Dori J. West appeals from her conviction for Class A misdemeanor resisting law enforcement. …
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. … 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.
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), along with ten other EST officers, executed the warrant at West’s home.
….
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!” … 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.
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. …
On November 10, 2014, the State charged West with Class A misdemeanor resisting law enforcement by fleeing. … The jury found West guilty as charged, and the trial court subsequently sentenced her to 365 days in jail, with 305 days suspended.
On appeal, West presents a number of colorable claims, each of which were preserved below. These include a Crim. Rule 4(C) issue, a challenge to the no knock warrant and the execution of the warrant, an issue regarding the exclusion of evidence, and a sufficiency of the evidence claim. Because we find the sufficiency claim dispositive, we do not reach the other issues.
….
Resisting law enforcement, as charged in this case, is defined as “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”. Ind. Code § 35-44.1-3-1(a)(3). West argues that the officers never ordered her to stop and that she was not fleeing from law enforcement when she walked toward the bedroom to protect her two-year-old grandson.
There is no statutory definition of criminal flight in this context. See Cowans v. State, 53 N.E.3d 540, 545 (Ind. Ct. App. 2016). This court, however, has indicated that flight in the context of the resisting statute “should be understood to mean a knowing attempt to escape law enforcement when the defendant is aware that a law enforcement officer has ordered him to stop or remain in place once there.” …
….
From the evidence admitted at trial, a reasonable jury could conclude that West was aware that the individuals who had just breached her home were police officers and that they wanted all the occupants, including her, to exit the residence. But there is no evidence from which a reasonable factfinder could conclude that West intended to flee, escape, or even unnecessarily prolong her exit from the home. Moreover, in the twenty seconds of chaos during which West is alleged to have fled from police by walking toward her grandson’s bedroom, there is no evidence that West was ordered to stop. Rather, upon forcing entry into the home, various officers shouted commands and “instructed everyone inside to exit.” Directing West to exit her home was not the same thing as ordering her to stop. …
Under the facts and circumstances presented in this case, we conclude that the State’s evidence was not sufficient to prove that West fled from the officers. We, therefore, reverse her conviction for resisting law enforcement and remand this case with instructions to vacate the judgment of conviction and sentence.
Judgment reversed and remanded.
Baker, J. and Bailey, J., concur.