ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUSAN K. CARPENTER STEVE CARTER
Public Defender of Indiana Attorney General of Indiana
LORRAINE L. RODTS CHRISTOPHER C.T. STEPHEN
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
COURT OF APPEALS OF INDIANA
JAMES C. MESAROSH, II, )
vs. ) No. 51A01-0302-CR-56
STATE OF INDIANA, )
APPEAL FROM THE MARTIN CIRCUIT COURT
The Honorable R. Joseph Howell, Judge
Cause No. 51C01-0206-FC-102
January 12, 2004
OPINION - FOR PUBLICATION
James C. Mesarosh, II appeals his conviction for escape
See footnote as a Class C
felony, raising a number of issues for review. We need not address
most of them, because our resolution of the following issue renders them moot:
whether sufficient evidence supports Mesaroshs conviction where, at the time of his
flight, the apprehending officer allowed Mesarosh to drive his own car and perform
errands prior to being taken into custody.
We reverse and remand with instructions.
FACTS AND PROCEDURAL HISTORY
On May 26, 2002, Deputy Town Marshal Todd Eckert saw Mesarosh walking towards
his truck. Because Eckert knew that a court had issued a writ
of body attachment for Mesarosh, he initiated a traffic stop shortly after Mesarosh
began to drive away. He approached Mesarosh and informed him that he
was arresting him. Mesarosh argued, but Eckert insisted. Mesarosh asked Eckert
if he could first take his passenger home and move his truck.
Eckert agreed, but told Mesarosh that he would be going to jail immediately
thereafter. Eckert allowed Mesarosh to drive his truck while he followed a
car length behind in his police car.
Mesarosh delivered his passenger, then drove his truck to the parking lot of
an apartment complex. He parked the truck, got out, and ran.
Eckert ordered him to stop, but Mesarosh continued running. Eckert sought assistance,
but none was available, so he gave up the pursuit. Mesarosh was
apprehended a few months later and charged with escape as a result of
these events. Mesarosh was tried by a jury. After the jury
returned a guilty verdict, the trial court entered conviction and sentenced Mesarosh to
an enhanced sentence of six years of imprisonment. Mesarosh now appeals.
DISCUSSION AND DECISION
Mesarosh contends that the evidence was insufficient to support his conviction for escape
as a Class C felony. Specifically, he argues either that he was
not in detention at the time of his flight or that he did
not know he was under detention and therefore did not purposefully flee.
When reviewing a claim of insufficient evidence, we neither reweigh evidence nor judge
the credibility of witnesses. Anglin v. State, 787 N.E.2d 1012, 1015 (Ind.
Ct. App. 2003). We consider only the evidence that is favorable to
the judgment along with the reasonable inferences to be drawn therefrom to determine
whether there was sufficient evidence of probative value to support a conviction.
IC 35-44-3-5(a) provides that a person who intentionally flees from lawful detention commits
escape, a Class C felony. Our supreme court has previously held that
a person is lawfully detained within the meaning of the escape statute when
a police officer places him or her in handcuffs pursuant to a writ
of body attachment. Leshore v. State, 755 N.E.2d 164, 165 (Ind. 2001).
Here, however, Eckert failed at any time to handcuff or physically restrain
Mesarosh. Thus, we must look to other indicia to determine whether Mesarosh
was lawfully detained at the time he fled.
IC 35-41-1-18(a) details the situations that constitute lawful detention, including arrest, custody following
surrender in lieu of arrest, and any detention for law enforcement purposes, among
See footnote IC 35-33-1-5, in turn, defines arrest as the taking of a
person into custody, that he may be held to answer for a crime.
Courts have explained that an arrest has occurred when a police officer
interrupts the freedom of the accused and restricts his or her liberty of
Peterson v. State, 250 Ind. 269, 272, 234 N.E.2d 488, 490
(1968); Gibson v. State, 733 N.E.2d 945, 953 (Ind. Ct. App. 2000).
By contrast, custody is not statutorily defined. However, a common law definition
of custody has developed in the context of when Miranda
See footnote warnings are required.
Echoing the common law definition of arrest, courts have held that a
person is in custody if the individuals freedom has been deprived in a
significant way or if a reasonable person in the circumstances would believe that
he or she is not free to leave.
Gibson, 733 N.E.2d at
953. Here, Eckert testified that he was on routine patrol when he saw a
parked truck that he knew was Mesaroshs. He was aware that there
had been a warrant issued for Mesaroshs arrest, so he kept an eye
out for Mesarosh. Transcript at 116. He observed Mesarosh heading toward
his truck, and he notified the dispatcher that he would be placing Mesarosh
in custody. In the meantime, Mesarosh had entered his truck and begun
to drive away. Eckert pulled his car behind Mesaroshs truck, turned on
his cars lights, and initiated a traffic stop. Both men got out
of their cars and approached each other. Eckert informed Mesarosh that there
was a warrant issued for his arrest, and that Eckert was going to
take him into custody at that time, and take him to the jail.
