fifty-and-a-half years executed.
Paquette appealed, making a statutory argument instead of a
constitutional one. He argued that, as written, Indiana’s resisting law
enforcement statute authorizes only one conviction for each act of
resisting and that the trial court, therefore, erred when it entered three
convictions and sentences against him. 1 Relying on its own precedent in
Armstead v. State, 549 N.E.2d 400 (Ind. Ct. App. 1990), the Court of
Appeals reversed and remanded for revised sentencing. It held that the
legislature intended only one conviction for each act of resisting, and since
Paquette had only engaged in one act of resisting when he fled using a
vehicle, he could be convicted of only one count of felony resisting law
enforcement. Paquette v. State, 79 N.E.3d 932, 935-36 (Ind. Ct. App. 2017).
The State sought transfer, which we granted, thereby vacating the
Court of Appeals’ opinion. Ind. Appellate Rule 58(A).
Standard of Review
Matters of statutory interpretation, which inherently present pure
questions of law, are reviewed de novo. Jackson v. State, 50 N.E.3d 767, 770
(Ind. 2016).
1Paquette also argued that the sentence imposed by the trial court was inappropriate, but the
Court of Appeals declined to address that argument because Paquette’s sentence would be
modified on remand as a result of its decision.
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Discussion and Decision
The question we address today is identical to the one raised before our
Court of Appeals: whether multiple convictions and sentences are
permissible under Indiana Code section 35-44.1-3-1, where the defendant
operated a vehicle in a manner that caused death to multiple people. The
defendant, Paquette, was charged with several offenses, but only three
felony resisting law enforcement counts are at issue here.
In relevant part, Indiana Code section 35-44.1-3-1 states that a person
commits the crime of resisting law enforcement when 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 . . . and ordered the
person to stop.” Ind. Code § 35-44.1-3-1(a)(3).
Resisting law enforcement is ordinarily a Class A misdemeanor, but
subsection (b) provides several exceptions. Notably, under paragraph
(b)(3), the offense becomes a Level 3 felony if, while resisting law
enforcement as described in subsection (a), “the person operates a vehicle
in a manner that causes the death of another person . . .” Ind. Code § 35-
44.1-3-1(b)(3). Paquette’s three counts for Level 3 felony resisting law
enforcement relate to three victims killed as a result of his flight.
Whether Paquette resisted law enforcement was not the basis for the
Court of Appeals’ reversal and is not in dispute today. Paquette fled from
an officer who was driving a marked police vehicle with the emergency
lights and siren activated, and Paquette ignored the officer’s signal to pull
over. Likewise, whether Paquette operated the vehicle in a manner that
caused death is clear; drug-induced hallucinations led Paquette to drive
his vehicle on the wrong side of the interstate, which directly caused the
death of three motorists who had the misfortune of crossing paths with
Paquette. Instead, the Court of Appeals’ reversal hinged on its
interpretation of the relevant statute. It held that Indiana Code section 35-
44.1-3-1 authorizes only one conviction where the offense stems from a
single act of resisting law enforcement. “Because Paquette engaged in
only one act of resisting,” the Court of Appeals found that “he [could] be
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convicted and sentenced on only one count of resisting law enforcement.”
Paquette, 79 N.E.3d at 936.
The State challenges the Court of Appeals’ holding, proposing a
different interpretation of the statute. It argues that the trial court was
correct in entering judgment on three counts of resisting law enforcement
while operating a vehicle in a manner that caused death—one count for
each deceased victim—because the legislature intended multiple
convictions for multiple deaths resulting from the same act of resisting.
Recognizing that our Court of Appeals is split on this issue, we granted
transfer.
I. The Court of Appeals’ reliance on its own
precedent in Armstead v. State was not misplaced.
Our Court of Appeals relied heavily on Armstead, 549 N.E.2d at 400 to
find that Paquette could not be convicted of multiple felony resisting law
enforcement charges where a single act of resisting law enforcement led to
multiple deaths. While Paquette urges us to adopt the Court of Appeals’
holding in Armstead, the State argues that reliance on Armstead was
entirely misplaced because Armstead dealt only with offenses against
multiple officers. We begin by first addressing whether Armstead is
inapplicable.
