Court of Appeals of Indiana | Opinion 03A04-1612-CR-2911 | July 20, 2017 Page 1 of 14

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

IN THE

COURT OF APPEALS OF INDIANA

Dustin A. Evans,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 20, 2017

Court of Appeals Case No.

03A04-1612-CR-2911

Appeal from the Bartholomew 

Superior Court

The Honorable James D. Worton, 

Judge

Trial Court Cause No.

03D01-1511-F5-5914

Riley, Judge.
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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 
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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, 
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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 Instructions

[8] Evans argues that the trial court committed a fundamental error when 

instructing the jury. Specifically, Evans contends the jury instructions relating 

to the escape charge did not properly convey the appropriate mens rea

requirements. 

[9] The manner of instructing a jury is left to the sound discretion of the trial court. 

Patton v. State, 837 N.E.2d 576, 579 (Ind. Ct. App. 2005). When reviewing the 

jury instructions, we consider them as a whole and in reference to each other. 

Id. We will not reverse the ruling of the trial court unless the jury instructions, 

taken as a whole, misstate the law or mislead the jury. Id. Before a defendant 

is entitled to a reversal, he must affirmatively show that the erroneous 

instruction prejudiced his substantial rights. Id.

[10] We note, and Evans aptly points out, that he failed to object to the trial court’s 

jury instructions relating to the escape charge. A defendant who fails to object 

to a jury instruction at trial waives any challenge to that instruction on appeal, 

unless giving the instruction was fundamental error. Wright v. State, 730 N.E.2d 
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713, 716 (Ind. 2000). To avoid waiver, Evans argues that the presumed 

instructional errors constitute fundamental error. Fundamental error is error 

that represents a blatant violation of basic principles rendering the trial unfair to 

the defendant, thereby depriving the defendant of fundamental due process. 

Ritchie v. State, 809 N.E.2d 258, 273 (Ind. 2004) (citation omitted). The error 

must be so prejudicial to the rights of the defendant as to make a fair trial 

impossible. Id. In determining whether a claimed error denies the defendant a 

fair trial, we consider whether the resulting harm or potential for harm is 

substantial. Id. The element of harm is not shown by the fact that a defendant 

was ultimately convicted. Id. at 273-74. Rather, it depends upon whether the 

defendant’s right to a fair trial was detrimentally affected by the denial of 

procedural opportunities for the ascertainment of truth to which he would have 

been entitled. Id. at 274.

[11] Indiana Code Section 35-44.1-3-4(a) states, “A person . . . who intentionally flees 

from lawful detention commits escape, a Level 5 felony” (emphasis added).

Final jury instructions number 5 and 15 both indicated that the crime of escape 

as charged in Count I is defined by statute as “[A] person who knowingly or 

intentionally flees from lawful detention.” (Appellant’s App. Vol. II, p. 57, 86) 

(emphasis added). Evans argues the alternative mens rea of ‘knowingly’ is not 

mentioned in Indiana Code Section 35-44.1-3-4(a). While the State agrees the 

improper mens rea of knowingly, as added in final jury instructions number 5 

and 15, was a misstatement of the law, the State posits that the instructional 

errors did not result in an unfair trial since the intent element was not a central 
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issue at Evans’ trial. In support of its claim, the State cites Winkleman v. State, 

22 N.E.3d 844, 852 (Ind. Ct. App. 2015), trans. denied, where we held that an 

“error in an instruction on mens rea does not rise to the level of fundamental 

error where the defendant’s mens rea was not a central issue at trial.” 

[12] In determining the instant issue, we find Ramsey v. State, 723 N.E.2d 869, 871-

73 (Ind. 2000), instructive. In Ramsey, our supreme court found no 

fundamental error in the following jury instruction:

A person attempts to commit murder when, acting with the 

culpability required for commission of Murder, he engages in 

conduct that constitutes a substantial step toward commission of 

Murder; which is to knowingly or intentionally kill another 

human being. The crime of attempted murder is a Class A felony.

To convict the defendant of Attempted Murder under Count I, 

the State must prove each of the following elements:

1. The defendant

2. knowingly

3. with specific intent to kill

4. engaged in conduct

5. which was a substantial step toward the commission of the 

crime of Murder; which is to knowingly or intentionally kill 

another human being.
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If the State fails to prove each of these elements, you should find 

the defendant not guilty.

If the State does prove each of these elements beyond a 

reasonable doubt, you should find the defendant guilty of the 

crime of Attempted Murder, a Class A felony.

Id. at 871. The supreme court concluded:

The trial court should not have included the word “knowingly” 

in either the first sentence or the enumerated elements. But this 

language was not objected to and we narrowly conclude that no 

fundamental error has been established. First, despite the 

instruction’s defects, the trial court enumerated “specific intent to 

kill” among the elements that the State was required to prove 

beyond a reasonable doubt. Second, the trial court read the jury 

the charging information which contains the proper mens rea. 

