*1 (thе existence Ind.App., N.E.2d 1196 law). question of duty is a officers, in their acting while responded capacities, to a call
official personnel at Frederick from the assistance apprised of the situa- They were House. Pajor’s into bedroom. They tion. went in his At their lying bed. They found partially dressed. request got the room a to leave When he was about in- police officers were scuffle ensued that would any evidence jured. Absent part of Tri- demonstrate conduct exception to the City that would invoke Rule, the facts of we find Fireman’s to invoke the Fire- partiсularly suited case therefore, We, affirm the trial Rule. man’s judgment. court’s Affirmed. STATON, J.,
HOFFMAN, P.J., and concur. O’CONNOR, Appellant-
Defendant, Indiana, Appellee-Plaintiff. STATE No. 55A01-9111-CR-334. Indiana, Appeals Court First District. April
ing felony,1 D law a Class intoxicated, operating a vehicle while misdemeanor,2 resisting en- Class A forcement, misdemeanor,3 A a Class and infrаctions. O’Connor was sen- several years’ imprisonment for the tenced to three suspended, felony, years with two and one year imprisonment for each of the misde- meanors, consecutively, for an to be served years’ aggregate imprisonment of five suspended. appеals now convic- O’Connor tion, deny- arguing the trial court erred in ing his motion for appeals He also the trial court's dence. sentencing presen- order and report tence used was bi- ased
FACTS jury’s
The evidence most favorable to the Police reveals Martinsville verdict headlights off Jon Davis saw a car with its alley pulling out of an onto a Martinsville p.m. April approximately at 10:30 street car, driving the 1991. O’Connor was street, he turned pulled as he onto the and distance, lights, a short turned corner, pulled lights, off the turned had the side of the street. There over to neighborhoоd burglaries been some recently, Davis followed O’Con- so Officer why determine nor around the corner to acting strangely. As Offi- O’Connor was corner, cer Davis turned the O’Connor lights pulled back again turned on his time, At into the traffic lane. stop and turned Davis decided to O’Connor flashing lights, top Lauer, Martinsville, searchlight, Gregory ap- on his T. over, began pull lights. but O’Connor pellant-defendant. away; pursued. sped then Officer Davis Pearson, Gen., Linley Atty. Richard E. C. Gen., Webster, Deputy Atty. Indianapolis, for assistance and Davis radioed appellee-plaintiff. chase, cutting joined Dan Riffel and Officer Davis at between O’Connor BAKER, Judge. through raced an intersection. O’Connor Martinsville, driving around trial, defendant-appellant the streets After roadblocks, stop through stop signs and was convicted of resist- 35-44-3-3(a)(3). 35-44-3-3(a)(l), (b)(1). 3.IND.CODE (repealed, now IND. IND.CODE 9-11-2-2 9-30-5-2). CODE (1) forcibly resists, obstructs, cutting through or inter- lights, and residential feres with a law enforcement or a yards speeds upwards of 60 miles person assisting the officer while the of- Eventually, led the Offi- hour. lawfully engaged ficer is in the execution Road cers east out of Martinsville officer; of his duties as an stop light at through Just before where pass pushed off the roаd. abandoned his car and moved into the center of the Road 87. As of the down or Riffel tried on at least three occasions diately behind Officer O’Connor speeds up O’Connor on chase, Officers Riffel stop him. Each turned onto Nast encountering a Officer Davis to 80 miles *3 they either Riffеl and Davis the left and slow him Throughout ran off into the to fall back or be Riffel. on remained imme- time, State roadblock, hour, Chapel road, forcing O’Connor Road this Road. hills, part ap- he to person to bodily injury to another in subsection manner commits (3) after (1) (b) means, identified Class flees from law enforcement officer DClass The offense under subsection person jfc A that creates a substantial risk of misdemeanor, except officer resisting stop; [*] ... (b). a has, by operates a himself # if, while visible or audible [*] person.... committing vehicle ordered as ¡jí provided (a) in a is а: [*] it, a him Addi- prehended