Vest v. State Of Ind.

• Decision Date: 15 September 2010
• Docket Number: No. 49A02-0912-CR-1276.,49A02-0912-CR-1276.
• Citation: 930 N.E.2d 1221
• Parties: Brandon VEST, Appellant-Defendant,v.STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

930 N.E.2d 1221

Brandon VEST, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0912-CR-1276.

Court of Appeals of Indiana.

July 21, 2010.
Rehearing Denied Sept. 15, 2010.

930 N.E.2d 1222

Suzy St. John, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Janine Steck Huffman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.OPINIONVAIDIK, Judge.Case Summary

Brandon Vest appeals his conviction for Class A misdemeanor resisting law enforcement. Vest was accused of fleeing from three police officers all within a single episode of pursuit and arrest. The State's charging information alleged that Vest knowingly fled from Officers “Geoffrey Barbieri and/or Josh Taylor and/or Joel Anderson.” The trial court did not

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instruct jurors that, in order to return a guilty verdict, they would have to agree unanimously as to which officer Vest fled. Vest argues the trial court erred by failing to do so.

Indiana courts have long held that resisting law enforcement is an offense against public administration rather than a crime against the person. In a single, continuous episode of resisting arrest by flight, only one offense is committed regardless of the number of officers involved. Accordingly, we conclude that the State prosecuted Vest for only one indivisible instance of resisting law enforcement, and jurors were not required to agree on which particular officer Vest fled. The trial court therefore did not err by declining to issue a specific unanimity instruction. We affirm.

Facts and Procedural History

Indianapolis Metropolitan Police Officers Geoffrey Barbieri, Joshua Taylor, and Joel Anderson were dispatched to a residence in response to a domestic disturbance. Officer Barbieri arrived first and parked his cruiser outside the house. He looked through the residence's kitchen window and saw Vest and two women in the living room. The women were seated, and Vest was pacing back and forth. Officer Barbieri remained outside and waited for the other officers to arrive.

At some point Vest exited the house and walked out onto the front porch. He stood for a moment, noticed the police cruiser parked nearby, and then turned and ran back inside. Officer Barbieri heard a loud commotion come from within the residence. He radioed the other officers and told them to hurry up.

Officer Barbieri next heard the sound of a window being opened. He approached one of the residence windows and observed Vest inside a bedroom, trying to remove the window screen. Officer Barbieri turned on his flashlight, identified himself as a police officer, and ordered Vest to stop and get on the ground. Vest did not comply. Officer Barbieri pulled out his taser and again instructed Vest to get down. Vest ran out of the room and into a hallway.

By this time Officers Anderson and Taylor had arrived and entered the residence. Vest saw the officers in the hallway and immediately headed back into the bedroom and toward the window. Officer Taylor yelled for Vest to stop. Officers Taylor and Anderson chased Vest into the room and tackled him on the bed. The officers ultimately cuffed him and took him into custody.

Approximately two minutes elapsed between the time Vest first came out onto the porch and the point at which he was handcuffed.

The State charged Vest with Class A misdemeanor resisting law enforcement. The amended charging information read as follows:

On or about August 25, 2009, in Marion County, State of Indiana, the following named defendant Brandon Vest, did knowingly flee from Geoffrey Barbieri and/or Josh Taylor and/or Joel Anderson, a law enforcement officer with the Indianapolis Metropolitan Police Department, after said officer had, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified himself, and ordered the defendant to stop.

Appellant's App. p. 58.

Vest was tried before a jury. The State called Officers Barbieri, Taylor, and Anderson to testify to the foregoing sequence of events. The State argued in closing:

930 N.E.2d 1224

[Officer Barbieri] said, “I'm the police. You need to get on the ground.” That was a flight when [Vest] chose not to ... obey those orders and go the 8 to 10 feet to the doorway. That's a flight. Here's another flight. He went out that doorway; he went into the hallway. Officers there ... said, “Stop.” What did he do, another flight? He went back into the bedroom and only when there was nowhere else to go because Barbieri was at the window, Taylor and Anderson were at the door, did he finally stop. And technically he didn't even stop then.

Tr. p. 69-70. The trial court instructed the jury in pertinent part:

Before you may convict the Defendant, the State must prove each of the following beyond a reasonable doubt:

1. The Defendant

2. did knowingly or intentionally

3. flee from Geoffrey Barbieri and/or Josh Taylor and/or Joel Anderson, law enforcement officers

4. after said officer(s) had, by visible or audible means, including operation of the law enforcement officer's siren or emergency lights, identified themselves

5. and ordered the defendant to stop.

Appellant's App. p. 59. The court also instructed that “[i]n order to return a verdict of guilty or not guilty you must all agree.... Do not sign any verdict form for which there is not unanimous agreement....” Id. at 71-72.

The jury found Vest guilty of resisting law enforcement. He now appeals.

Discussion and Decision

Vest contends that “[t]he State charged and argued [ ] flight from multiple officers in the disjunctive, through various courses of his conduct.... Without a unanimity instruction, the jury may have returned a guilty verdict that was not unanimous as to which police officer(s), if any, Vest resisted by flight.... Consequently, the trial court committed fundamental error by not giving a unanimity instruction.” Appellant's Br. p. 4. We understand Vest's argument as challenging both the form of the charging information as well as the trial court's final instructions to the jury.

I. Waiver

The State first argues that Vest has waived all issues presented on appeal, as he neither objected to the State's amended charging information nor proffered a specific unanimity instruction to the trial court.

Failure to timely challenge an alleged defective charging information ordinarily results in waiver of the issue. Higgins v. State, 690 N.E.2d 311, 314 (Ind.Ct.App.1997), reh'g denied. Failure to object to a verdict instruction likewise results in procedural default of the error. Townsend v. State, 632 N.E.2d 727, 730 (Ind.1994).

Nonetheless, a claim that has been waived by a defendant's failure to raise a contemporaneous objection can be reviewed on appeal if the reviewing court determines that a fundamental error occurred. Brown v. State, 929 N.E.2d 204 (2010). The fundamental error exception is “extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Id. The error claimed must either “make a fair trial impossible” or constitute “clearly blatant violations of basic and elementary principles of due process.” Id.

Vest's contention is that the State charged multiple offenses in a single count, that the trial court failed to issue a proper unanimity instruction, and that jurors may

930 N.E.2d 1225

have disagreed as to which crime, if any, was committed. These claims implicate Vest's elementary rights to...