Isom v. State

• Decision Date: 11 June 1985
• Docket Number: No. 4-884A236,4-884A236
• Citation: 479 N.E.2d 61
• Parties: David J. ISOM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 61

479 N.E.2d 61

David J. ISOM, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 4-884A236.

Court of Appeals of Indiana Fourth District.

June 11, 1985.

Mark S. Fraundorfer, Public Defender, Anderson, for appellant.

Linley E. Pearson, Atty. Gen., Lisa M. Paunicka, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Presiding Judge.

After failing a breathalyzer test administered at the Chesterfield, Indiana, police station, David Isom, defendant-appellant, was arrested for drunk driving and placed into a police car for transport to the Madison County Jail, accompanied by two officers of the Chesterfield Police Department. While the police vehicle was stopped at a traffic signal near the jailhouse, Isom opened the car door and fled from the officers. One of the officers caught up with Isom but was overpowered and injured by him, allowing Isom to escape. Isom was discovered four days later at Fort Sill, Oklahoma, and he eventually was returned to Madison County for trial on charges of escape resulting in bodily injury, a Class C felony, IND.CODE Sec. 35-44-3-5 (1982), and battery of a law enforcement officer, a Class A misdemeanor, id. Sec. 35-42-2-1(1). Following his conviction by jury on both charges, Isom was given concurrent sentences of five years on the Class C felony and one year on the Class A misdemeanor. He now brings this appeal, raising the following issues:

I. Whether the trial court erred in denying Isom's motion for a directed verdict on the Class C felony escape charge?

II. Whether the trial court erred in denying Isom's motion for a mistrial based on the alleged introduction of evidence of other criminal activity?

III. Whether Isom was denied a fair trial because of allegedly improper comments made by the prosecutor during final argument?

IV. Whether the trial court erred by imposing an excessive executed sentence of five years for Class C felony escape?

V. Whether the trial court erred in entering sentence based on a pre-sentence investigation report that failed to include statutorily required information?

Inasmuch as the state admits error with respect to Issue V, requiring that this case be remanded for further sentencing proceedings, we shall not address Issue IV. In all other respects, the trial court is affirmed. The facts relevant to each issue will be related where appropriate.

I.

At about 1:30 on the morning of January 6, 1983, Chesterfield Police Department Officer Robert Bennett and Reserve Officer Dennis O'Dell were patrolling Old State Road 67 in Madison County, Indiana, near the town of Chesterfield. They observed an automobile driven by David Isom cross the center line of the highway at least three times and pulled the vehicle to the side of the road on suspicion that the driver was operating a motor vehicle while intoxicated. Officer Bennett asked Isom for his driver's license, but Isom was able to produce only a paper indicating his license was suspended. Isom also produced a military identification and a document showing he was on authorized leave from the army base at Fort Sill, Oklahoma. Officer Bennett detected the odor of alcohol and Isom's bloodshot eyes and asked Isom to step from his vehicle to perform two field sobriety tests, which he failed. Isom consented to take a breathalyzer test and was taken in the patrol car to the Chesterfield police station where Officer Bennett administered the test. The results showed that Isom's blood-alcohol content was over .10%, and he was arrested for driving while intoxicated.

Isom became angry and abusive upon his arrest but agreed not to cause any trouble if the officers would not handcuff him. Officer Bennett agreed, and Isom was placed in the front passenger seat of the patrol car for transport to the Madison County Jail in Anderson, Indiana. Officer Bennett drove the vehicle and Officer O'Dell rode in the back seat behind Isom.

As the police vehicle approached the front entrance of the jail, which is not where prisoners are taken for processing and lockup, Isom opened the car door and began to step out. Officer Bennett ordered him back into the car, and Officer O'Dell got out of the back seat to push Isom back into the vehicle while Officer Bennett pulled him back in from the inside. Officer Bennett proceeded to drive around the block toward the lock-up entrance to the jail, but when he stopped at a red light, Isom opened the door and fled down the street.

