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Evans v. State

Court of Appeals of Indiana

July 20, 2017

Dustin A. Evans, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal from the Bartholomew Superior Court Trial Court Cause No. 03D01-1511-F5-5914 The Honorable James D. Worton, Judge

          Attorney for Appellant Michael P. DeArmitt Columbus, Indiana

          Attorneys for Appellee Curtis T. Hill, Jr. Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana

          Riley, Judge.

         STATEMENT OF THE CASE

         [¶1] Appellant-Defendant, Dustin Evans (Evans), appeals his conviction for escape, a Level 5 felony, Ind. Code § 35-44.1-3-4(a); and unlawful possession of a syringe, a Level 6 felony, I.C. § 16-42-19-18(a).

         [¶2] We affirm.

         ISSUES

         [¶3] Evans presents two issues on appeal, which we restate as the following:

(1) Whether the trial court committed a fundamental error in instructing the jury; and
(2)Whether the trial court abused its discretion by ordering consecutive sentences.

         FACTS AND PROCEDURAL HISTORY

         [¶4] On November 17, 2015, at approximately 3:00 a.m., Officer Daniel Garvey (Officer Garvey) of the Edinburgh Police Department was dispatched to investigate the report of a suspicious man who was lurking in front of a residence. Upon arriving at the residence, Officer Garvey recognized the suspicious man as Evans due to previous encounters. Officer Garvey also knew that Evans had an active arrest warrant. At that point, Officer Garvey activated his lights and attempted to stop Evans. Evans fled, but was later stopped and apprehended by another officer who was nearby in his patrol vehicle. Evans was carrying a backpack, and pursuant to a search of the bag, Officer Garvey found a plastic pouch containing methamphetamine, a knotted sock containing five syringes, cotton balls, and a spoon with white residue. Officer Raina Bostock (Officer Bostock), who was at the scene, transported Evans to the Bartholomew County Jail. Before Evans was booked, he complained that he was not feeling well, and he notified the officers that he had swallowed three bags of heroin. Based on the complaints, Officer Bostock transported Evans to Columbus Regional Hospital. After receiving the necessary treatment, Evans was cleared by the medical personnel, and Officer Bostock secured Evans in handcuffs and placed him in her patrol vehicle. Evans' legs were not restrained.

         [¶5] On his return to the jail, Evans lay down on the backseat and began vomiting on the floorboard. Upon seeing this, Officer Bostock pulled over, exited, and she moved Evans so that his head would be positioned outside of the vehicle. After Evans stopped vomiting, she placed Evans in an upright position and strapped his seatbelt. As Officer Bostock was preparing to merge into traffic, she heard loud banging noises. When she turned around, she saw Evans kicking the passenger door with his legs. Officer Bostock put the vehicle into park and exited the vehicle. By this time, the door was open and Evans was running down the street. As she pursued Evans, she radioed for assistance. After an hour of searching in the surrounding areas, the officers abandoned the search. The record shows that Evans was rearrested several days thereafter.

         [¶6] On November 20, 2015, the State filed an Information, charging Evans with escape, a Level 5 felony; and unlawful possession of a syringe, a Level 6 felony. On October 4, 2016, Evans' jury trial was held. At the close of the evidence, the jury found Evans guilty as charged. On November 22, 2016, the trial court conducted Evans' sentencing hearing, and it thereafter sentenced Evans to consecutive executed sentences of six years for the escape conviction, and two years for the unlawful possession of a syringe.

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

         DISCUSSION AND DECISION

         I. Jury ...


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