Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020 Page 1 of 11

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

R. Patrick Magrath

Alcorn Sage Schwartz &

Magrath, LLP

Madison, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Thomas J. Flynn

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Shawn Marshall,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

January 30, 2020

Court of Appeals Case No.

19A-CR-1746

Appeal from the Decatur Superior 

Court

The Honorable Matthew D. 

Bailey, Judge

Trial Court Cause No.

16D01-1903-F6-403

Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1746 | January 30, 2020 Page 2 of 11

[1] Shawn Marshall appeals his convictions and sentence for Level 6 Felony 

Resisting Law Enforcement1 and Level 5 Felony Escape,2 arguing that the 

evidence is insufficient to support the convictions and that the sentence is 

inappropriate in light of the nature of the offenses and Marshall’s character. We 

find the evidence to be sufficient and that the sentence is not inappropriate, but 

that double jeopardy principles prohibit allowing both convictions to stand. As 

such, we affirm the conviction and sentence for Level 5 Felony Escape, and 

remand with instructions to vacate the conviction of Level 6 Felony Resisting 

Law Enforcement.

Facts

[2] On March 28, 2019, Decatur County Sheriff’s Deputy Patrick Graue detected a 

vehicle traveling seventy-seven miles per hour in a fifty-five-miles-per-hour zone

on State Road 3/46 at County Road 450 West. Deputy Graue turned on his 

emergency lights and initiated a routine traffic stop. Upon approaching the 

stopped vehicle, Deputy Graue encountered Marshall as the driver. When he 

requested Marshall’s license and registration, Deputy Graue smelled burnt 

marijuana, but he refrained from immediately questioning Marshall and instead 

went back to his own vehicle to check the license and registration through 

dispatch. 

 

1

Ind. Code § 35-44.1-3-1(a)(3), -(c)(1)(A).

2

I.C. § 35-44.1-3-4(a).
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[3] While checking Marshall’s license and registration, Deputy Graue learned of 

Marshall’s extensive criminal history and requested that a second deputy be 

sent to the scene. Deputy Kevin Rohr arrived soon thereafter, and the two 

deputies then approached Marshall’s vehicle together. At that point, Deputy 

Graue informed Marshall that he smelled burnt marijuana coming from the 

vehicle and asked if there was anything illegal inside the vehicle. In response, 

Marshall “be[came] irate” and accused Deputy Graue of “harassing him” and 

“trying to frame him.” Tr. Vol. II p. 55. The two deputies calmly ordered 

Marshall to exit his vehicle and explained that they were going to perform a 

probable cause search of the vehicle. But Marshall refused to exit the vehicle, 

and he repeatedly stated “you’re not searching my car” and that he did not give 

his consent to a search. Id. at 56. The deputies continued to calmly try to order

Marshall to get out of the car, explaining again that the odor of burnt marijuana 

emanating from the interior of the car gave them probable cause to search, but 

that if no illegal substance was found, Marshall would be free to go. 

[4] Despite these orders, “[Marshall’s] hostility continued to escalate.” Id. at 57. 

Deputy Graue began to request that another officer be dispatched to the scene.

But, as he was doing so, he “observed Mr. Marshall take his stare off Deputy 

Rohr and . . . began looking straight ahead as his right hand went down to the 

gearshift, placing his vehicle into forward motion.” Id. The two deputies 

shouted for Marshall to stop, but Marshall instead proceeded to accelerate the 

vehicle and drove at a high speed down the road and away from the traffic stop. 
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[5] Both deputies returned to their vehicles and initiated emergency pursuit of 

Marshall, following him for approximately two miles before Marshall suddenly 

pulled over and parked on the side of the highway. The deputies approached his 

vehicle with their service weapons drawn and ordered Marshall out of the car. 

Marshall finally complied and was promptly placed under arrest.

[6] The same day, the State charged Marshall with one count of Level 6 felony 

resisting law enforcement. On April 26, 2019, the State moved to amend the 

charging information by adding one count of Level 5 felony escape, and the

trial court granted the motion on April 29, 2019. A jury trial was held on June 

3, 2019, at the conclusion of which the jury found Marshall guilty on both 

counts. At a sentencing hearing held on June 28, 2019, the trial court sentenced 

Marshall to two and one-half years for resisting law enforcement and six years 

for escape, to be served concurrently, for an aggregate sentence of six years fully 

executed. Marshall now appeals. 

Discussion and Decision

I. Double Jeopardy

[7] At the outset, we must confront a double jeopardy problem. The State concedes 

the issue and asks that we vacate the conviction for resisting law enforcement.

