Opinion
Court of Appeals Case No. 21A-CR-1157
12-28-2021
Aaron Christian RIVERA, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
Attorneys for Appellant: Christopher J. Evans, Dyllan M. Kemp, Dollard Evans Whalin LLP, Noblesville, Indiana Attorneys for Appellee: Theodore E. Rokita, Attorney General, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana
Attorneys for Appellant: Christopher J. Evans, Dyllan M. Kemp, Dollard Evans Whalin LLP, Noblesville, Indiana
Attorneys for Appellee: Theodore E. Rokita, Attorney General, Megan M. Smith, Deputy Attorney General, Indianapolis, Indiana
MEMORANDUM DECISION
Crone, Judge.
Case Summary
[1] After a trial, a jury found Aaron Christian Rivera guilty of numerous crimes, including two counts of resisting law enforcement, auto theft, theft, and battery resulting in bodily injury to a public safety official. The trial court imposed an aggregate sentence of six and a half years. On appeal, Rivera argues that his multiple resisting law enforcement convictions violate Indiana's prohibition against double jeopardy, that his theft conviction is not supported by sufficient evidence, and that his sentence is inappropriate in light of the nature of the offenses and his character. We affirm.
Facts and Procedural History
[2] At 2:42 p.m. on September 14, 2020, Hamilton County Sheriff's Deputy Daniel Wallace saw a car with no license plate traveling southbound on Riverwood Avenue in Noblesville. The deputy stopped the vehicle at 211th Street and asked the two occupants for identification. Deputy Wallace determined that the driver was Rivera and that he had an outstanding warrant for his arrest. The deputy told Rivera to "shut the vehicle off" and that he was going to be taken to jail. Tr. Vol. 2 at 155. Rivera turned the engine off, but when the deputy opened the car door, Rivera restarted the vehicle. The deputy told him to stop, but Rivera put the vehicle in gear. Deputy Wallace reached into the vehicle for the gear shifter, and Rivera tried to gouge the deputy's right eye with his left thumb. Eventually, the deputy was able to turn off the engine and remove the keys from the ignition. Deputy Wallace saw Rivera reach for a pocketknife at his waist, so he tased Rivera's back. Rivera flipped over, and the deputy "withdrew [himself] from the vehicle" because he knew that "the knife was in play[.]" Id. at 159. Rivera got out of the car and ran westbound. Deputy Wallace remained at the scene with Rivera's passenger and waited for other officers to arrive. The deputy suffered cuts and abrasions on his face and hands as a result of his struggle with Rivera.
[3] Shortly after Rivera fled, Deputy Eric Gilbert arrived, talked to Deputy Wallace, and drove west on 211th Street to look for Rivera. He got out of his vehicle and saw Rivera lying on the ground near some tall weeds on the south side of the road. Deputy Gilbert ordered Rivera to show his hands, but Rivera stood up and ran into the weeds. Deputy Gilbert chose not to pursue him and informed dispatch that Rivera was running south toward 206th Street.
[4] Soon thereafter, Deputy Gilbert was dispatched to Tim and Arlene Netherys’ home, which is south of 211th Street on Riverwood Avenue. The Netherys stated that they were out on their front porch and heard their back door slam. Minutes later, they saw a male pull out of their driveway in Tim's red pickup truck and turn south onto Riverwood Avenue. They called 911 and noticed that Tim's keys and wallet were missing from the kitchen counter. Before Deputy Gilbert left the Netherys’ home, someone retrieved Tim's wallet from the middle of the roadway near 206th Street and Riverwood Avenue.
[5] At 3:04 p.m., Noblesville Police Department Officer Cory Munsell received a dispatch about the stolen pickup and saw it traveling southbound on State Road 37 north of 146th Street. Officer Munsell followed the pickup and activated his emergency lights. The pickup sped up, merged onto Interstate 69, and exited westbound onto 116th Street. The officer had to break off the pursuit.
[6] Fishers Police Department Lieutenant Trent Skaggs also received a dispatch about the stolen pickup and started driving toward the 116th Street exit. He saw the pickup run a red light on 116th Street and strike another vehicle. The pickup careened out of control, knocked down a city-owned lamppost and tree, and smashed into a building at the corner of 116th Street and Lantern Road. Lieutenant Skaggs saw Rivera exit the pickup, run south on Lantern Road, and attempt to enter the passenger side of a vehicle that was stopped in traffic with its windows down. The driver of the vehicle tried to trap Rivera by rolling up the window, and Lieutenant Skaggs exited his vehicle and ordered Rivera to stop. Rivera ran off. Lieutenant Skaggs pursued him and apprehended him with the assistance of another officer.
