Brown, J.
Royce Love appeals his convictions for mistreatment of a law enforcement animal and resisting law enforcement… We reverse.
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. … Eventually, the police were able to stop Love’s van with Stop Sticks® in an alley near the city’s downtown.
The officers’ vehicles were equipped with cameras which recorded the pursuit and stop.
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On August 10, 2015, the court held a jury trial at which Love represented himself pro se. …
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 . . ..” …
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.
The issue is whether the evidence is sufficient to support Love’s convictions for mistreatment of a law enforcement animal and resisting law enforcement…
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… The Indiana Supreme Court recently discussed the significance of video evidence in Robinson v. State, 5 N.E.3d 362 (Ind. 2014). …
… A question therefore arises regarding the point at which reviewing video evidence, as part of our appellate duty to probe and sift the evidence most favorable to the State to determine whether substantial evidence of probative value exists, becomes impermissible reweighing of evidence. For help answering that question, we find an opinion by the Court of Criminal Appeals of Texas, Carmouche v. State, 10 S.W.3d 323 (Tex. Crim. App. 2000), instructive.
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The court noted the applicable standard of review, in which “as a general rule, the appellate courts, including this Court, should give almost total deference to a trial court’s determination of the historical facts that the record supports especially when the trial court’s findings are based on an evaluation of credibility and demeanor.” Id. It then stated that, “[i]n the unique circumstances of this case, however, we decline to give ‘almost total deference’ to the trial court’s implicit findings,” noting that “the nature of the evidence presented in the videotape does not pivot ‘on an evaluation of credibility and demeanor’” and that, “[r]ather, the videotape presents indisputable visual evidence contradicting essential portions of Williams’ testimony.” …
This rule has since been stated that courts “give almost total deference to the trial court’s factual determinations unless the video recording indisputably contradicts the trial court’s findings.” State v. Houghton, 384 S.W.3d 441, 446 (Tex. App. 2012).
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Turning to Defendant’s Exhibit A, a video recording from the in-car camera of Officer Bilinski, we observe that it unambiguously shows that Love exited the vehicle, put his hands up, and lay face down on the ground, demonstrating his almost immediate compliance with the officers’ requests.
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The video also reveals that prior to the officers’ use of force, Love had not made threatening or violent actions towards the officers, but, in effecting the arrest, the officers nevertheless tased him twice and deployed a dog who bit him. …
As was the case in Carmouche, under these narrow circumstances we cannot blind ourselves to the videotape evidence simply because the officers’ testimony may, by itself, support the guilty verdicts. Based upon the record, we cannot say that the officers were acting in the lawful performance of their duties or that Love was forcibly resisting when they tased Love and deployed the dog, and therefore the evidence is insufficient to support Love’s convictions for resisting law enforcement and mistreatment of a law enforcement animal. …
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Reversed.
Baker, J., concurs.
Pyle, J., dissents with separate opinion.
If I were presented with the script of the latest Star Wars movie, The Force Awakens, before it was released, and asked whether it was a good story, I could probably make an independent assessment concluding that it was excellent.
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Jurors are in the best position to make determinations about who and what to believe. …
In my view, there was ample evidence from which a jury could reasonably infer beyond a reasonable doubt that Love interfered with a law enforcement animal and resisted law enforcement. It is the jury’s role to resolve any real or perceived conflicts in the evidence. …
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… Because I believe that my colleagues are substituting their judgment for that of the jury, I dissent. I would affirm the jury’s verdict. Why? Quite simply, I was not at the movie.