Cole v. State

69 N.E.3d 552

Matthew James COLE, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 49A02-1603-CR-542

Court of Appeals of Indiana.

February 8, 2017

Attorney for Appellant : Karen Celestino-Horseman, Indianapolis, Indiana.

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, Indiana.

Altice, Judge.

Case Summary

[1] Following a jury trial, Matthew Cole was convicted of Level 3 felony resisting law enforcement, Level 5 felony possession of an altered handgun, Level 5 felony possession of methamphetamine, Level 5 felony possession of a narcotic drug, three counts of class A misdemeanor carrying a handgun without license, and class A infraction possession of paraphernalia. On appeal, Cole argues that the State presented insufficient evidence to support a number of his convictions.

[2] We affirm.

Facts & Procedural History

[3] While on patrol during the early evening hours of June 23, 2015, Officer Timothy Elliott of the Indianapolis Police Department parked his marked police vehicle on an access road in Washington Park in Indianapolis. Officer Elliott heard a car engine rev and saw pedestrians leaping out of the way of a car traveling down the access road at a high rate of speed. Officer Elliott activated his lights and positioned his vehicle to block the car's path. When it reached Officer Elliott's vehicle, the car came to an abrupt stop.

[4] When Officer Elliott approached the vehicle, he observed two male occupants and saw a knife near the center console. Officer Elliott asked the driver, who was later identified as Cole, for his license and registration. Cole had very contracted pupils and appeared to be nervous. Specifically, Cole would not look Officer Elliott in the eye, repeatedly looked toward his passenger, stuttered while answering questions, and was evasive and unable to give specific answers when asked where he had been and where he was going. Cole gave Officer Elliott a picture identification card that clearly belonged to someone else. Cole reached toward the glove box, then stopped and stated that the vehicle belonged to his friend and that he did not have the registration. Based on this behavior, Officer Elliott believed that Cole was under the influence of drugs.

[5] Meanwhile, the passenger, Joshua Dyer, opened the glove box and reached inside and also reached down toward the floorboard. Officer Elliott ordered Dyer to keep his hands where he could see them. Dyer gave his identification to Officer Elliott. As Officer Elliott walked toward the back of the car to get the license plate number, the car sped away. Officer Elliott immediately called for backup and got back into his vehicle and began pursuing the car with his lights and sirens activated.

[6] Cole led Officer Elliott and other responding officers on a high-speed chase, during which Cole repeatedly crossed into the path of oncoming traffic, failed to stop at several stop signs, endangered pedestrians, went airborne on at least two occasions, and reached a top speed of approximately ninety miles per hour. At the end of the pursuit, Cole drove through the parking lot of a fast food restaurant, into a residential alley, and came to a stop in a residential backyard after crashing through a fence.

[7] By the time the car came to a stop, IMPD Officer Derrick Harper had joined the pursuit. Officer Harper parked his police car beside Officer Elliott in the driveway of the residence. Officers Elliott and Harper both exited their vehicles and approached the car with their weapons drawn—Officer Elliott on the driver-side and Officer Harper on the passenger-side—while shouting commands for Cole and Dyer to exit the vehicle with their hands up.

[8] Cole opened the driver-side door and put his hands in the air, but then pulled the door closed. Dyer opened the passenger-side door with his left hand and then put his left hand out while keeping his right hand hidden. Dyer then briefly put his right foot on the ground as if he was going to get out of the car, but then pulled it back inside. Dyer then started rummaging around on the floorboard and under his seat, continuing to disregard the officers' commands to put his hands up. Officer Harper then observed Dyer, who was bent over and whose hands were not in view, make a motion with his shoulder that Officer Harper believed was consistent with cocking a firearm. Dyer then sat up and began to raise his right elbow as if he had something in his hand. At the same time, Cole put the car in reverse and accelerated. The car fishtailed first toward Officer Elliott and then toward Officer Harper, who was trapped between the accelerating car and the fence. In response to the threat of the oncoming car and believing that Dyer was armed and preparing to fire on him, Officer Harper shot and fatally wounded Dyer. Officer Harper was unable to get a clear shot at Cole, so he did not fire again. Cole continued to accelerate and only surrendered when the car became stuck on a chain-link fence.