after a brief chase. charged I Specifically, Count O’Connor un- supplied necessary. tional facts will be (a)(1), (b)(1), alleging: der subsection the 16th Douglas O’Connor or about AND DECISION DISCUSSION County day April, at and in the Morgan and State of Indiana did I knowingly forcibly resist a law en- first O’Connor to-wit: Jon forcement judg denying court erred in his motion for [sic], Jon Martinsville Police Office while I. A mo ment on the evidence on Count lawfully engaged in his duties Davis was tion for on the evidence should officer and in com- as a law enforcement granted only if “there is a total lack of be act, oper- mitting said O’Connor guilt as to the of the accused or evidence in a that it ated a vehicle such manner in the evidence where there is no conflict bodily injury a risk of created substantial susceptible only and it is to an inference Riffel, attempting to to Dan to-wit: of the accused.” v. Stаte favor Watkins operating his Dan who force Riffel (1988),Ind., A N.E.2d 460. motion roadway. police vehicle off judgment on the evidence will not be added). (emphasis O’Connor at 3 Record prima if a granted the State has shown arguments attacking the now makes two (1984), Ind., case. Carter facie sufficiеncy case. State’s review, Upon we look at First, argues there was O’Connor judgment on the the denial of a motion for resisted, forcibly obstruct no evidence challenges all to the evidence as we do ap ed, police efforts to or interfered with evidence; sufficiency we neither re Whether prehend him. He is mistaken. credibili weigh evidence nor witness question for the used is a has been force Watkins, ty. supra. Ind., e.g., Taylor v. State jury. See case, the infor- present Count of Here, at least D fel- charged with Class mation O’Connor occasions, attemptеd to three under IND. ony resisting law enforcement passing Riffel from prevent Officer 35-44-3-3, provides perti- CODE which he drove Riffel as veering towards part: nent only Not up next to O’Connor. go jury, but we to to the (a) knowingly or evidence person A who sufficient Sec. 3. say that use of force to quite prepared intentionally: are charged delivery shows that a counts of of a is established when high speed attempted push to driver has IV under Schedule controlled substance road. 35-48-1-11(1). off the A found guilty Simmons on both counts. We re- argument, O’Connor’s second versed conviction on Count II because hand, to the State’s case. As is fatal supporting charge the evidence above, charging al noted information Instead, delivery. it show actual knowingly leged forcibly re possessed showed Simmons the controlled evidence of sisted Officer Davis. deliver, with the intent substance forсe, however, was the use of the car to (2) chargeable crime under subsection attempt push not Officer Gamblin Quoting IND.CODE 35-48-1-11. Davis, off The evidence adduced the road. (1991), Ind.App., supported charge that at trial would have *4 “ 1044-45, stated, jury may we not be ‘[a] Riffel, forcibly resisted Officer permitted to an guilty find the defendant of thereby creating a risk of bodi substantial by offense defined the statute which but (1989), v. Adams ly injury. Ind. See ” Id., charged.’ not was 585 N.E.2d at (evidence App., 542 1362 suffi N.E.2d was I, is 1344. So it here. In Count O’Connor bodily to cient show substantial risk charged forcibly resisting a with injury when defendant fled an officer charged He was еnforcement officer. speeds up m.p.h., stop signs, ran and to 80 fleeing a with law enforcement and line). alternative, In crossed the center the being he cannot convicted without be have supported the evidence would a charged. 35-44-3-3(a)(3), charge under IND. CODE (b)(1) fled that O’Connor еither Officer being support There to the no evidence in Davis or Officer Riffel a manner creat charged crime as in information on See ing bodily injury. a substantial risk of I, denying in Count trial court erred Adams, supra. O’Connor's motion however, State, attempt The not even dence. prove аgainst to O’Connor used force Offi- Davis,
cer
and the conviction and sentence
II
“A
on Count must therefore be vacated.
