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West v. State

Court of Appeals of Indiana

September 28, 2017

Dori J. West, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff

         Appeal from the Allen Superior Court The Honorable Frances Gull, Judge The Honorable Jason Custer, Magistrate Trial Court Cause No. 02D04-1610-CM-3878

          ATTORNEY FOR APPELLANT David L. Joley Fort Wayne, Indiana.

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana.

          ALTICE, JUDGE.

         Case Summary

         [¶1] Dori J. West appeals from her conviction for Class A misdemeanor resisting law enforcement. She raises a number of claims on appeal, of which we find the following dispositive: Did the State present sufficient evidence to support the conviction?

         [¶2] We reverse and remand.

         Facts & Procedural History

         [¶3] During the summer and fall of 2014, the Fort Wayne Police Department and the Allen County Drug Task Force were investigating a major drug ring involving the sale of synthetic drugs. The investigation included, among other things, a number of controlled drug buys in or around West's neighborhood. On September 16, 2014, West's eighteen-year-old son Brandon Bermingham delivered 1.55 grams of spice to a confidential informant. This transaction took place on the sidewalk in front of West's home.

         [¶4] On October 2, 2014, police sought and obtained search warrants for eight homes involved in the investigation. No-knock warrants were authorized with respect to most of these homes, including West's home where Bermingham was the target. At about 6:10 a.m. on October 6, 2014, Fort Wayne Police Officer Kevin Zelt, commander of the Emergency Services Team (EST), [1] along with ten other EST officers, executed the warrant at West's home. The officers were in police tactical gear and most were armed with shotguns or submachine guns. Officer Eric Krull, however, was armed with a non-lethal weapon called a 40-millimeter foam baton launcher.

         [¶5] As the EST encircled the property and prepared for entry, all was seemingly quiet inside West's home. Her eleven-year-old son was showering for school while she cooked breakfast. Her fiancé, Craig Cox, was asleep in a bedroom just off of the kitchen with West's two-year-old grandson. Cox's young teenage daughters were in the living room with their friend, who often came for breakfast before school. Bermingham was upstairs asleep.

         [¶6] Just before the EST was about to force entry, Cox's thirteen-year-old daughter heard something outside and opened the front door. Upon seeing the armed individuals outside in the dark, she quickly closed the door and ran for West, who emerged from the kitchen. The officer assigned to the battering ram then forced the door open into the living room and shouted: "Police! We have a warrant! We're coming in!" Transcript Vol. 1 at 157. At the same time, officers broke through the window into the living room. The next several seconds were chaotic, as multiple officers shouted commands for the occupants to come out.

         [¶7] West was standing in the hallway between the kitchen and the living room. She looked at the EST officers and then turned back toward the kitchen in an effort to reach her grandson still sleeping in the bedroom. Officer Krull observed West walking toward the dark bedroom and fired a foam baton at her. This occurred within about twenty seconds of entry by the EST. West fell to the ground and then quickly exited the home without incident. The three girls and Cox also exited and were detained outside. Thereafter, officers went inside and removed the two-year-old and eleven-year-old boys, as well as Bermingham.

         [¶8] On November 10, 2014, the State charged West with Class A misdemeanor resisting law enforcement by fleeing. After numerous delays and continuances, the case was dismissed on July 15, 2016, by motion of the State. Thereafter, on October 4, 2016, the State refiled the same charge under a new cause number. West filed a motion for discharge pursuant to Ind. Criminal Rule 4(C) on February 22, 2017. The trial court denied the motion and the case was tried before a jury on March 16, ...


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