Thrash v. State

88 N.E.3d 198

Nathaniel THRASH, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

Court of Appeals Case No. 49A02–1603–CR–494

Court of Appeals of Indiana.

Filed November 21, 2017

Attorneys for Appellant : Ruth Ann Johnson, Indianapolis, Indiana, Matthew D. Anglemeyer, Indianapolis, Indiana

Attorneys for Appellee : Curtis T. Hill, Jr., Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, Indiana

Riley, Judge.

STATEMENT OF THE CASE

[1] Appellant–Defendant, Nathaniel Thrash (Thrash), appeals his conviction for two Counts of resisting law enforcement, as a Class A misdemeanor, and as a Level 6 felony, Ind. Code § 35–44.1–3–1(a)(1).

[2] We affirm.

ISSUES

[3] Thrash presents three issues on appeal, which we restate as the following:

(1) Whether the trial court abused its discretion by admitting certain evidence;

(2) Whether the State presented sufficient evidence to support Thrash's Level 6 felony resisting law enforcement conviction; and

(3) Whether Thrash's conviction for two Counts of resisting law enforcement violated the prohibition against double jeopardy under the Indiana Constitution.

FACTS AND PROCEDURAL HISTORY

[4] At approximately 7:00 p.m. on September 29, 2015, Indianapolis Metropolitan Police Department officers Christopher Cooper (Officer Cooper) and Derek Jackson (Officer Jackson) were dispatched to an apartment building located at 3640 North Meridian Street in Indianapolis, Indiana. Upon arriving, the officers encountered a woman who identified herself as Thrash's ex-girlfriend. Thrash's ex-girlfriend was visibly upset and she explained to the officers that Thrash was not supposed to be there, and she believed Thrash had a pending warrant of arrest. Moments later, the officers made eye contact with Thrash, and saw him run west in the common hallway and toward the back of the building. Thrash, however, did not exit the apartment building.

[5] Thrash's ex-girlfriend allowed the officers inside the building, and the officers pursued Thrash in the direction he ran. When the officers reached the end of the hallway, they observed a stairwell leading to dark hallway basement that had numerous locked doors. While going down to the basement, the officers had their guns drawn and flashlights on. In addition, the officers loudly announced their presence by stating, "POLICE!" (Transcript p. 44). While Officer Jackson was searching the laundry room at the base of the staircase, Officer Cooper proceeded down the narrow hallway. There, Officer Cooper came across Thrash standing in a dark corner. Thrash's hands were in his coat pockets. Officer Cooper yelled several times, "[S]how me your hands!" but Thrash did not comply. (Tr. p. 76). Upon hearing the commotion in the back, Officer Jackson joined Officer Cooper. Both officers ordered Thrash, on multiple occasions to show them his hands, but Thrash did not obey their commands. As such, Officer Cooper holstered his gun, approached Thrash, and forcefully grabbed his right arm in an attempt to remove Thrash's hands from his coat pocket. Officer Jackson did the same for Thrash's left arm. Thrash, however, flexed his muscles and jerked his arms away. Based on Thrash's resistance, Officer Cooper effectuated a "leg sweep," which brought Thrash down to the ground. (Tr. p. 79). While lying on the ground, Thrash refused to remove his hands from underneath his body. The officers bent over and restrained Thrash's hands. As Officer Jackson got Thrash off the ground, he saw Officer Cooper bent over and Officer Cooper was experiencing pain in his back. Thrash thereafter voiced to Officer Jackson that he was sorry for resisting arrest, and for Officer Cooper's injury.

[6] On September 30, 2015, the State filed an Information, charging Thrash with Count I, resisting law enforcement, a Level 6 felony; and Count II, resisting law enforcement, a Class A misdemeanor. A jury trial was held on January 26, 2016. On the morning of Thrash's jury trial, the trial court conducted a suppression hearing pursuant to Thrash's motion to exclude the officers' hearsay testimony regarding his ex-girlfriend's statement that Thrash had a pending warrant of arrest. Both Officers Cooper and Jackson testified, and reiterated the hearsay statement over Thrash's objection. At the close of the suppression hearing, Thrash's counsel expressed to the trial court that he had no issue with the officers' hearsay testimony, so long as their testimonies left out the warrant aspect. Thrash's counsel was concerned that the "warrant aspect" would be "too toxic," and was "worried the jury is going to hear that [Thrash] has a warrant and just shut down." (Suppression Tr. p. 27). Following Thrash's argument, the trial court ruled as follows:

Now Officers, [I] need you both listen to me very carefully, State already said what you're going to be allowed to say. I'm going to order over the Defense objection on a limiting instruction. When the jury is in here and you're testifying you can say that she said she doesn't want him here. ...