has the
ad-
right
criminal defendant
to be
Report
Presentence
vised of the nature and cause of the accu-
argues the
im-
O’Connor next
trial court
against
sation
him. There must be consist-
properly
presentence
a biased
considered
ency
allegations charged and
between the
report
gave
and
sentences
consecutive
adduced ...” Simmons v. State
proof
aggravating factors.
based on erroneous
(1992),
(ci-
Ind.App., 585 N.E.2d
1344
omitted).4
tation
probation
prepared
officer who
report
police
can-
was married to one of the
Simmons
also makes clear that we
in
not affirm the
conviction under sub-
officers who set
roadblocks
O’Con-
(a)(1)
merely
path.
section
the statute
because
recommended O’Connor
nor’s
She
a
supported
the evidence would have
receive the maximum sentence on each
(a)(3)
I, II,
III,
charge
and
trial
under subsection
of the stat- Counts
and
Simmons,
pronouncing
report
ute.
sen
defendant
considered
Indeed,
straight fleeing,
during closing argumеnt, the Prosecu-
about
that’s the act of run-
III,
compared
I with
which
ning
tor
charged
Count
Count
but in
case the
did more
this
defendant
Davis,
fleeing
O'Connor with
any
defendant without
[sic]
that
run ... [T]he
follows:
warning pulled
into the middle of the
over
talking
somebody that knew
We’re
about
put
does
road
what situation
they
dоing and
do
what
anything
were
knew he would
in,
got
split
to make
second
Riffel
decision,
he’s
a
getting
caught.
to avoid
Did he act
force,
is
act
is that an
that an
resist,
knowingly, yes. Did he
to
use
obstruct,
resist,
force
attempt
to
or
with
interfere
obstruct,
re-
or interfere
Riffel, you
it is.
bet
happened
mеmber
is different
from [sic]
added).
(emphasis
Record at 555-56
talking
in that
with Officer
Count we’re
probation
in the
offi
character
that he will
sees
and the risk
commit
tence. O’Connor
against
cer’s
status a bias
him another crime.” Id. at 545.
marital
unduly
which led to an
harsh sentence.
Moreover,
will
we
reverse a
(1984),
Relying
Ind.
on McMichael
sentence
statute
if
authorized
it is
App.,
correctly
manifestly
an
unreasonable and
abuse of
investigation
re
presentence
discretion.
Parker
Ind.
Beyond
port
proba
neutral.
should be
105;
App.,
Appellate
Ind.
Rule
status, however, he
tion
marital
оfficer’s
Here,
court relied on
several
show,
allege,
or even to
how
has failed to
proper
impose
factors to
the consecutive
was biased
probation officer
sentences, including
prior
O’Connor’s
con
agree
with O’Connor that
We
victions
need for
and O’Cоnnor’s
correc
assign
practice
better
have been to
would
tional or
treatment
rehabilitative
to be
probation
the case to a
not related
penal facility,
found
based
O’Con-
Nonetheless,
of the
officers.
one
comments,
nor’s
courtroom behavior
exists,
appellant
even
is not
if error
record,
his lies about his criminal
his
unless the error was
entitled
reversal
disdain
the law. This was
sufficient
(1989), Ind.,
prejudicial. Sharp v. State
aggravating
articulation
factors to
war
denied,
cert.
U.S.
the imposition
rant
of consecutive sen
*5
mediately behind Officer the cars Rehearing Denied June speeds reached to 80 miles hour. On the three occasions that Officer Riffel pass tried to O’Connor so as to slow him, stop down or O’Connormoved into the center of the road and forced Riffel to fall back behind him.
In my opinion, jury could have rea- sonably from concluded this evidence that
O’Connor’s use of force additionally Riffle interfered with Officer apprehend Davis’s efforts to words, reasоnably could have con-
cluded that each of the times O’Connor him,
forced Riffel to fall behind forcibly interfered with and re- sisted not Officer Riffel but also Offi- reason, cer Davis. For this and because prohibited by we are our standard of re- evidence, reweighing view from would affirm the trial court’s denial of
O’Connor’smotion for dence on Count I. majority
I concur with the issues. Judge
1. This case was transferred to this office order of the Chief on March