Because the correct mens rea was enumerated both as an element 

in the charging instrument and as an element that the State was 

required to prove beyond a reasonable doubt, we believe that the 

jury instructions, taken as a whole, sufficiently informed the jury 

of the State’s burden of proving that the Defendant specifically 

intended to kill the victim. 

Id. at 873.

[13] In the instant case, the trial court instructed the jury as follows:

PRELIMINARY INSTRUCTION NO. 5 

The crime of Escape charged in Count [I] is defined by statute as

follows:
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A person who knowingly or intentionally flees from lawful

detention commits [e]scape, a Level 5 felony.

(Appellant’s App. Vol. II p. 57). In addition, the trial court’s Final Instruction 

No. 15 stated:

The crime of [e]scape charged in Count [I] is defined by law as 

follows:

A person who knowingly or intentionally flees from lawful 

detention commits [e]scape, a Level 5 felony.

Before you may convict the Defendant, the State must have 

proved each of the following beyond a reasonable doubt:

1. The Defendant

2. Knowingly or intentionally

3. Fled from lawful detention

If the State failed to prove each of these elements beyond a 

reasonable doubt, you must find the Defendant not guilty of 

[e]scape, a Level 5 felony, as charged in Count [I]. 

(Appellant’s App. Vol. II, p. 86). Evans argues that it is clear from reading 

these two instructions, and comparing them to Indiana Code section 35-44.1-3-

4(a), that the trial court erroneously instructed the jury about the requisite mens 

rea required to convict Evans of the escape charge. We disagree.
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[14] Comparing the present case to Ramsey, assuming ‘knowingly’ was not included 

in the jury instructions with respect to the escape charge, we find that the escape 

instructions in the present case sufficiently informed the jury of the proper mens 

rea which the State was required to prove beyond a reasonable doubt. We 

recognize that the correct mens rea, intent to flee, was listed during the State’s 

closing argument, final instructions to the jury, and charging information. We 

first note that in the State’s closing arguments, the State expressed that [Evans] 

intentionally fled . . . from [] Officer [Bostock].” (Tr. Vol. II, p. 81). The State 

impressed upon the jury that “the issue that you have to decide is whether or 

not he fled from lawful detention, and it’s pretty clear that he did . . . Evans was 

in lawful detention and he fled.” (Tr. Vol. II, p. 87). Secondly, while

instructing the jury, the trial court advised that

A person engages in conduct “intentionally” if, when he engages 

in the conduct, it is his conscious objective to do so. If a person 

is charged with intentionally causing a result by his conduct, it 

must have been his conscious objective not only to engage in the 

conduct but also to cause the result.

(Tr. Vol. II, p. 90). Finally, the trial court read to the jury, the charging 

information which contained the proper mens rea—i.e., “on or about November 

17, 2015, in Bartholomew County, State of Indiana, [] Evans, did intentionally

flee from lawful detention.” (Tr. Vol. II, p. 97).

[15] Although the improper knowingly language is problematic, we find that the 

instructional error did not render a fair trial impossible for Evans. See Sanders v. 

State, 764 N.E.2d 705, 711-12 (Ind. Ct. App. 2002). Upon our reading of the 
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escape jury instructions and also in the context of all the information given to 

the jury, we conclude that the trial court’s escape instructions informed the jury 

that the State was required to prove beyond a reasonable doubt that Evans 

intentionally fled from lawful custody. Finding that Evans has failed to 

establish that he was deprived of a fair trial as a result of the challenged jury 

instructions, we conclude that the error did not rise to the level of fundamental 

error.

II. Consecutive Sentences

[16] Evans also contends that the trial court abused its discretion in imposing 

consecutive sentences, arguing that it was prevented from doing so because his 

convictions for escape and unlawful possession of a syringe arose from a single 

episode of criminal conduct.

[17] In general, a trial court cannot order consecutive sentences in the absence of 

express statutory authority. Reed v. State, 856 N.E.2d 1189, 1199 (Ind. 2006). 

“‘A sentence that is contrary to or violative of a penalty mandated by statute is 

illegal in the sense that it is without statutory authorization.’” Id. (quoting 

Rhodes v. State, 698 N.E.2d 304, 307 (Ind. 1998)). “An appellate claim of 

sentencing error is subject to review for abuse of trial court discretion; reversal 

results ‘only if there has been a manifest abuse of discretion.’” Reynolds v. State,

657 N.E.2d 438, 440 (Ind. Ct. App. 1995) (quoting Fugate v. State, 608 N.E.2d 

1370, 1374 (Ind. 1993)).
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[18] Indiana Code section 35-50-l-2(c)(2) provides that except for statutory crimes of 

violence—which escape and unlawful possession of a syringe are not—“the 

total of the consecutive terms of imprisonment . . . to which the defendant is 

sentenced for felony convictions arising out of an episode of criminal conduct 

shall not exceed the advisory sentence for a felony which is one (1) class of 

felony higher than the most serious of the felonies for which the person has 

been convicted.” The term “episode of criminal conduct” has been statutorily 

defined as “offenses or a connected series of offenses that are closely related in 

time, place, and circumstance.” I.C. § 35–50–1–2(b). “Whether certain 

offenses constitute a single episode of criminal conduct is a fact-sensitive 

inquiry to be determined by the trial court before it is subject to appellate 

review. Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002).

