Small v. State
| Decision Date | 18 April 1994 |
| Docket Number | No. 20A03-9209-CR-283,20A03-9209-CR-283 |
| Parties | Jeffrey A. SMALL, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender, Gregory L. Lewis, Deputy Public Defender, Indianapolis, for appellant.
Pamela Carter, Atty. Gen., Geoff Davis, Deputy Atty. Gen., Indianapolis, for appellee.
Jeffrey Small was convicted by a jury of battery on a police officer, a class D felony; 1 possession of cocaine, a class D felony; 2 fleeing a police officer, a class A misdemeanor; 3 and resisting law enforcement, a class A misdemeanor. 4 He presents seven issues for our review which we consolidate into six and restate as follows:
I. Whether the trial court erred in admitting evidence obtained after the police stopped Small.
II. Whether there was sufficient evidence to support Small's convictions.
III. Whether Small's convictions for battery and resisting law enforcement are defective because they were submitted to the jury under alternate theories.
IV. Whether the trial court erred in denying Small's motion for mistrial.
V. Whether the trial court erred in limiting the scope of Small's cross-examination.
VI. Whether the trial court erred in quashing Small's subpoena duces tecum for production of police documents.
We affirm.
The facts most favorable to the verdict reveal that on January 22, 1992, Officers Swygart and Speas were on routine patrol in a marked police car when they observed a vehicle driven by Small traveling east on Garfield Street. After the officers turned east onto Garfield behind Small, they observed Small's vehicle slow down abruptly, and rapidly pull off the side of the road in a very jerky fashion, without using a turn signal. The officers then activated the red and blue police lights on their vehicle and pulled behind Small.
Officer Speas approached the driver's window and asked Small to produce his driver's license and registration, and to step from the vehicle. Small stepped from the vehicle and said his license and registration were in the glove compartment. He then walked around the rear of his vehicle to the passenger side, opened the door, bent down and looked inside. Small then started back around the rear of the vehicle and suddenly started running away from the scene, dropping things as he ran. Officer Swygart pursued Small on foot while shouting several times for Small to stop. Although Small looked back several times, he continued to run.
Swygart pursued Small for three blocks, until someone driving a Ford Taurus stopped, picked up Small, and drove away. Swygart then walked back to where Small's vehicle was parked and discovered a plastic baggy, containing what later turned out to be cocaine, laying on the ground approximately five feet behind Small's vehicle.
Meanwhile, Officer Speas, driving the patrol car, had assumed the pursuit of Small. Speas had been pursuing the Ford Taurus for several blocks when it stopped and all of the occupants exited and fled on foot. Speas followed Small into an alley where he advised Small he was under arrest and instructed him to place his hands behind his back. Small laughed and said he was not going to jail. Officer Speas grabbed Small's arm and Small pulled away and started to walk away. Speas then grabbed Small by the back of the jacket and Small swung around and struck Speas in the chest with his fist.
Small started to run again, but Speas caught him and the two men began wrestling in the street. Soon, a red Audi pulled up and the driver opened the door and yelled for Small to get inside. When Small attempted to get into the Audi, Speas jumped in the vehicle on top of him. The red Audi started to drive away, with both Small and Officer Speas "still half-way hanging out of the car", when another police vehicle arrived and offered assistance to Speas. Record, p. 199. The officers and Small continued to struggle until Small was finally handcuffed. It was only after Small was subdued that Speas noticed his own hand was bleeding and was swollen.
First, Small argues the trial court erred in denying his motion to suppress the evidence obtained by the police because there was no probable cause justifying the initial stop. The trial court has broad discretion in ruling on the admissibility of evidence. We will disturb its ruling only upon a showing of abuse of that discretion. Kremer v. State (1987), Ind., 514 N.E.2d 1068, 1073, reh. denied.