The Court of Appeals’ reliance on Armstead was not misplaced because
the Armstead court did not limit its holding to harms suffered by police
officers. While it is true that the Armstead court addressed only section (a)
and paragraph (b)(1) in its decision and made no mention of acts of
resisting law enforcement that reach out into the public, the Armstead
panel used language that suggests it intended its holding to extend to
other portions of the statute—even those portions not at issue in that case.
Two parts of the Armstead opinion come to mind in examining the extent
of the holding’s application. First, the court stated that “[t]he offenses set
forth in title 35, art. 44, ch. 3 do not constitute crimes against the person.”
Armstead, 549 N.E.2d at 401. Second, it found that “[a] person who
violates [Indiana Code section] 35-44-3-3 harms the peace and dignity of
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the State . . . and its law enforcement authority.” Id. In both instances, the
Armstead court referred to the entire statute instead of limiting its rationale
to the portions that were at issue in the case. The court’s broad language
indicates that the panel deciding Armstead contemplated the impact its
holding would have on other portions of the statute and intended it to
apply to those as well. Thus, we find unpersuasive the argument that
Armstead is inapplicable here because its holding has a narrow application.
We recognize that the statute in place at the time of the Armstead
decision was different from the one used to convict Paquette, but we find
the rationale used by the Court of Appeals to decide Armstead applies with
equal force to the current version of the statute. When Armstead was
decided, the resisting law enforcement statute was codified in Indiana
Code section 35-44-3-3. The structure of the relevant subsections was
essentially the same as it is now. 2 The clause making it a felony to resist
law enforcement while “operat[ing] a vehicle in a manner that causes the
death of another person” was added as paragraph (b)(3) in 1993, see P.L.
2 In 1990, subsections (a) and (b) of the statute provided:
(a) A person who knowingly or intentionally:
(1) 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 his duties as an officer;
(2) Forcibly resists, obstructs, or interferes with the authorized service or
execution of a civil or criminal process or order of a court; or
(3) Flees from a law enforcement officer after the officer has, by visible or
audible means, identified himself and ordered the person to stop;
Commits resisting law enforcement, a Class A misdemeanor, except as provided
in subsection (b).
(b) The offense under subsection (a) is a:
(1) Class D felony if, while committing it, the person draws or uses a deadly
weapon, inflicts bodily injury on another person, or operates a vehicle in
a manner that creates a substantial risk of bodily injury to another
person; and
(2) Class C felony if, while committing it, the person operates a vehicle in a
manner that causes serious bodily injury to another person . . . .
Ind. Code § 35-44-3-3 (1988).
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248-1993, § 1, but its language is substantially similar to portions of the
statute in the earlier version considered by the Armstead court.
Specifically, paragraph (b)(2) strikes a significant resemblance to the
paragraph at issue in this case. While paragraph (b)(2) in the earlier
version made it a felony to resist law enforcement if the offense was
committed by a person “operat[ing] a vehicle in a manner that cause[d]
serious bodily injury to another person,” Ind. Code § 35-44-3-3(b)(2) (1988),
the paragraph at issue now enhances the resisting law enforcement
offense where the defendant operates a vehicle, which causes death of
another person. The only significant difference between the two is the
degree of harm caused; the mode and subject of the harms stayed the
same. Thus, if the Armstead holding was intended to apply to the entire
statute in place at that time—including paragraph (b)(2)—it also applies to
paragraph (b)(3) of the current statute.
To be clear, we reiterate that the specific facts of Armstead dealt only
with injuries suffered by arresting officers, including a broken nose
sustained by one of the arresting officers, but the State fails to consider
that the statutory paragraph assessed in Armstead did not itself limit the
felony enhancement to serious bodily injuries sustained by police officers.
Rather, that portion served to enhance the offense of resisting law
enforcement “if, while committing [the offense], the person operate[d] a
vehicle in a manner that cause[d] serious bodily injury to another person.”
The critical language—“another person”—left open the possibility that
serious bodily injury incurred by innocent by-standers could be the basis
for a felony enhancement of a resisting law enforcement charge.
Meanwhile, the portion of the statute that served to enhance Paquette’s
conviction shares the “other person” language that existed in the very
paragraph the Armstead court considered. Accordingly, we cannot agree
with the State that Armstead is inapplicable or that the Court of Appeals’
reliance on its own holding was entirely misplaced.
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II. Indiana Code section 35-44.1-3-1 permits only one
conviction for each act of resisting.