[19] Evans claims that the events for his crimes constituted a single episode and cites 

to Purdy v. State, 727 N.E.2d 1091 (Ind. Ct. App. 2000). trans. denied. In Purdy, 

the defendant went to the house of his former girlfriend despite a court’ order 

not to have contact with her. Id. at 1092. The defendant pounded on her door 

and threatened to kick it in. Id. The former girlfriend, who did not have a 

telephone in her house, tried to run next door to use the telephone at the Village 

Pantry. Id. The defendant, however, grabbed her by the shoulders, bruising 

her. Id. When the police arrived, and attempted to handcuff the defendant, he 

fought back—kicked and spat at the officers, and attempted to flee. Id. As the 

officers placed the defendant in a vehicle, he threatened to kill one of them. Id.

The State charged the defendant with felony intimidation, resisting law 
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enforcement, and battery. Id. The Purdy court held that the defendant’s actions 

constituted a single episode because “all of his actions took place during a 

relatively short period of time and all were related to his assault on [his former 

girlfriend].” Id. at 1093. 

[20] The State, in turn, claims that the Purdy case is not instructive because unlike in 

Purdy, where the events took place during a relatively short period of time, the 

facts of the instant case demonstrate a break in the sequence of events. In 

support, the State cites to our decision in Newman v. State, 690 N.E.2d 735 (Ind. 

Ct. App. 1998). In Newman, police officers were dispatched to a tavern in 

response to a burglary report. Id. at 736. When they arrived, the defendant was 

sitting in his car in the tavern parking lot. Id. The officers stopped in front of 

the defendant’s vehicle and ordered him three times to get out of his car. Id. 

The defendant refused to get out of his car and sped away from the police. Id. 

The police officers pursued the defendant’s vehicle until he ultimately crashed 

into a cement wall. Id. Following the crash, the officers discovered cigarettes 

and money taken by the defendant from the tavern. Id. They placed the 

defendant under arrest and summoned an ambulance to transport the defendant 

to a hospital for the treatment of the injuries he received in the crash. Id. After 

the defendant and the officers arrived at the hospital, hospital personnel 

requested that the defendant not be handcuffed in order that he be properly 

treated. Id. When no officer was present in the treatment room, the defendant 

managed to flee down the hospital corridor as hospital personnel yelled for 

assistance. Id. Police officers recaptured the defendant and subsequently 
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transported him to jail. Id. The defendant pled guilty to burglary, theft, escape, 

resisting law enforcement, and driving while suspended. Id. The Newman court

found that the defendant’s actions constituted three separate episodes: burglary 

and theft, being the first distinct episode; resisting law enforcement and fleeing, 

as the second distinct episode; and escape in the hospital, as the third distinct 

episode. Id. at 737. The Newman court concluded that each of these episodes 

was sufficiently unrelated and each could have been described independently 

without referring to the specific details of the other episodes. Id. As such, the 

Newman court held that the defendant’s crimes were committed during three 

distinct episodes of criminal conduct. Id.

[21] Here, Evans was sentenced to six years for the escape offense and two years for 

the unlawful possession of a syringe, with sentences to be served consecutively. 

Notwithstanding Evans’ contention that his offenses constituted a single 

episode of criminal conduct, we find that like the defendant in Newman, and 

unlike the defendant in Purdy, Evans engaged in distinct episodes of criminal 

conduct. Specifically, following a search of his backpack after his arrest in the 

early morning of November 17, 2015, Evans was found in possession of 

syringes. Evans was then transported to the county jail, and prior to being 

booked, Evans complained that he was not feeling well. Based on these 

complaints, Evans was transported by Officer Bostock to Columbus Regional 

Hospital. After Evans received treatment and was cleared by the hospital 

personnel, Officer Bostock placed handcuffed Evans in the back of her patrol 

car. On his return trip to the county jail, Evans violently kicked the door, 
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which made Officer Bostock stop the vehicle. Moments later, Evans effectively

kicked the door open and escaped. In light of the foregoing, we conclude that a 

full account of Evans’s individual crimes can be given without reference to the 

other. Because the crimes of unlawful possession of syringes and escape were 

two separate criminal episodes, the trial court did not abuse its discretion when 

it ordered the sentences for each offense to be served consecutive to one 

another.

CONCLUSION 

[22] Based on the foregoing, we conclude that there was no fundamental error in the 

trial court’s jury instruction for Evans’ escape charge; and the trial court did not 

abuse its discretion in ordering consecutive sentences for Evans’ offenses. 

[23] Affirmed. 

[24] Najam, J. and Bradford, J. concur