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Love v. State

Court of Appeals of Indiana

September 8, 2016

Royce Love, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the St. Joseph Superior Court Trial Court Cause No. 71D03-1308-FD-653 The Honorable J. Jerome Frese, Judge

          Attorney for Appellant Jeffrey E. Kimmell South Bend, Indiana

          Attorneys for Appellee Gregory F. Zoeller Attorney General of Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana

          Brown, Judge.

         [¶1] Royce Love appeals his convictions for mistreatment of a law enforcement animal and resisting law enforcement as class A misdemeanors. Love raises two issues, which we revise and restate as whether the evidence is sufficient to sustain his convictions.[1] We reverse.

         Facts and Procedural History

         [¶2] At around 4:00 a.m. on August 4, 2013, South Bend Police Officers Paul Daley and Christopher Deak were on patrol when they observed a white van, which was later determined to be driven by Love, drive through a red traffic light. The officers began following Love's van, saw him disregard a stop sign, and turned on the police car's emergency lights to initiate a traffic stop. Love continued to drive, and the officers then activated their siren. Love noticed the lights and siren but did not stop. His failure to stop required the presence of additional officers, who activated their lights and sirens, to join in the pursuit. These officers included, among others, Officer Greg Howard, Officer Erik Schlegelmilch, Officer Jonathan Gray, and Office Larry Sanchez. Some of the officers attempted a "rolling roadblock" by blocking Love's van with their police cars, but Love struck the vehicles and proceeded to lead officers on an approximate five minute chase. Transcript at 77. Eventually, the police were able to stop Love's van with Stop Sticks® in an alley near the city's downtown.[2] The officers' vehicles were equipped with cameras which recorded the pursuit and stop.

         [¶3] A portion of the events that occurred once Love was stopped in the parking area near his "mother's child's house" was captured on the in-car video recorder of Officer Kyle Bilinski. Id. at 233. The video shows that when Love's vehicle was stopped, the officers ordered him to exit the van and he exited the vehicle, raised his hands in the air, proceeded to place himself on all fours about five seconds after he exited the vehicle, and, after approximately ten additional seconds lay face down on the ground. The officers used tasers and deployed a police dog to effect his arrest.

         [¶4] On August 5, 2013, the State charged Love with Count I, resisting law enforcement (based on fleeing in a vehicle) as a class D felony; Count II, mistreatment of a law enforcement animal as a class A misdemeanor; and Count III, resisting law enforcement (based on forcibly resisting) as a class A misdemeanor.[3]

         [¶5] On August 10, 2015, the court held a jury trial at which Love represented himself pro se. The court heard testimony from South Bend Police Officers Daley, Howard, Schlegelmilch, Gray, and Sanchez. Each officer, with the exception of Officer Howard who was not present at the scene of Love's arrest, testified that Love did not comply with the officers' commands after he exited the van.

         [¶6] During the direct testimony of Officer Daley, the State introduced State's Exhibit 4A, a DVD recording of the vehicular police pursuit that was recorded from Officer Daley's police car. The court admitted the exhibit without objection, and it was played for the jury. Love cross-examined Officer Daley and introduced a DVD recording, Defendant's Exhibit A, from the in-car camera of Officer Bilinski of the scene in the alley where Love was eventually stopped and arrested by the police. The court admitted the exhibit without objection, and it was played for the jury. Love's exhibit shows that he exited the vehicle, raised his hands in the air, proceeded to place himself on all fours about five seconds after he exited the vehicle, and, after approximately ten additional seconds lay face down on the ground. The video depicts that, shortly thereafter, a struggle between the officers and Love ensued in which the officers used tasers and deployed a police dog to effect Love's arrest.

         [¶7] Officer Daley testified that, as he saw Love exit the vehicle, officers were ordering Love to the ground and that Love was "ignoring them and paying them no attention whatsoever . . . ." Transcript at 81. He added that, as Love "continued to disregard the officers' commands, a taser was deployed into his person to get him to stop walking away." Id. at 82. Officer Schlegelmilch testified that when Love was outside the vehicle he was given "loud verbal commands to lay on the ground, " that Love was "completely uncooperative, " that Love "would not lay on the ground, " and that he then "deployed [his] taser." Id. at 116. He stated that after he tased Love, Love snapped the taser wire, and that the dog was deployed. Officer Gray stated that Love "was not responding to their commands to get on the ground. At that point an officer deployed a taser." Id. at 131. Officer Sanchez, who is a K-9 officer, testified that he deployed the dog because "the taser was ineffective, " that he perceived Love to be "very agitated and irritated with the police officers on [the] scene, " that Love was "not complying with [the] officers, " and that the dog bit Love on the forearm. Id. at 145-146. Officer Sanchez stated that after that, Love began to squeeze the dog's upper chest and neck area, that he heard the dog "let out a yelp, " and that he struck Love "a couple times in the side of his torso" and "knee[d] [Love] in the head" in an effort to free the dog. Id. at 146-147. Officer Schlegelmilch also stated that he kicked Love three times to cause Love to release the dog, and that the third kick he delivered, which was directed at Love's head, eventually caused Love to release the dog. When Officer Sanchez returned to his vehicle he noticed that the dog had a "bite ring" on top of its head. Id. at 148. Officer Gray testified he eventually placed Love in handcuffs but Love "refused to give his hands, " "he kept his hands tight by his body, and it was very difficult to get them out from under him and place him into police custody, " and that Love "was kicking his feet." Id. at 133-134.

         [¶8] Love testified to his version of events. He stated that an officer approached his parked vehicle and told him to "get the F out of the car, " that he exited the vehicle, put his hands up, and lay face down on the ground. Id. at 234. He further testified that he put his hands up to be cuffed, that the officers then deployed a dog on him, that he was then tased and kicked by the officers, that the dog bit his arm, and that he tried only to protect himself from the dog. Id. at 235.

         [¶9] The jury found Love guilty of Counts I-III as charged. At sentencing, the court entered a judgment of conviction on Count I as a class A misdemeanor rather than as a class D felony. For each of his class A misdemeanor convictions, Love was sentenced to consecutive one year sentences with all of the time suspended to supervised probation.

         Discussion

         [¶10] The issue is whether the evidence is sufficient to support Love's convictions for mistreatment of a law enforcement animal and resisting law enforcement as class A misdemeanors.[4] When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh'g denied. Rather, we look to the evidence and the reasonable inferences therefrom that support the verdict. Id. "We will reverse a conviction, however, if the record does not reveal substantial evidence of probative value and there is a reasonable doubt in the minds of reasonably prudent persons." Clark v. State, 695 N.E.2d 999, 1002 (Ind.Ct.App. 1998), reh'g denied, trans. denied.

         [¶11] Additionally, the Indiana Supreme Court has held:

We recognize the rule that we may not weigh the evidence and may only review that evidence most favorable to the state to determine, on a sufficiency of the evidence question, whether we shall affirm or reverse the judgment of the trial court. Such appellate duty, of which we take cognizance, in far too many cases requires that we probe and sift the evidence. Thus, if as a result of our probing and sifting the evidence most favorable to the state, we determine that the residue of facts is so devoid of evidence of probative value and reasonable inferences adduceable therefrom, as to preclude guilt beyond a reasonable doubt, we should so declare. A failure to do so is a rejection of our duty as an appellate tribunal and tantamount to the enunciation of a rule that any evidence no matter how infinitesimal or inferences drawn therefrom, whether based on speculation or conjecture, would be sufficient to establish ...

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