[8] Under Article 1, Section 14 of the Indiana Constitution, “[n]o person shall be 

put in jeopardy twice for the same offense.” This has been interpreted by our 

Supreme Court to mean “that two or more offenses are the ‘same offense’ in 

violation of Article 1, Section 14 of the Indiana Constitution if, with respect to 
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either the statutory elements of the challenged crimes or the actual evidence used 

to convict, the essential elements of one challenged offense also establish the 

essential elements of another challenged offense.” Richardson v. State, 717 

N.E.2d 32, 49 (Ind. 1999) (emphases in original). 

[9] Marshall argues, and the State readily agrees, that the convictions for both 

resisting law enforcement and escape are based upon the same actual evidence. 

We agree. As such, both convictions cannot stand without violating double 

jeopardy principles. We therefore remand with instructions to vacate the Level 

6 felony resisting law enforcement conviction. 

II. Sufficiency of the Evidence

[10] Next, Marshall argues that the evidence is insufficient to support either the 

resisting law enforcement conviction or the escape conviction.3In reviewing the 

sufficiency of the evidence to support a conviction, we must consider only the 

probative evidence and the reasonable inferences supporting the conviction, and 

we will neither assess witness credibility nor reweigh the evidence. Drane v. 

State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm unless no reasonable 

factfinder could find the elements of the crime proved beyond a reasonable 

doubt. Id.

 

3 Because we have ordered the resisting law enforcement conviction to be vacated, we need not and will not 

address the evidence supporting that conviction. 
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[11] To convict Marshall of escape, the State had to prove beyond a reasonable 

doubt that Marshall 1) intentionally 2) fled 3) from lawful detention. I.C. § 35-

44.1-3-4(a). Marshall’s conduct was unquestionably intentional. “A person 

engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his 

conscious objective to do so.” Ind. Code § 35-41-2-2(a). We agree with the State 

that “[p]utting one’s vehicle in drive and pressing down on the gas pedal is a 

volitional act. A vehicle doesn’t just drive away by itself. It requires intent by 

the driver to operate in such a fashion.” Appellee’s Br. p. 16. 

[12] With regards to the fleeing and lawful detention elements, Marshall argues that 

the evidence does not support a conclusion that he was detained before he 

drove away. Specifically, he contends that, because he was never placed in 

handcuffs, put in jail, or otherwise physically restrained, he was not lawfully 

detained for purposes of the escape offense. He also emphasizes that he was not 

explicitly told he was being detained, advised of his rights, or asked for his 

consent before he drove away from the traffic stop.

[13] In the traffic stop context, Indiana Code section 34-28-5-3 authorizes detention 

by a law enforcement officer of a person who the officer in good faith believes 

has committed an infraction or ordinance violation. Indiana Code section 35-

31.5-2-186 enumerates a list of circumstances that qualify as “lawful detention,” 

which includes the types of detention cited by Marshall—arrest, being placed in 

jail, and so forth—as well as “any other detention for law enforcement 

purposes.” Our Court has interpreted this catch-all provision to mean that a 

person can be lawfully detained even if they are not subject to the types of 
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restraint Marshall points out were lacking in his case. Rather, “what is critical 

in determining the meaning of ‘any other detention for law enforcement 

purposes’ is that an individual is being detained so that he is subject to 

legitimate law enforcement purposes.” Anglin v. State, 787 N.E.2d 1012, 1017 

(Ind. Ct. App. 2003). 

[14] In Anglin, the Court found that the defendant had been subject to lawful 

detention for purposes of the escape statute where he exited the courthouse after 

being ordered by the trial court to wait in the hallway for transportation to jail 

to serve the sentence he had just been ordered to serve. “Anglin was ‘detained’ 

by the trial court in that he was not free to leave the building as soon as he was 

informed that the Sheriff’s Department would pick him up at the designated 

location in the courthouse. That Anglin was not in the physical custody of the 

transport officer at the time that he fled does not exclude the conclusion that he 

was in ‘detention for law enforcement purposes.’” Id.

[15] Here, the same logic can be applied to Marshall: though not under the physical 

control of the deputies, he was nonetheless being detained for the law 

enforcement purposes of conducting a traffic stop and a probable cause search 

of his vehicle, and the officers repeatedly informed him of such and ordered 

him out of his vehicle. There was no indication at the time Marshall drove 

away that he was free to go; the officers even told him as much when they 

explained that he would only be free to go following the vehicle search if no 

illegal substances were found. As such, we find that Marshall was subject to 
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lawful detention at the time he fled the scene, and that all elements of the 

escape offense are therefore supported by sufficient evidence. 

