Miller v. State
| Decision Date | 31 March 2000 |
| Docket Number | No. 49A02-9904-CR-289.,49A02-9904-CR-289. |
| Citation | 726 N.E.2d 349 |
| Parties | Dayon MILLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Kathleen M. Sweeney, Kiefer & McGoff, Indianapolis, Indiana, Attorney for Appellant.
Jeffrey A. Modisett, Attorney General of Indiana, Randi E. Froug, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.
Dayon M. Miller was charged with three counts of attempted murder (Counts I, II and III); two counts of robbery (Counts IV and V); four counts of criminal confinement (Counts VI, VII, VIII and IX); one count of auto theft (Count X); and three counts of resisting law enforcement (Counts XI, XII and XIII). After a trial to the court, he was found guilty as charged on Counts IV through XIII, and guilty of three counts of criminal recklessness as to Counts I, II and III. On appeal Miller raises two issues, which we restate as:
1. Whether Miller was properly convicted of three counts of resisting law enforcement when all three counts arose from his actions while he was fleeing police after a bank robbery; and
2. Whether the trial court properly found Miller guilty of three counts of criminal recklessness as lesser included offenses of attempted murder.
Miller should have been convicted of only one count of resisting law enforcement. We thus reverse as to Miller's convictions of three counts of resisting law enforcement and remand for vacation of two of those three charges. We also reverse Miller's convictions of criminal recklessness as lesser included offenses of attempted murder. However, as we are unable to reach a consensus as to the proper further disposition of those charges, we respectfully request that our supreme court resolve this conundrum.1
Reversed and remanded in part, and affirmed in part.
On April 30, 1998, the People's Bank College Park branch in Indianapolis was robbed. Miller, wearing dark clothing and a black ski mask over a red bandanna that covered his nose and mouth, displayed a black handgun to the bank staff and demanded money. During the course of the robbery, Miller placed three bank employees in the vault. Robert Ware, a bank customer using the drive-up window, became suspicious, left his vehicle in the drive-up lane and entered the bank. Miller demanded Ware's wallet and ordered him into the vault. Miller fled with $10,145.00 of the bank's money and with Ware's wallet, which contained an additional $500.00.
Kevin Stickford, a Marion County Deputy Sheriff, heard a dispatch that the robbery was in progress and proceeded toward the bank. As he approached the branch, he saw a man jogging. The man was wearing dark clothing and a black ski mask, carrying a bag in his left hand and a gun in his right hand. Deputy Stickford was in uniform and driving a brown and tan unmarked police car. Deputy Stickford stopped his car, got out, told Miller he was a police officer and ordered Miller to drop his weapon. Miller looked at Deputy Stickford and ran away. Deputy Stickford shot at Miller and Miller fired back. Miller ran back to the bank, where he stole Ware's Cadillac and drove away with Deputy Stickford in pursuit. Several other police vehicles joined the chase, including an unmarked police vehicle driven by Detective Mark Hess of the Indianapolis Police Department and a Marion County Sheriff's vehicle driven by Deputy Ronald Knight.
After running two or three red lights at speeds in excess of 85 miles per hour, Miller abandoned the Cadillac and ran into a wooded area with Deputy Stickford in pursuit. Detective Hess, driving his police vehicle with red lights and siren activated, tried to cut Miller off, but Miller fired a gun at him. Detective Hess then joined Deputy Stickford in the foot pursuit of Miller. Detective Hess yelled several times at Miller "stop, police, drop the gun." (R. at 150.) Miller and the police exchanged gunfire on several more occasions.
Detective Hess and Deputy Stickford were joined in the foot pursuit by Deputy Knight. Miller fired at Deputy Knight several times. Miller also shot at Detective Hess again, hitting a tree in front of Hess and knocking some bark into Detective Hess' face. After being hit by several bullets, Miller finally fell to the ground. Detective Hess tried to handcuff him but he resisted. Deputy Stickford then assisted Detective Hess in handcuffing Miller.
In addition to the other counts, Miller was charged with the attempted murder of Deputies Stickford and Knight (Counts I and II) and Detective Hess (Count III). Miller was also charged with three counts of resisting law enforcement as Class D felonies for fleeing officers after the officers had identified themselves as police officers by visible or audible means and ordered Miller to stop. Count XI charged Miller with resisting Deputy Stickford; Count XII charged Miller with resisting Deputy Knight; and Count XIII charged Miller with resisting Detective Hess.
