Hebner v. State

• Decision Date: 31 July 2012
• Docket Number: No. 89A04–1111–CR–605.,89A04–1111–CR–605.
• Citation: 971 N.E.2d 1275
• Parties: James L. HEBNER, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

971 N.E.2d 1275

James L. HEBNER, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 89A04–1111–CR–605.

Court of Appeals of Indiana.

July 31, 2012.

Appeal from the Wayne Superior Court; The Honorable Charles K. Todd, Jr., Judge; Cause No. 89D01–0907–FC–18.

J. Clayton Miller, Jordan Law, LLC, Richmond, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Nicole M. Schuster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

MEMORANDUM DECISION—NOT FOR PUBLICATION

BROWN, Judge.

James L. Hebner appeals his three convictions for resisting law enforcement, one as a class D felony and two as class A misdemeanors .¹ Hebner raises three issues, which we revise and restate as:

I. Whether the evidence is sufficient to support Hebner's conviction for resisting law enforcement as a class D felony; and

II. Whether one or more of Hebner's convictions for resisting law enforcement violate Indiana's prohibition against double jeopardy or the continuing crime doctrine.

We affirm in part and reverse in part.

The relevant facts follow. At approximately 12:15 a.m. on July 14, 2009, Richmond Police Officers Ami Miller and Robert Lipps were dispatched to the location of an apartment in Richmond, Indiana, and had information of a possible party involving juveniles smoking marijuana and that one of the residents of the apartment, Hebner, had an outstanding arrest warrant.

Officers Miller and Lipps arrived at the apartment, which was an upstairs unit in a multi-unit building, knocked loudly on the door, and announced that they were police officers. As the officers turned away to walk down the stairs, Officer Lipps observed Hebner “open the door, peek out, [see] that [he] was a police officer and then slam[ ] the door,” and the officers returned to the apartment and continued to knock. Transcript at 234. Hebner did not answer. At some point, a man exited another apartment unit and stated that his brother Hebner lived at the apartment to which the officers were dispatched. The officers contacted the property owner and made arrangements for the owner to bring a key to the building, and the officers waited for the person to arrive. Also, other officers, including Officers Michelle Kircher and David Glover, set up a perimeter around the building.

Officer Kircher, who stood on the north side of the building and watched the windows, observed a man matching Hebner's description run or sprint from an alley next to the building, radioed that information to dispatch and the other officers, and then pursued Hebner on foot. Officer Kircher shouted verbal commands for Hebner to stop and identified herself as a police officer, Hebner did not comply, and Officer Kircher eventually lost sight of Hebner. Officer Glover walked up the street shining his flashlight through the houses to check to see if he could see anyone between the houses. Officer Glover observed Hebner hiding behind a bush on the corner of a garage, and Hebner looked in Officer Glover's direction and then “took off running.” Id. at 212. Officer Glover shouted the command of “stop, police” and advised other officers of his location. Id. Officer Glover pursued Hebner, Hebner jumped over a fence, and Officer Glover, when he was within approximately fifteen feet of Hebner, discharged his Taser which caused Hebner, who was wearing only blue jeans, to fall to the ground. Other officers arrived to assist Officer Glover, and Hebner was placed under arrest on his outstanding warrant and for fleeing law enforcement and transported to a hospital for a medical evaluation pursuant to standard department procedure after a Taser is deployed. At the hospital, Hebner's demeanor was quiet and cooperative. Hebner asked Officer Kircher to loosen his handcuffs, and, after Captain Thomas Porfidio approved, Officer Kircher loosened the handcuff on one of Hebner's wrists. Hebner was examined and released from the hospital, and officers prepared to transport Hebner to jail.

As they exited the hospital, Officer Lipps walked in front of Hebner, Officer Kircher walked with Hebner, and Captain Porfidio walked several feet behind Officer Kircher. At a point when Officer Lipps was at the door of the hospital and exiting into the parking lot, Hebner slipped his right hand out of the handcuffs, shoved past Officer Lipps, and ran out the door. Officers ordered Hebner to stop, and Officer Kircher pulled out her Taser and deployed it in an attempt to stop Hebner but missed. Hebner continued down a very steep hill, falling and rolling to a sidewalk at the bottom, and then ran into a wooded area, and Officers Lipps and Kircher pursued Hebner. The officers commanded Hebner to stop, but Hebner did not comply and “was sprinting as fast as he could sprint.” Id. at 266. The officers followed Hebner into the woods, where their radios were not working and there was little or no light, and determined Hebner's location by his “feet breaking twigs, stepping on leaves, [and his] body falling down every ten seconds.” Id. at 265.