III. Sentence

[16] Marshall next argues that his sentence is inappropriate in light of the nature of 

the offense and his character. Indiana Appellate Rule 7(B) provides that this 

Court may revise a statutorily authorized sentence “if, after due consideration 

of the trial court’s decision, the Court finds that the sentence is inappropriate in 

light of the nature of the offense and the character of the offender.” In 

conducting this review, “substantial deference” must be given to the trial court’s 

decision, “since the ‘principal role of [our] review is to attempt to leaven the 

outliers,’ and not to achieve a perceived ‘correct’ sentence.” Knapp v. State, 9 

N.E.3d 1274, 1292 (Ind. 2014) (quoting Chambers v. State, 989 N.E.2d 1257, 

1259 (Ind. 2013)) (internal citations omitted). The defendant bears the burden 

of proving that the sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 

1080 (Ind. 2006).

[17] For Level 5 felony escape, Marshall faced a term of one to six years, with an 

advisory sentence of three years. Ind. Code § 35-50-2-6(b). The trial court 

imposed a maximum six-year term.

4

 

4 Because both sentences were ordered to be served concurrently, our instructions to vacate the resisting law 

enforcement conviction—which carried the lesser of the two sentences—will impact neither the length of the

sentence nor our analysis regarding its inappropriateness.
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[18] With respect to the nature of the offense, Marshall sped away from the officers 

in a manner that forced Deputy Rohr to quickly back up into oncoming traffic 

to avoid being harmed by Marshall’s moving vehicle. Though Deputy Rohr was 

not injured, Marshall’s actions nonetheless endangered the life of another 

human. The offense also demonstrated a high lack of respect for law 

enforcement, as Marshall blatantly ignored orders and became increasingly

hostile and angry with officers despite their attempts to remain calm and keep 

the situation under control. 

[19] With respect to his character, we first note Marshall’s extensive criminal 

history. Marshall has been charged with over eleven felonies since 1990, and 

since 2004 has been convicted and sentenced for two additional felonies, 

robbery and battery resulting in bodily injury. Even now, all of the following 

felony charges are currently pending against Marshall for offenses that occurred 

on or after July 18, 2018: unlawful possession of a syringe, synthetic identity 

deception, possession of methamphetamine, maintaining a common nuisance

via controlled substances, and intimidation by way of threatening to commit a 

forcible felony. 

[20] Additionally, Marshall was out on bail for two of those felony charges when he 

committed the offense in this case. He was also on probation in Georgia at the 

time he committed the present offense and violated his probation by fleeing the 

state to come to Indiana and by committing additional offenses while on 

probation. 
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[21] Furthermore, Marshall’s behavior while in jail has been far from commendable. 

From March to June 2019, when Marshall was incarcerated in the Decatur 

County Detention Center, Marshall had fifteen separate disciplinary incidents 

and misconduct write ups, and he has been described as “a very aggressive 

inmate, aggressive towards other inmates and then towards other staff. He 

constantly violates security protocols and security violations.” Tr. Vol. II. p. 

129. Among other things, he has been written up for threatening to throw feces 

and bodily fluids on staff members, covering cameras and lights, flooding his 

cell, and getting into physical altercations, some of which involved makeshift 

weapons. See id. at 130-33. Marshall is also known to be a current member of a

gang and has been evaluated as having a high likelihood to reoffend. 

[22] Marshall argues that the chronological remoteness of much of his criminal 

history—with multiple charges and offenses occurring over ten years ago—and 

the difference in nature of those offenses from the present offense render the 

imposition of a maximum sentence inappropriate. While the chronological 

remoteness of prior criminal history should be taken into account, “we will not 

say that remoteness in time, to whatever degree, renders a prior conviction 

irrelevant,” and it is still within the trial court’s discretion to consider it an 

aggravating circumstance. Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002). 

And here, Marshall’s criminal history is not limited to those charges and 

convictions that are chronologically distant, but rather represents a

longstanding pattern, continuing into the present, of an irreverence towards the 
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law, aggressiveness towards others, and a complete lack of remorse and 

willingness to change his behavior. 

[23] We do not find the six-year maximum sentence imposed by the trial court to be 

inappropriate in light of the nature of the offense and Marshall’s character.

[24] The judgment of the trial court is affirmed and remanded with instructions to 

vacate the conviction for Level 6 felony resisting law enforcement. 

Riley, J., and Brown, J., concur.