* * * *

And that she told you she thinks he has a warrant. Alright. We can't get into her head while she's not here, so the fact that she said he has a warrant I'm not going to even say that that's true. So you can say that she expressed to you that she thought he had a warrant. Okay. I don't want to hear a word about wanted for escape. I don't want to hear a word about anything else that she said or I will mis-try (sic) this thing. Alright. Now this is a pretty close call, but I'm using my discretion. State, I'm going to order you to prepare that limiting instruction. I'm going to order that that be given as well. We're showing [Thrash's] objection. Don't forget to object during trial to preserve it, Defense. Don't forget to object during trial, too, when we get to that point. So be very careful, [o]fficers. Because I am, again, using my discretion under the rules of evidence to let some things in here but it is, it is concerning. Okay.

(Suppression Tr. p. 28). After the jury was empaneled and sworn in, Thrash's trial proceeded. Officer Cooper testified that he had been dispatched to Thrash's ex-girlfriend's building to investigate a disturbance call. Officer Cooper then stated what Thrash's ex-girlfriend had reported to him, but Thrash's counsel interjected. During a side bar, Thrash's counsel renewed his objection regarding what Thrash's ex-girlfriend reported as hearsay. Upon the conclusion of the side bar, the trial court overruled Thrash's objection and it admonished the jury as follows:

Ladies and Gentleman (sic), the officer is about to talk about a witness who is not here and is not subject to cross examination. You're only to considerwhat the witness says to show why the officer did what he did. You are not to consider whether what she said is being offered by the State to prove the truthfulness of what she said. You're only to consider it to show why the officers did what they did. With that admonishment[,] I will allow the State to ask the question over Defense objection.

(Tr. p. 40). Officer Cooper subsequently testified that after he encountered Thrash's ex-girlfriend, she stated that Thrash "was inside the apartment building and she thinks he has a warrant." (Tr. p. 40). Officer Cooper described how Thrash resisted arrest, and that he was injured as result of Thrash's conduct of resisting arrest. Similarly, Officer Jackson testified that when he met Thrash's ex-girlfriend outside the apartment building, "she said that her ex-boyfriend [,Thrash,] was in the building. He wasn't supposed to be there and she thinks he may have had a warrant." (Tr. p. 75). Officer Jackson correspondingly testified about Thrash's acts of resistance, and he stated that Thrash "expressed that he was sorry that he resisted" and "was sorry that Officer Cooper had gotten hurt." (Tr. p. 82). At the close of the evidence, the jury returned a guilty verdict on both Counts of resisting law enforcement. On February 17, 2016, the trial court conducted a sentencing hearing. At the close of the hearing, the trial court sentenced Thrash to executed concurrent sentences of 730 days with 670 days suspended for the Level 6 felony conviction, and 365 days, with 305 days suspended for the Class A misdemeanor conviction.

[7] Thrash now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Admission of the Evidence

[8] Thrash argues that the trial court abused its discretion by admitting the officers' testimonies regarding his ex-girlfriend's statement that he possibly had a pending warrant of arrest. Thrash argues that the statements were inadmissible hearsay.

[9] A trial court has broad discretion in ruling on the admissibility of evidence, and, on review, we will disturb its ruling only on a showing of abuse of discretion. Sparkman v. State, 722 N.E.2d 1259, 1262 (Ind. Ct. App. 2000). When reviewing a decision under an abuse of discretion standard, we will affirm if there is any evidence supporting the decision. Id. A claim of error in the admission or exclusion of evidence will not prevail on appeal unless a substantial right of the party is affected. Ind. Evidence Rule 103(a). In determining whether an error in the introduction of evidence affected a defendant's substantial rights, we assess the probable impact of the evidence on the jury. Sparkman, 722 N.E.2d at 1262.

[10] Hearsay is an out-of-court statement offered for "the truth of the matter asserted," and it is generally not admissible as evidence. Ind. Evidence Rule 801(c)(2), 802. "Whether a statement is hearsay will most often hinge on the purpose for which it is offered." Blount v. State, 22 N.E.3d 559, 565 (Ind. 2014) (quoting United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998) ). The State contends that the officers' hearsay testimony was offered for the purpose of describing the police investigation. We have held that out-of-court statements made to law enforcement are non-hearsay if...