Turning to the heart of the issue, we find that the resisting law
enforcement statute, as written, was intended to permit only one
conviction for each act of resisting, even where multiple deaths are caused
by use of a vehicle.
While the Armstead decision is not inapplicable, it does not fully resolve
the issue before us. The Armstead court was silent on whether subsection
(b) creates a new and independent offense; it dealt only with a single
offense under subsection (b). The present case, on the other hand,
involves a claim that each death constitutes a new and independent
offense, totaling three offenses under the same subsection. Nonetheless,
we agree that the Armstead decision is helpful, and we find that it serves as
a starting point to analyze the legislature’s intent.
Throughout the Armstead opinion, the Court of Appeals referred to
separate and discrete incidents that may be the basis for a conviction. To
the extent that the Court of Appeals sought to highlight the separate and
distinct incidents outlined in subsection (a), we find they were correct.
Any of the several acts in subsection (a) constitute a separate offense of
resisting law enforcement, and when more than one of those incidents
occurs, we may uphold multiple resisting law enforcement convictions.
Conversely, a single discrete incident can be the basis for only one
conviction, no matter how many individuals are harmed. This is because,
as the Armstead court noted, “a person who violates [the statute] harms the
peace and dignity of the State of Indiana and its law enforcement
authority.” Armstead, N.E.2d at 401. We agree with the Armstead panel
that resisting law enforcement is inherently an offense against authority,
not the individual officers. So, whether a defendant resists one officer or
twenty-five officers, the offense remains the same.
The above principle applies equally when dealing with an offense
under subsection (b). We find that an offense committed under subsection
(b) continues to be a harm against the peace and dignity of the State
because the offender is, at his core, still resisting law enforcement. As
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written, no new or independent offense is created when subsection (b) is
invoked. Rather, subsection (b) enhances the degree of the offenses
outlined in subsection (a). In other words, it merely moves the needle in
terms of gravity. Thus, the offense that involves a single affray with
police will continue to be a single harm to the peace and dignity of the
State, regardless of how many other people are killed.
To be sure, we examine the statute’s structure and language. Several
features of the statute indicate that the legislature intended only to
increase the gravity of the offense, not to create an entirely new offense for
each individual injured or killed. First, we note that subsection (a)—
which outlines the three ways in which a person knowingly or
intentionally resists law enforcement—lays the foundation for the offense
in question. In relevant part, it prohibits a person from fleeing from law
enforcement where the officer has “by visible or audible means . . .
identified himself . . . and ordered the person to stop.” Ind. Code § 35-
44.1-3-1(a)(3). Without this first subsection, the subsequent subsections
outlined in the statute could not stand.
Second, the legislature’s deliberate use of cross-referencing between
subsections (a) and (b) bolsters our reading of the statute. Notably,
subsection (a) states that each paragraph violated is deemed a Class A
misdemeanor, “except as provided in subsection (b).” Ind. Code § 35-44.1-
3-1(a). Subsection (b), then references back to subsection (a), noting that
“[t]he offense under subsection (a)” can become a felony or felonies of
varying levels, depending on certain factors. Ind. Code § 35-44.1-3-1(b).
The deliberate manner of cross-referencing between subsections (a) and
(b) indicates that, rather than a separate offense, the legislature intended
subsection (b) to be an enhancement that stems from the foundation
outlined in subsection (a).
Finally, while the use of the word “or” following paragraph (2) of
subsection (a) makes clear that each paragraph in that subsection was
intended to be a separate and distinct offense, the legislature chose to
structure subsection (b) differently. It drafted the various paragraphs in
the conjunctive, using the word “and” following paragraph (3). This
indicates that the legislature aimed to accomplish something different
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with subsection (b). We think that the only logical reading of the statute is
that the legislature intended the various paragraphs of subsection (b) to
serve as enhancements of a single offense stemming from subsection (a).
For good measure, we compare Indiana Code section 35-44.1-3-1 to
other statutes, which we find further supports our reading of the statute.