[7] The State charged Rivera with numerous crimes: one count of level 6 felony resisting law enforcement (Deputy Wallace), one count of level 5 felony battery resulting in bodily injury to a public safety official (Deputy Wallace), two counts of class A misdemeanor resisting law enforcement (one for Deputy Wallace and one for Lieutenant Skaggs), one count of level 4 felony burglary (breaking and entering the Netherys’ home), one count of level 6 felony residential entry, one count of level 6 felony auto theft, one count of class A misdemeanor theft (Tim's wallet and its contents), two counts of class B misdemeanor leaving the scene of an accident (colliding with the lamppost and the tree and colliding with the building), and four counts of level 5 felony attempted robbery. Before Rivera's April 2021 jury trial, the court granted the State's motion to dismiss three of the four attempted robbery counts. At the close of evidence, the court granted Rivera's motion for a directed verdict on the remaining attempted robbery count and on the leaving the scene of an accident count involving the building. The jury found Rivera not guilty of burglary and residential entry and found him guilty on the remaining counts.
[8] At the June 2021 sentencing hearing, the trial court vacated the level 6 felony resisting law enforcement conviction, apparently due to double jeopardy concerns, and sentenced Rivera to concurrent terms of four years for the battery conviction and one year for the resisting law enforcement conviction involving Deputy Wallace, to be served consecutive to concurrent terms of two years for the auto theft conviction, 180 days for the theft conviction, and 180 days for the leaving the scene of an accident conviction, to be served consecutive to a 180-day term for the resisting law enforcement conviction involving Lieutenant Skaggs, for an aggregate term of six and a half years, all executed. Rivera now appeals some of his convictions and his sentence.
Discussion and Decision
Section 1 – Rivera's multiple convictions for resisting law enforcement do not violate Indiana's prohibition against double jeopardy.
[9] Rivera first contends that his two convictions for class A misdemeanor resisting law enforcement violate Indiana's prohibition against double jeopardy. We review this claim de novo. Wadle v. State , 151 N.E.3d 227, 237 (Ind. 2020). Our supreme court has explained that "[s]ubstantive double-jeopardy claims principally arise in one of two situations: (1) when a single criminal act or transaction violates multiple statutes with common elements, or (2) when a single criminal act or transaction violates a single statute and results in multiple injuries." Powell v. State , 151 N.E.3d 256, 263 (Ind. 2020). This case implicates the latter scenario and thus involves a two-step process. Id. We first review the text of the statute to determine the appropriate unit of prosecution. Id. at 264. "The unit of prosecution is the minimum action required to commit a new and independent violation of a criminal statute." Jones v. State , 159 N.E.3d 55, 63 (Ind. Ct. App. 2020), trans. denied (2021). "If the unit of prosecution is clear, ‘we follow the legislature's guidance and our analysis is complete.’ " Id. (quoting Powell , 151 N.E.3d at 264 ). Here, the relevant portion of the resisting law enforcement statute contains no distinct unit of prosecution. See Ind. Code § 35-44.1-3-1(a) (providing in pertinent part that a person commits class A misdemeanor resisting law enforcement by knowingly or intentionally "flee[ing] from a law enforcement officer after the officer has, by visible or audible means, ... identified himself or herself and ordered the person to stop"). Consequently, we determine whether subsection (a) of Indiana Code Section 35-44.1-3-1 is conduct-based or result-based. Powell , 151 N.E.3d at 265.
By contrast, subsection (i) of Indiana Code Section 35-44.1-3-1does contain a distinct unit of prosecution for level 5 and level 6 felony resisting law enforcement that results in various degrees of injury or death ("A person who commits an offense described in subsection (c) commits a separate offense for each person whose bodily injury, serious bodily injury, catastrophic injury, or death is caused by a violation of subsection (c).").
[10] "A conduct -based statute ... consists of an offense defined by certain actions or behavior (e.g. , operating a vehicle) and the presence of an attendant circumstance (e.g. , intoxication)." Id. at 266. "Under these statutes, the crime is complete once the offender engages in the prohibited conduct, regardless of whether that conduct produces a specific result (e.g. , multiple victims)." Id. "A result -based statute, on the other hand, consists of an offense defined by the defendant's actions and the results or consequences of those actions." Id. "[C]rimes defined by conduct (rather than by consequence) permit only a single conviction (with multiple consequences resulting in enhanced penalties, not multiple crimes). But crimes defined by consequence (rather than by conduct) permit multiple convictions when multiple consequences flow from a single criminal act." Id . Clearly, Section 35-44.1-3-1(a) is conduct-based, as the crime of resisting is complete once the offender flees after being ordered to stop.