At a point when he was about ten to fifteen feet away from Hebner, Officer Lipps observed Hebner attempting to climb a tree and approximately five to ten feet off of the ground in the tree. Officer Lipps ordered Hebner to stop and come down, and Hebner jumped out of the tree, landed on the ground, turned away from Officer Lipps and “was in [ ] what you would call the runner's position—a crouch position getting ready to run.” Id. at 269. Officer Lipps then stated Hebner: “stop, police, turn around, show me your hands,” and Hebner began to run. Id. Officer Lipps, who was approximately ten to twelve feet away from Hebner, then deployed his Taser, which had some effect on Hebner because Officer Lipps observed Hebner's “body lock up for just a second.” Id. at 271. Officer Lipps ran toward Hebner to grab his hands to try to re-handcuff him, but Hebner turned around, shoved Officer Lipps, and “started to throw punches at” Officer Lipps. Id. The altercation between Hebner and Officer Lipps “went on for several minutes,” and Hebner “was doing everything he could to get away from [Officer Lipps] and [Officer Lipps] was doing everything [he] could to keep [Hebner] in custody.” Id. at 273. Hebner “landed several blows on [Officer Lipps's] upper body and ... a couple in [his] neck and ... chin,” and Hebner spat on Officer Lipps. Id. at 274.

Officer Lipps was eventually able to knock Hebner off balance, place Hebner on the ground, and place Hebner's hands behind his back when Officer Kircher arrived to assist him in handcuffing Hebner. Hebner was “flailing” and “just swinging and kicking and trying to get away.” Id. at 350. Officer Kircher attempted to assist Officer Lipps with gaining control of Hebner, and Hebner struck Officer Kircher, who was kneeling on the ground, as he struggled. When Officers Lipps and Kircher placed Hebner on his feet to exit the woods, Hebner was uncooperative and let his body “go limp” so that he “wouldn't walk out of the woods on his own power,” and the officers “had to pick him up and then push him forward to get him out of the woods.” Id. at 279. About half way out of the woods, Captain Porfidio arrived and assisted Officer Lipps with escorting Hebner out of the woods while Officer Kircher used her flashlight to light the way. The officers eventually returned with Hebner to the hospital's emergency room. Officer Kircher was also admitted to the hospital due to a knee injury.

On July 14, 2009, the State charged Hebner with Count I, escape as a class C felony; Count II, battery by bodily waste as a class D felony; Count III, resisting law enforcement as a class D felony; Count IV, resisting law enforcement as a class A misdemeanor; and Count V, resisting law enforcement as a class A misdemeanor. A jury found Hebner guilty on all five counts. The court sentenced Hebner to six years and one hundred eighty days under Count I, two years each under Counts II and III, and one year each under Counts IV and V, with all sentences to be served concurrently.

I.

The first issue is whether the evidence is sufficient to sustain Hebner's conviction for resisting law enforcement as a class D felony under Count III. When reviewing the claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003). We look only to the probative evidence supporting the verdict and the reasonable inferences therein to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id.

Ind.Code 35–44–3–3(a) provided at the time of the offense that “[a] person who knowingly or intentionally ... 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 the officer's duties ... commits resisting law enforcement, a Class A misdemeanor....” Ind.Code § 35–44–3–3(b) provided that the offense is a class D felony if “while committing any offense described in subsection (a), the person draws or uses a deadly weapon, inflicts bodily injury on or otherwise causes bodily injury to another person, or operates a vehicle in a manner that creates a substantial risk of bodily injury to another person....” In Count III, the State alleged that Hebner “did knowingly or intentionally forcibly resist, obstruct, and/or interfere with Michelle Kircher, a law enforcement officer with the Richmond Police Department, to wit: fought and/or struggled with Officer Kircher, while said officer was lawfully engaged in her duties as a law enforcement officer, to-wit: attempting to restrain and/or arrest ... Hebner, said acts resulting in bodily injury to Officer Kircher, to-wit: injured knee and/or physical pain, contrary to Indiana law.”...