Officer O'Dell jumped out of the back seat and pursued Isom on foot while Officer Bennett drove his patrol car in the direction Isom was running. When Isom ran across the street and tripped and fell on the curb on the other side, Officer Bennett was able to stop the car, get out, and catch up to him where he lay. Officer Bennett got on top of Isom, but Isom threw him off, got on top of Bennett and twice banged the officer's head on the sidewalk, breaking Bennett's glasses. The scuffle continued until Isom got up off of Officer Bennett and ran back across the street toward the patrol car and Officer O'Dell. Officer Bennett caught up with Isom again, grabbed him by the arm, and yelled to Officer O'Dell for assistance. Bennett was "in a groggy state" (R. 286), and Isom was able to pull free from his grasp, shove him down on one knee and again flee the two officers. They got back into the patrol car and summoned assistance from the Anderson Police Department in their search for Isom, which proved fruitless.

Officer Bennett later went to a hospital emergency room where he was treated for contusions and abrasions on his face and lacerations of the knuckles of his hand. Isom was discovered on January 10, 1983, back at Fort Sill, Oklahoma, to which he had returned from leave. Isom was later extradicted for trial on charges of Class C felony escape and Class A misdemeanor battery. ¹

The above statement of facts summarizes the relevant evidence presented in the state's case-in-chief, at the conclusion of which Isom moved for a directed verdict, ² see Ind.Rules of Procedure, Trial Rule 50(A)(1), on the ground that the evidence showed the bodily injury was inflicted on Officer Bennett only after Isom's escape was completed and that the intent of the escape statute, IC 35-44-3-5, is to make escape a Class C felony only when bodily injury is inflicted during the actual escape or the events leading up to the escape. Because he had momentarily gained his freedom at the time of the injury to Officer Bennett, Isom argued, the escape was complete at that time, and the bodily injury was not inflicted while committing it, as required by the escape statute, which states:

"A person who intentionally flees from lawful detention or intentionally fails to return to lawful detention following temporary leave granted for a specified purpose or limited period commits escape, a Class D felony. However, the offense is a Class C felony if, while committing it, the person draws or uses a deadly weapon or inflicts bodily injury on another person."

IC 35-44-3-5.

As our supreme court has stated, in reviewing the denial of a criminal defendant's motion under Trial Rule 50, we will reverse only where "there is a total absence of evidence on some essential issue required to convict, or where the evidence is without conflict and susceptible of but one inference, that being in favor of the accused." Lonson v. State (1980), 273 Ind. 581, 406 N.E.2d 256, 259.

We disagree with Isom's position that one of the essential elements required to convict a defendant of Class C felony escape is a showing that the bodily injury was inflicted at the time the defendant gains his momentary freedom or during the events leading up to that point, i.e., while he remains under lawful detention. ³ The crime of escape is committed when a person "intentionally flees from lawful detention," IC 35-44-3-5. For purposes of this case, the crime is elevated from a Class D to a Class C felony "if, while committing it, the person ... inflicts bodily injury on another person." Id. The phrase "while committing it" obviously refers to the basic Class D felony escape, i.e., "while intentionally fleeing from lawful detention." Thus, in order to overcome a defendant's motion for directed verdict in a prosecution for Class C felony escape involving bodily injury, the state must present some evidence that the defendant: (1) intentionally fled; (2) from lawful detention; (3) and while fleeing from such detention, inflicted bodily injury on another person.

Indiana Code section 35-41-1-2 (1982) ⁴ defines "lawful detention" as "arrest ... or custody for purposes incident to [arrest] including transportation ... or any other detention for law enforcement purposes...." Thus, the evidence that showed that Isom was in the police vehicle with Officers Bennett and O'Dell for the purpose of being transported from the Chesterfield police station to the Madison County Jail following his arrest for drunk driving showed that Isom was under lawful detention when he opened the car door and ran down the street. Obviously, at that point, Isom was "fleeing" from such lawful detention, with Officers Bennett and O'Dell in hot pursuit. Isom was still in the process of fleeing when Officer Bennett caught up to him and was pummelled by Isom, sustaining lacerations to his face and hand constituting "bodily injury." ⁵ In short, the state presented some evidence that Isom was under lawful detention, that he fled from it, and that, while fleeing, he inflicted bodily injury on Officer Bennett. Thus, there was evidence on every essential issue required to convict Isom of Class C felony escape, and the trial court did not err in overruling Isom's motion for directed verdict. See Lonson v. State, supra.

II.

Isom next alleges the trial court erred in overruling his motion for a mistrial based on the alleged introduction of evidence of other criminal activity on Isom's part. The record shows that Isom made a pre-trial...