MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 24 2017, 9:18 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
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
Barbara J. Simmons Curtis T. Hill, Jr.
Oldenburg, Indiana Attorney General of Indiana
Matthew B. Mackenzie
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Willie Dixon, April 24, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1606-CR-1400
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven Rubick,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G07-1511-CM-40734
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 49A1606-CR-1400 | April 24, 2017 Page 1 of 5
Case Summary
[1] Willie Dixon appeals his conviction for resisting law enforcement, challenging
the sufficiency of the State’s evidence. We affirm.
Facts and Procedural History
[2] On the night of November 16, 2015, Indianapolis Metropolitan Police
Department Officer Babacar Diouf responded to a report of a man (Dixon)
pushing a lawnmower down the middle of Kessler Boulevard East Drive just
west of Binford Boulevard, a busy stretch of road in northeast Indianapolis.
Officer Diouf pulled his car alongside Dixon and spoke with him, telling him
that “he was putting his life in danger, also putting other motorists in danger as
well for being in the middle of the road.” Tr. p. 5. Officer Diouf asked Dixon
to walk on the side of the road, and while Dixon initially took the position that
walking down the middle was actually safer because of curves in the road, he
eventually agreed to stay on the side (there were no sidewalks along the relevant
section of road).
[3] After Officer Diouf helped Dixon through an intersection, however, he saw that
Dixon had returned to walking in the middle of the road. This prompted
Officer Diouf to approach Dixon with his lights on and give him a “clear
command” to be on the side of the road. Id. at 6. Instead, Dixon “took off,”
“[r]unning, pushing the mower in the middle of the road.” Id. at 6-7. Officer
Diouf “advised him to stop,” id. at 7, but Dixon kept running. Officer Diouf
Court of Appeals of Indiana | Memorandum Decision 49A1606-CR-1400 | April 24, 2017 Page 2 of 5
then pulled his car in front of Dixon “to try and cut him off.” Id. Dixon
stopped momentarily before running around the car and continuing down the
road. Officer Diouf followed Dixon on foot and told him he would be tased if
he did not stop. Hearing this, Dixon stopped, and Officer Diouf arrested him.
[4] The State charged Dixon with resisting law enforcement by fleeing as a Class A
misdemeanor. After a bench trial at which Officer Diouf and then Dixon
offered their versions of events, the trial court found Dixon guilty as charged
and sentenced him to the time he had already served.
[5] Dixon now appeals.
Discussion and Decision
[6] Dixon challenges the sufficiency of the evidence supporting his conviction. In
considering such a claim, we consider only the probative evidence and
reasonable inferences supporting the conviction. Wilson v. State, 39 N.E.3d 705,
716 (Ind. Ct. App. 2015), trans. denied. We do not reweigh the evidence or
assess witness credibility. Id. We consider conflicting evidence most favorably
to the conviction. Id. We will affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a reasonable doubt.
Id. It is not necessary that the evidence overcome every reasonable hypothesis
of innocence. Id. The evidence is sufficient if an inference may reasonably be
drawn from it to support the judgment. Id.
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[7] In order to convict Dixon of resisting law enforcement by fleeing as a Class A
misdemeanor, the State was required to prove beyond a reasonable doubt that
Dixon knowingly or intentionally fled from Officer Diouf after Officer Diouf,
by visible or audible means, including operation of his siren or emergency
lights, identified himself and ordered Dixon to stop. See Ind. Code § 35-44.1-3-
1(a)(3). Dixon argues that “he did not hear Officer Diouf order him to stop”
and that, even if he had, he had “no duty to stop” because “he had done
nothing wrong[.]” Appellant’s Br. pp. 11, 14. We address each argument in
turn.
[8] There are two problems with Dixon’s claim that he did not hear Officer Diouf
order him to stop. First, in light of Officer Diouf’s testimony that he “advised
[Dixon] to stop,” Dixon’s claim is a request for us to reweigh the evidence,
which we will not do. See Wilson, 39 N.E.3d at 716. Second, even if we were
to assume that Dixon did not hear Officer Diouf’s order, it is undisputed that
Officer Diouf then pulled his car in front of Dixon “to try and cut him off.” Tr.
p. 7. This, alone, constituted an order to stop under the resisting statute, which
provides that such an order can be given “by visible or audible means.” I.C. §
35-44.1-3-1(a)(3) (emphasis added).
[9] Dixon’s argument that he had “no duty to stop” relates to our Supreme Court’s
decision in Gaddie v. State, 10 N.E.3d 1249 (Ind. 2014). There, the Court held
that even though the text of the resisting-by-fleeing statute does not include a
requirement that the order to stop be lawful, the statute must be construed as
such “[t]o avoid conflict with the Fourth Amendment.” Id. at 1256. In other
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words, the statute must be “understood to require that such order to stop rest on
probable cause or reasonable suspicion, that is, specific, articulable facts that
would lead the officer to reasonably suspect that criminal activity is afoot.” Id.
at 1255. Seizing on the term “criminal activity,” Dixon contends that Officer
Diouf’s order to stop was not lawful because Dixon had at most committed a
“traffic infraction” under Indiana Code section 9-21-17-14, which requires a
pedestrian walking on a road to keep to the side. What Dixon fails to
acknowledge, however, is that a police officer’s observation of a traffic violation
provides the requisite probable cause or reasonable suspicion to justify a stop.
State v. Keck, 4 N.E.3d 1180, 1184 (Ind. 2014). In short, “criminal activity,” for
purposes of Gaddie, includes traffic infractions. Given the fact that Dixon was
violating Section 9-21-17-14, his argument that he did not have a duty to stop
when Officer Diouf ordered him to do so necessarily fails.
[10] Affirmed.
Bradford, J., and Brown, J., concur.
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Willie Dixon v. State of Indiana (mem. dec.)
Combined Opinion