After a trial to the court on January 7, 1999, the trial judge took Counts I, II and III under advisement and found Miller guilty as charged of Counts IV through XIII. In ruling on the attempted murder charges (Counts I, II and III), the trial court found Miller guilty of criminal recklessness as a Class D felony on each count.2
Miller argues that the charged act of fleeing was a single, continuous incident, and thus he can be convicted of only one count of resisting law enforcement. We agree, and order the trial court to vacate two of Miller's three convictions of resisting law enforcement.
A person who knowingly or intentionally flees from a law enforcement officer after the officer has by visible or audible means ordered the person to stop and who draws or uses a deadly weapon commits resisting law enforcement, a Class C felony. Ind. Code § 35-44-3-3. In Armstead v. State, 549 N.E.2d 400, 402 (Ind.Ct.App.1990), the defendant, in the course of resisting a search, struggled with three officers, hitting one of them in the nose. We held that unless there was more than one incident, only one charge of resisting law enforcement could be lodged against a person:
The offenses set forth in title 35, art. 44, ch. 3 do not constitute crimes against the person. Rather, they are interferences with governmental operations constituting offenses against public administration. A person who violates IND. CODE 35-44-3-3 harms the peace and dignity of the State of Indiana and its law enforcement authority. The harm caused by one incident is the same regardless of the number of police officers resisted. It is the act of resisting duly constituted authority which the statute prohibits, not resisting individual representatives of that authority.
The State concedes that one of the three resisting law enforcement charges was improper. However, it urges us to affirm the other two and find that Miller's acts of fleeing Deputy Stickford and Detective Hess after having been told to stop were two separate incidents. We declined to accept similar reasoning in Touchstone v. State, 618 N.E.2d 48 (Ind.Ct.App.1993). In Touchstone, the State urged that we find separate incidents of resisting law enforcement when Touchstone was originally placed under arrest and again when police and Touchstone arrived at the police station. We found "[t]he facts disclose a single incident although Touchstone apparently ceased resisting during the drive to the police station, or a portion of it." Id. at 49.
Miller's acts in resisting law enforcement after he exited the bank and during the ensuing chase similarly arose from a single incident. As a result, we remand and order the trial court to vacate two of Miller's three convictions of resisting law enforcement.
Miller was charged with three counts of attempted murder. Count I alleged that:
DAYON M. MILLER, on or about APRIL 30, 1998, did attempt to commit the crime of Murder, which is to knowingly or intentionally kill another human being, that is: KEVIN STICKFORD, by engaging in conduct, that is: firing a handgun at and toward the person of KEVIN STICKFORD, with the intent to kill KEVIN STICKFORD, which conduct constituted a substantial step toward the commission of said crime of Murder[.]
(R. at 29.) Counts II and III are identical except for the names of the police officers involved. Miller contends that the trial court committed reversible error when it found him guilty of three counts of criminal recklessness as lesser included offenses of attempted murder. The majority of this panel agrees that the trial court erred when it found Miller guilty of criminal recklessness as lesser included offenses of attempted murder.3
Our supreme court has repeatedly held that criminal recklessness is not inherently a lesser included offense of attempted murder. See Wilson v. State, 697 N.E.2d 466, 477 (Ind.1998),
reh'g denied; Tunstall v. State, 451 N.E.2d 1077, 1079 (Ind.1983); Humes v. State, 426 N.E.2d 379, 383 (Ind. 1981). "[T]he offense of recklessness is not a lesser included offense of the crime of attempted murder and, further ... there can be no crime of `attempted recklessness.'" Humes, 426 N.E.2d at 383.
Neither was criminal recklessness a factually included lesser offense of all three counts charging Miller with attempted murder. The State argues:
The charging informations reveal that the manner and means used to commit the essential elements of attempted murder include all of the elements of criminal recklessness. See Shoup v. State, 570 N.E.2d 1298, 1303 (Ind.Ct. App.1991)
(citing Jones v. State, 519 N.E.2d 1233, 1234 (Ind.1988)). Criminal recklessness is a[sic] factually included in a count of attempted murder when the charging instrument reflects a substantial risk of bodily injury and facts that show the...
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