Specifically, we analyze statutes where our legislature has expressly
allowed convictions for each death caused by a single act. Indiana Code
section 9-30-5-5, for example, addresses operating a vehicle while
intoxicated and authorizes multiple convictions when multiple deaths
occur. But its structure differs greatly from the resisting law enforcement
statute at issue here. For starters, it makes operating a vehicle “while
intoxicated” a stand-alone crime when it “causes the death of another
person.” Ind. Code § 9-30-5-5(a)(3). Subsection (e) goes on to expressly
allow multiple convictions if multiple deaths occur; it provides that a
person who violates the statute “commits a separate offense for each
[victim] whose death is caused by the violation[.]” Moreover, we glean
the legislature’s intent to allow multiple convictions from the fact that the
General Assembly added the provision in subsection (e) after we
summarily affirmed the Court of Appeals’ holding, which allowed only
one conviction for one violation of the operating while intoxicated statute.
P.L. 53-1994, § 6. We agreed with the Court of Appeals that, without
express authorization, multiple convictions arising from a single incident
could not stand, even if multiple deaths occurred.
Similarly, Indiana Code section 35-43-1-1, a statute making arson
unlawful, proves instructive here. Subsection (a) of that statute outlines
the various ways a person may commit arson and then enhances the
underlying arson offense if “it results in serious bodily injury.” We held
in Mathews v. State, 849 N.E.2d 578 (Ind. 2006) that the version of the
statute in place at the time allowed only one arson conviction, regardless
of the number of people injured. There too, the General Assembly added
a provision to the statute in response to our decision. While the current
version of the arson statute neglects to make arson resulting in serious
bodily injury a stand-alone offense, it explicitly allows separate
convictions “for each person who suffers a . . . serious bodily injury that is
caused by violation of subsection (a) . . . .” Ind. Code § 35-43-1-1(e).
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Unlike the arson and operating a vehicle while intoxicated statutes, the
resisting law enforcement statute is silent on multiple convictions when
multiple deaths occur.
Ultimately, we find unpersuasive the State’s contention that the
legislature intended to create an independent criminal offense for each
person killed when a defendant resists law enforcement using a vehicle.
Nothing about the structure or language of the statute creates a new or
independent offense and our inquiry into other similar statutes confirms
our reading of Indiana Code section 35-44.1-3-1. Our legislature is aware
that multiple convictions for multiple harms caused by a single violation
require explicit authorization and we trust that they would have done so
if that was their intent.
Since our legislature has drafted the resisting law enforcement statute
without such explicit authorization and has otherwise remained silent, we
glean its intent to allow only one resisting law enforcement conviction for
each act of resisting. Subsection (b) merely enhances the underlying
offenses in subsection (a), thus the number of resulting deaths does not
affect the number of convictions allowed—only one is permissible. To
find otherwise would require us to engraft language into a statute, which
we have repeatedly said we may not do. See Indiana Alcohol & Tobacco
Comm’n v. Spirited Sales, LLC, 79 N.E.3d 371, 376 (Ind. 2017) (“We may not
add new words to a statute which are not the expressed intent of the
legislature”); see also Kitchell v. Franklin, 997 N.E.2d 1020, 1026 (Ind. 2013)
(“Further, [c]ourts may not engraft new words onto a statute or add
restrictions where none exist”) (internal citations and quotation omitted).
Accordingly, we find that Paquette could not be convicted of multiple
resisting law enforcement charges stemming from a single act of resisting.
Conclusion
We find that Paquette could not be convicted of more than one felony
resisting law enforcement charge where multiple deaths occurred from a
single act of resisting. Because our decision is premised on the statute, we
need not conduct a double-jeopardy analysis. Our resisting law
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enforcement statute does not create a new offense for each death that
occurs. Instead, it enhances the underlying resisting law enforcement
conviction’s degree in circumstances where the offense is committed using
a vehicle in a manner that causes another person’s death. Without explicit
authorization for multiple convictions arising out of the same act, we
cannot find that Paquette’s three felony resisting law enforcement
convictions can stand. Accordingly, we reverse the trial court as to two of
the three convictions for felony resisting law enforcement. Since one of
Paquette’s other offenses allows for multiple convictions based on a single
act of operating a vehicle, we remand for the trial court to enter
convictions under that statute for all victims and instruct the trial court to
sentence accordingly.
Rush, C.J., and Massa, Slaughter, and Goff, JJ., concur.
ATTORNEYS FOR APPELLANT
Mark A. Bates
Schererville, Indiana
Thomas W. Vanes
Merrillville, Indiana
ATTORNEYS FOR APPELLEE
Curtis T. Hill, Jr.
Attorney General of Indiana
Andrew J. Kobe
Tyler G. Banks
Deputy Attorneys General
Indianapolis, Indiana
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