[11] We now engage in the second step of our analysis and "determine whether the facts—as presented in the charging instrument and as adduced at trial—indicate a single offense or whether they indicate distinguishable offenses." Id. at 264. "To answer this question, we ask whether the defendant's actions are ‘so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.’ " Id. (quoting Walker v. State , 932 N.E.2d 733, 735 (Ind. Ct. App. 2010) ). "If the defendant's criminal acts are sufficiently distinct, then multiple convictions may stand; but if those acts are continuous and indistinguishable, a court may impose only a single conviction."Id. at 264-65. "Any doubt counsels ‘against turning a single transaction into multiple offenses.’ " Id. at 265 (quoting Duncan v. State , 274 Ind. 457, 464, 412 N.E.2d 770, 775 (1980) ).
[12] The facts of this case leave no doubt that Rivera committed two distinguishable acts of resisting law enforcement. The charging information simply alleged that Rivera fled from two officers from different law enforcement agencies after they ordered him to stop; this in itself is insufficient to establish distinguishable offenses, as the officers could have been in the same location and simultaneously ordered Rivera to stop. But the evidence adduced at trial established separate acts of flight, approximately half an hour apart, in response to separate commands to stop in separate municipalities. The State persuasively observes that
[w]hile Rivera intended to flee law enforcement, each act of flight had a more unique purpose. The purpose of running away from the traffic stop was to evade Deputy Wallace and avoid being arrested on an outstanding warrant. By the time Rivera encountered Lieutenant Skaggs, he had successfully evaded Deputy Wallace, along with other law enforcement officers. When Rivera ran from Lieutenant Skaggs, his purpose was to evade Lieutenant Skaggs and avoid being arrested for the numerous criminal offenses he had just committed throughout Hamilton County.
Appellee's Br. at 16. Based on the foregoing, we find no double jeopardy violation, and therefore we affirm both of Rivera's convictions for resisting law enforcement.
We are unpersuaded by Rivera's reliance on Nevel v. State , 818 N.E.2d 1 (Ind. Ct. App. 2004), in which we found that the defendant's convictions for class D felony and class A misdemeanor resisting law enforcement violated double jeopardy principles where he fled from an officer in his vehicle, exited the vehicle, and then continued to flee from the officer on foot. See id. at 4-5 (agreeing with defendant's argument that " ‘his fleeing was one continuous act’ of resisting" and therefore his misdemeanor conviction must be vacated on double jeopardy grounds).
Section 2 – Rivera's theft conviction is supported by sufficient evidence.
[13] Rivera also asserts that his theft conviction is not supported by sufficient evidence. In reviewing a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Anderson v. State , 37 N.E.3d 972, 973 (Ind. Ct. App. 2015), trans. denied. We respect the jury's exclusive province to weigh conflicting evidence, and we consider only the evidence most favorable to its verdict. Id. It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Gray v. State , 957 N.E.2d 171, 174 (Ind. 2011). We must affirm if the evidence and the reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Anderson , 37 N.E.3d at 974.
Rivera's contrary assertion, based on a quotation from Cantrell v. State , 673 N.E.2d 816 (Ind. Ct. App. 1996), trans. denied (1997), is an incorrect statement of the appellate standard of review.
[14] To convict Rivera of class A misdemeanor theft as charged, the State was required to prove beyond a reasonable doubt that he knowingly or intentionally exerted unauthorized control over Tim's wallet and its contents with the intent to deprive him of any part of their value or use. Ind. Code § 35-43-4-2(a). A theft conviction may be sustained by circumstantial evidence alone if that evidence supports a reasonable inference of guilt. Hayworth v. State , 798 N.E.2d 503, 507 (Ind. Ct. App. 2003). Here, although the Netherys did not personally see Rivera take Tim's wallet, the evidence and the reasonable inferences most favorable to the jury's verdict establish that Rivera entered the Netherys’ home, took Tim's wallet and keys from the kitchen counter, and drove Tim's pickup south on Riverwood Avenue, where he tossed the wallet onto the roadway. In other words, Rivera knowingly or intentionally exerted unauthorized control over Tim's wallet and its contents with the intent to deprive him of at least part of their value or use. Rivera's argument to the contrary is merely an invitation to reweigh evidence, which we may not do. Consequently, we affirm Rivera's theft conviction.
Rivera suggests that his theft conviction cannot stand because he was acquitted of burglary and residential entry, but our supreme court has held that "[j]ury verdicts in criminal cases are not subject to appellate review on grounds that they are inconsistent, contradictory, or irreconcilable." Beattie v. State , 924 N.E.2d 643, 649 (Ind. 2010). Rivera also emphasizes that the wallet was quickly recovered and returned to Tim with its contents intact, but we note that Tim was deprived of their value or use in the interim, and our theft statute does not require proof of "intent to permanently deprive." Bennett v. State , 878 N.E.2d 836, 836 (Ind. 2008).
Section 3 – Rivera has failed to establish that his sentence is inappropriate.