Officers may stop a vehicle when they observe minor traffic violations. Black v. State (1993), Ind.App., 621 N.E.2d 368, 370. IND.CODE 9-21-8-24 (1993) provides that
A person may not:
(1) slow down or stop a vehicle;
(2) turn a vehicle from a direct course upon a highway; or
(3) change from one (1) traffic lane to another; unless the movement can be made with reasonable safety. Before making a movement described in this section, a person shall give a clearly audible signal by sounding the horn if any pedestrian may be affected by the movement and give an appropriate stop or turn signal ... if any other vehicle may be affected by the movement.
At trial, the officers testified that they stopped Small because he made a "very rapid and jerky turn to the side of the road" without activating his turn signal. Record, p. 137. Officer Swygart also testified that Small's vehicle was only one and one-half car lengths in front of the police car when Small attempted this maneuver. 5 The evidence supports the conclusion that Small committed a traffic violation. The trial court did not err in denying Small's motion to suppress.
Next, Small contends there was insufficient evidence to support his convictions for possession of cocaine and resisting law enforcement. Our test for sufficiency of the evidence requires that we neither weigh the evidence nor resolve questions of credibility. We look only to the evidence of probative value and the reasonable inferences to be drawn therefrom which support the verdict. Jones v. State (1992), Ind., 589 N.E.2d 241, 242.
The offense of resisting law enforcement is committed where a person "knowingly or intentionally forcibly resists, obstructs, or interferes with a law enforcement officer ... while the officer is lawfully engaged in the execution of his duties as an officer." I.C. 35-44-3-3. The amended charging information in the present cause alleged as follows:
Jeffrey A. Small did then and there unlawfully, knowingly, and forcibly pull away from and refuse to place his hands behind his back while Patrolman R. Speas, a law enforcement officer employed by the Elkhart City Police Department was lawfully engaged in his duties as a law enforcement officer....
Record, p. 29. Small argues his conviction for this offense cannot stand because there is insufficient evidence that he forcibly resisted.
In analyzing exactly what constitutes force as applied in the statute at issue our supreme court reviewed the definitions of "force" in several dictionaries and opined that The common denominators of these definitions are the use of strength, power or violence, applied to one's actions, in order to accomplish one's ends. We believe that one 'forcibly resists' law enforcement when strong, powerful, violent means are used to evade a law enforcement official's rightful exercise of his or her duties.
Spangler v. State (1993), Ind., 607 N.E.2d 720, 723.
In Spangler, the court held there was insufficient evidence to support defendant's conviction for resisting law enforcement where he repeatedly and firmly refused to accept service of process from law enforcement officials, and then walked away. Because there was no evidence that Spangler made any movement nor used strength, power or violence to accomplish his objective, his conviction was reversed. Id. at 724. See also Braster v. State (1992), Ind.App., 596 N.E.2d 278, 280, trans. denied
We believe that Spangler and Braster are distinguishable from the case at bar. Here, Small necessarily engaged in force in order to pull away from Officer Speas' grasp. Small did not merely refuse to be placed under arrest or simply walk away; rather, he used power and strength to evade the officer's attempt to effectuate a lawful arrest. The evidence was sufficient to support his conviction for resisting law enforcement.
Small also challenges the sufficiency of the evidence in support of his conviction for possession of cocaine. He asserts there was no evidence that he had physical or constructive possession of the cocaine found on the ground near his vehicle. "Constructive possession is defined as the intent and capability to maintain dominion and control over the illegal drugs." Kelley v. State (1990), Ind.App., 555 N.E.2d 1341, 1343. An inference of intent may be established by showing that the defendant had knowledge of the presence of the drugs. Id. at 1343-44.
In Kelley, the Fourth District held there was sufficient evidence to support the possession of cocaine conviction where the cocaine was recovered from an alley through which defendant ran when he fled from police. The court pointed to the following evidence from which the required inference of intent was established: (1) drugs were found in an area through which the defendant had recently fled; (2) the bag of cocaine was dry and could not have been in the alley more than a day; (3) the officers testified that no one entered the alley between the time defendant ran through it and when the cocaine was found; and (4) illegal drugs...
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