[9] After Cole was taken into custody, police searched the car and discovered three handguns—a .22 revolver and a 9mm Taurus were found in the glove box and a Ruger .380 with an obliterated serial number was found on the rear passenger floorboard. Additionally, a large amount of ammunition and numerous syringes were found throughout the car. In the center console, police found two digital scales, a glass pipe with methamphetamine residue, and a manicure kit containing a spoon with heroin residue, a razor blade, and .35 grams of heroin.

[10] As a result of these events, Cole was charged as follows: Count I, Resisting Law Enforcement as a Level 3 felony; Count II, Possession of an Altered Handgun, a Level 5 felony; Count III, Possession of Methamphetamine as a Level 5 felony; Count IV, Possession of a Narcotic Drug as a Level 5 felony, Counts V-VII, Carrying a Handgun Without a License as a class A misdemeanor; and Count VIII, Possession of Paraphernalia as a class A infraction.¹ A two-day jury trial commenced on November 10, 2016, at the conclusion of which Cole was found guilty as charged. The trial court sentenced Cole to an aggregate term of eighteen years, with ten years executed and eight years suspended to probation. Cole now appeals.

Discussion & Decision

[11] On appeal, Cole argues that the State presented insufficient evidence to support his convictions. In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Atteberry v. State , 911 N.E.2d 601, 609 (Ind. Ct. App. 2009). Instead, we consider only the evidence supporting the conviction and the reasonable inferences flowing therefrom. Id. If there is substantial evidence of probative value from which a reasonable trier of fact could have drawn the conclusion that the defendant was guilty of the crime charged beyond a reasonable doubt, the judgment will not be disturbed. Baumgartner v. State , 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not necessary that the evidence overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference may reasonably be drawn from it to support the conviction. Drane v. State , 867 N.E.2d 144, 147 (Ind. 2007).

1. Resisting Law Enforcement

[12] Cole first challenges his conviction for resisting law enforcement as a Level 3 felony. A person commits resisting law enforcement as a class A misdemeanor if he or she 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[.]" Ind. Code § 35–44.1–3–1(a)(1). The offense is elevated to a Level 3 felony if, while committing the offense, "the person operates a vehicle in a manner that causes the death of another person[.]" I.C. § 35–44.1–3–1(b)(3). On appeal, Cole argues that the evidence was insufficient to support the elevation of his conviction to a Level 3 felony because the State failed to prove that it was Cole's operation of the car that caused Dyer's death. Instead, he argues that Dyer's death was caused by Officer Harper, who shot Dyer in response to Dyer's own actions in making furtive movements and refusing to show his hands.

[13] This court recently discussed causation in the context of the resisting law enforcement statute in Moore v. State , 49 N.E.3d 1095 (Ind. Ct. App. 2016), trans. denied . In that case, the court was asked to consider whether the evidence was sufficient to establish that the defendant had caused the injury sustained by the arresting officer when he fell down while chasing the fleeing defendant. Id. at 1106 ; see also I.C. § 35–44.1–3–1(b)(1)(B) (elevating resisting law enforcement to a Level 6 felony when the defendant "inflicts bodily injury on or otherwise causes bodily injury to another person"). The court held that the defendant's acts of resistance must be a proximate cause of the injury, and not merely a contributing cause. Id. at 1107–08. As the court noted, a contributing cause is "a factor that—though not the primary cause—plays a part in producing a result." Id. at 1107 (quoting Abney v. State , 766 N.E.2d 1175, 1178 (Ind. 2002) ). The court described proximate cause as follows:

A finding of proximate cause embodies a value judgment as to the extent of the physical consequences of an action for which the actor should be held responsible. Accordingly, "proximate cause questions are often couched in terms of ‘foreseeability;’ an actor is not held responsible for consequences which are unforeseeable." It follows that, where an intervening cause is claimed as superseding the defendant's actions, the intervening cause must be unforeseeable to relieve the defendant of criminal liability.

Id. at 1107–08 (quoting Gibbs v. State , 677 N.E.2d 1106, 1109 (Ind. Ct. App. 1997) ).

[14] Applying the proximate...