Transcript at 121. Mesarosh pleaded with Eckert to let him go
and promised that he would turn himself in the following morning, but Eckert
advised him that this was not possible. Mesarosh continued to argue with
Eckert. Eckert testified that Mesarosh eventually agreed to be arrested, but asked
if he could first take his truck back to his home first.
Eckert agreed and told Mesarosh that he would follow him to drop off
the truck. Mesarosh then indicated that he also needed to drop off
his passenger. Eckert advised him that he was under arrest, but agreed
to let Mesarosh drop off his passenger and return his truck to his
Eckert followed Mesarosh by one car length into town while Mesarosh dropped off
his passenger and then drove to the parking lot of an apartment complex.
Mesarosh pulled his vehicle into a parking space, and Eckert pulled his
police vehicle behind the space to block Mesarosh. Mesarosh exited and locked
his truck. Eckert retrieved a copy of the arrest warrant and began
to open the door of his vehicle when he observed Mesarosh begin running
in the opposite direction. Eckert did not give chase, but stayed on
the scene for ten to fifteen minutes. Mesarosh was eventually arrested several
Based on these facts, we conclude that when Eckert initiated the traffic stop
and informed Mesarosh that he would be taking him to jail pursuant to
the body attachment, Mesaroshs freedom of movement was restricted such that he was
lawfully detained. However, that detention ended when Eckert allowed Mesarosh to leave
the scene of the detention driving his truck. It stretches the definition
of arrest to include situations, like this, where the defendants freedom of movement
is for all practical purposes unrestrained. Accordingly, we conclude that Mesarosh was
not under arrest at the time he fled.
Detention also includes those situations in which the defendant surrenders in lieu of
arrest. Clearly, Mesarosh did not surrender. When initially detained by Eckert,
Mesarosh argued and negotiated for his continued freedom and only agreed to be
arrested after being allowed certain privileges. Accordingly, this definition of detention also
does not apply here.
The State cites this courts holding in Anglin, 787 N.E.2d at 1017, in
which we interpreted the any other detention for law enforcement purposes provision of
the statute. However, there, our analysis focused on who was performing the
detention. In that case, the defendant challenged his conviction for escape where
he fled after having been sentenced by the court at a hearing and
informed that his sentence would begin immediately. He argued that because he
had not yet been taken into custody by law enforcement officers, he could
not have committed escape. We explained that IC 35-41-1-18 does not explicitly
limit its application to situations in which a law enforcement officer has control
of an individual. We concluded that the defendant was in detention for
law enforcement purposes in that he was not free to leave the courthouse
as soon as he was informed that the sheriffs department personnel would pick
him up at the designated location. Accordingly, we found the evidence to
be sufficient to support the defendants conviction for escape. Id. Anglin
inapposite here because there is no question about who performed the detention.
The detention, to the extent that it existed, was undoubtedly performed by
a law enforcement officer. Accordingly, we find that this provision of the
statutory definition of lawful detention does not apply to this situation.
In this case, we conclude that Mesarosh was not lawfully detained at the
time he fled. Accordingly, we find the evidence insufficient to support his
conviction for escape as a Class C felony. This, however, does not
end our analysis under these circumstances. In some cases, we have reversed
a defendants conviction on an offense, but entered conviction on a lesser offense
that was clearly supported by the evidence.
See, e.g., Ritchie v. State,
243 Ind. 614, 624, 189 N.E.2d 575, 578-79 (1963) (reversing conviction of rape
based on insufficiency of evidence of element of penetration and entering conviction on
the lesser offense of sexual battery); Anderson v. State, 674 N.E.2d 184, 189-90
(Ind. Ct. App. 1996) (reversing and vacating judgment and sentence as to offense
of aggravated battery and remanding with instructions to enter judgment and sentence on
offense of battery with a deadly weapon).
Subsection (c) of IC 35-44-3-5 provides that a person who knowingly or intentionally
fails to return to lawful detention following temporary leave granted for a specified
purpose or limited period commits failure to return to lawful detention, a Class
D felony. Here, Eckert informed Mesarosh that he was under arrest, but
then granted him leave for the specific purpose of transporting his passenger and
parking his truck. After receiving this grant of leniency, Mesarosh fled on
foot instead of returning to Eckerts custody, as Eckert ordered him to stop.
The evidence clearly demonstrates that Mesarosh committed failure to return to lawful
detention, a Class D felony.
Thus, we reverse Mesaroshs conviction for escape as a Class C felony and
remand this case to the trial court with instructions to enter a judgment
of conviction against Mesarosh for failure to return to lawful detention and impose
Reversed and remanded with instructions.
BAILEY, J., and VAIDIK, J., concur.
See IC 35-44-3-5.
The other circumstances listed in the statute are clearly inapplicable here.
See Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602,
16 L.Ed.2d 694 (1966).