[15] Finally, Rivera asks us to reduce his sentence pursuant to Indiana Appellate Rule 7(B), which provides that we may "revise a sentence authorized by statute if, after due consideration of the trial court's decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the character of the offender." "Sentencing is principally a discretionary function in which the trial court's judgment should receive considerable deference." Cardwell v. State , 895 N.E.2d 1219, 1222 (Ind. 2008). "Such deference should prevail unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character)." Stephenson v. State , 29 N.E.3d 111, 122 (Ind. 2015). In conducting our review, our principal role is to leaven the outliers, focusing on the length of the sentence and how it is to be served. Foutch v. State , 53 N.E.3d 577, 580 (Ind. Ct. App. 2016). Ultimately, whether a sentence should be deemed inappropriate "turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case." Cardwell , 895 N.E.2d at 1224. The appellant bears the burden of persuading us that his sentence meets the inappropriateness standard. Bowman v. State , 51 N.E.3d 1174, 1181 (Ind. 2016).
[16] Regarding the nature of the offense, the advisory sentence is the starting point that the legislature has selected as an appropriate sentence for the crime committed. Fuller v. State , 9 N.E.3d 653, 657 (Ind. 2014). The bulk of Rivera's six-and-a-half-year aggregate term is attributable to his four-year sentence for his level 5 felony conviction for committing a battery against Deputy Wallace that resulted in bodily injury. The sentencing range for a level 5 felony is one to six years, with an advisory sentence of three years. Ind. Code § 35-50-2-6(b). A battery is a knowing or intentional touching of another person in a rude, insolent, or angry manner, Ind. Code § 35-42-2-1(c), and bodily injury is "any impairment of physical condition, including physical pain." Ind. Code § 35-31.5-2-29. Fortunately, Deputy Wallace did not suffer significant pain or physical injuries as a result of his altercation with Rivera, but that does not diminish the severity of his battery offense. When the deputy told him that he was going to be taken to jail on the outstanding warrant, Rivera restarted his vehicle and tried to drive off while the deputy was reaching for the gear shifter, attempted to gouge the deputy's eye with his thumb, and then reached for a pocketknife, which increased the potential for serious injury dramatically. Rivera has given us no compelling reason to reduce his slightly enhanced sentence for level 5 felony battery based on the nature of the offense.
[17] After Rivera fled from the traffic stop, he went on a one-man crime spree across Hamilton County, stealing Tim's wallet and truck in Noblesville, running a red light in Fishers, and crashing into a vehicle and a building. He then attempted to enter a vehicle stopped at an intersection and fled from Lieutenant Skaggs, who ultimately apprehended him. Rivera does not specifically challenge the length of the remaining sentences based on the nature of the corresponding offenses. He does suggest that running all sentences concurrently would be more appropriate, but "the question under Appellate Rule 7(B) is not whether another sentence is more appropriate; rather, the question is whether the sentence imposed is inappropriate." King v. State , 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). In any event, "[t]he basis for the gross impact that consecutive sentences may have is the moral principle that each separate and distinct criminal act deserves a separately experienced punishment." Hart v. State , 829 N.E.2d 541, 545 (Ind. Ct. App. 2005). We find nothing inappropriate about the trial court's imposition of consecutive sentences in this case.
[18] Rivera also argues that his sentence is inappropriate in light of his character. In doing so, he minimizes his criminal history. "Even a minor criminal history reflects poorly on a defendant's character for the purposes of sentencing." Smoots v. State , 172 N.E.3d 1279, 1290 (Ind. Ct. App. 2021). Rivera was born in January 1995. At the time of sentencing, he had accumulated three juvenile adjudications in New Jersey (for criminal trespass, manufacturing/distributing/possession with intent to deliver an unspecified illegal substance, and disorderly conduct/possession of an unspecified dangerous substance), two misdemeanor convictions in Indiana (for public intoxication and battery resulting in bodily injury), and one felony conviction in Indiana (for unlawful possession of a syringe). He has violated probation multiple times and currently faces pending charges and outstanding warrants for auto theft, residential entry, and resisting law enforcement. Rivera has committed increasingly serious crimes over the years, and he has repeatedly demonstrated a lack of respect for other persons, their property, and the criminal justice system. In sum, he has failed to persuade us that his sentence is inappropriate in light of his character, so therefore we affirm it.
Rivera claims that the presentence investigation report (PSI) states that he has "three (3) dependents for whom he pays $928.00 per month in child support and that his imprisonment will result in undue ... hardship to him or his dependents." Appellant's Br. at 27. In fact, the PSI states that Rivera "owes $928.00 per month in child support"; it does not state that he actually pays this amount. Appellant's App. Vol. 2 at 217 (emphasis added). The PSI also states that the mother of two of Rivera's children prohibited him from seeing them because she "believed him to be abusing drugs." Id. at 216.
[19] Affirmed.
Bradford, C.J., and Tavitas, J., concur.