Shoultz v. State

• Decision Date: 22 September 2000
• Docket Number: No. 82A01-9912-CR-436,82A01-9912-CR-436
• Parties: Greg W. SHOULTZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

735 N.E.2d 818

Greg W. SHOULTZ, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 82A01-9912-CR-436

Court of Appeals of Indiana.

September 22, 2000.

Rehearing Denied November 15, 2000.

S. Anthony Long, Boonville, Indiana, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Christopher L. Lafuse, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BARNES, Judge

Case Summary

Greg W. Shoultz appeals his convictions for resisting law enforcement as a class A misdemeanor and disorderly conduct, a class B misdemeanor. We reverse both convictions.

Issues

The sole issue for our review is whether there was sufficient evidence to support Shoultz' convictions. Within that issue are questions of constitutional dimension: (1) whether the arresting officer in this case used excessive force against Shoultz in violation of the Fourth Amendment of the United States Constitution; and (2) whether Shoultz' disorderly conduct conviction violates Article I, Section 9 of the Indiana Constitution.

Facts

The facts most favorable to the State follow. In the early morning hours of December 27, 1997, Patrol Officer Tony Mayhew observed a motorcyclist making what he believed to be an unsafe start.¹ Mayhew followed the motorcyclist to the property of the Grim Reaper motorcycle club. After Mayhew entered the front yard of the clubhouse in order to question the motorcyclist, Shoultz came out of the clubhouse and began yelling and swearing at Mayhew. Shoultz demanded to know what Mayhew was doing on the property, why he was hassling his "brother" motorcyclist, Record p. 172, and whether he had a warrant to be on the property. Mayhew told Shoultz that he did not need a warrant to be on the property and ordered Shoultz to be quiet and go back into the clubhouse. When the other motorcyclist attempted to hand his jacket to Shoultz, Mayhew grabbed it because he believed it might contain a weapon or drugs. A brief tug-of-war ensued, which Mayhew won.

When Shoultz did not stop yelling at Mayhew or go back into the clubhouse, Mayhew decided to arrest Shoultz based on the belief that his yelling constituted resisting law enforcement because it was interfering with Mayhew's investigation of the other motorcyclist's alleged unsafe start. Mayhew directed the other motorcyclist and Shoultz to put their hands on the wall of the clubhouse. The other motorcyclist readily complied, but Shoultz was not agreeable. At this point, Shoultz began asking what he had done wrong and why he was being asked to place his hands on the wall. Mayhew responded by telling Shoultz that if he did not keep his hands on the wall, he would be sprayed with pepper spray. He then sprayed Shoultz in the left eye, which made Shoultz even angrier and more vocal, though he still did not keep his hands on the wall. Mayhew then warned Shoultz that he would hit him with his metal flashlight, which was fifteen to eighteen inches long and bigger around than a billy club, if he did not cooperate. When Shoultz still refused to cooperate, Mayhew hit him twice with the flashlight. He first struck Shoultz in the back of his leg, and after a last warning, struck him in the head, finally causing him to fall to the ground.

Because Shoultz was bleeding profusely from his head, Mayhew called for an ambulance. Back-up officers then arrived on the scene, who helped to place handcuffs and leg shackles on Shoultz. While Shoultz was being restrained, he thrashed about on the ground and kicked Mayhew once in the shin. Shoultz was taken to a hospital, where he initially refused treatment but was eventually "sweet talked" into allowing the staff to suture his head laceration. Record p. 4.

Shoultz was charged with battery as a class A misdemeanor because it was allegedly committed against a law enforcement officer, resisting law enforcement as a class A misdemeanor, and disorderly conduct, a class B misdemeanor. Following a bench trial on December 13, 1999, Shoultz was found guilty of resisting law enforcement and disorderly conduct but was acquitted of battery on the basis that the kicking of Mayhew was part of the resisting law enforcement conviction. This appeal ensued.

Analysis

I. Resisting Law Enforcement

Shoultz presents his challenge to the resisting law enforcement conviction as one based upon the sufficiency of the evidence. However, the development of his argument focuses primarily on an allegation that because Mayhew used excessive force against him, he had a privilege to resist Mayhew. We agree with Shoultz' excessive force claim and hold that it requires reversal of this conviction.

Indiana Code Section 35-44-3-3(a) provides that:

A person who knowingly or intentionally:

(1) forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer

...

commits resisting law enforcement, a Class A misdemeanor....

The word "forcibly" modifies "resists," "obstructs" and "interferes;" it does not only modify "resists." Spangler v. State, 607 N.E.2d 720, 723 (Ind.1993). Thus, the forcible nature of a defendant's resistance, obstruction, or interference is an essential element of the offense that the State is required to prove at trial. Miller v. State, 634 N.E.2d 57, 60 (Ind.Ct.App.1994). A person "forcibly resists" law enforcement when he or she uses strong, powerful, violent means to evade a law enforcement official's rightful exercise of his or her duties; such means include the making of threatening gestures toward the official. Spangler, 607 N.E.2d at 723-24.

It is evident from the definition of "force" that Officer Mayhew incorrectly believed that he had probable cause to arrest Shoultz for resisting law enforcement based on Shoultz' verbal protests to his presence on Grim Reaper property and his investigation of the other motorcyclist's alleged unsafe start. Although the tirade Shoultz directed at Mayhew was profane, there is no indication that he verbally threatened Mayhew in any fashion. Rather, in Mayhew's own testimony he stated that although he felt Shoultz was "badgering" him, Shoultz never threatened him with force or violence, and the tirade "wasn't physical whatsoever." Record p. 102.

To support Shoultz' conviction on this count, the State directs us to evidence that after being knocked to the ground by a blow to the head, Shoultz writhed, thrashed about, and kicked Mayhew as the officers attempted to handcuff and shackle him. Even though we accept this version of the facts and will not consider Shoultz' contention that the officers continued to strike him even after he had been knocked to the ground, we reverse.

The general rule in Indiana is that "a private citizen may not use force in resisting a peaceful arrest by an individual who he knows, or has reason to know, is a police officer performing his duties regardless of whether the arrest in question is lawful or unlawful." Casselman v. State, 472 N.E.2d 1310, 1315 (Ind.Ct.App.1985) (quoting Williams v. State, 160 Ind.App. 294, 311 N.E.2d 619, 621 (1974)); see also Fields v. State, 178 Ind.App. 350, 382 N.E.2d 972, 975-76 (1978)

. Thus, under that rule it is immaterial whether Shoultz' purported arrest for resisting law enforcement was supported by probable cause.²

However, in a circumstance such as this, the rule that a citizen may not resist a peaceful, though illegal, arrest was not "intended as a blanket prohibition so as to criminalize any conduct evincing resistance where the means used to effect an arrest are unlawful." Casselman, 472 N.E.2d at 1316 (emphasis in original). We recently reiterated this principle in Adkisson v. State, 728 N.E.2d 175, 178 (Ind.Ct. App.2000), where we reversed the defendant's resisting law enforcement conviction on insufficiency of the evidence grounds because an officer had made an illegal entry into a residence to effect an arrest, and thus the officer was not "lawfully engaged in the execution of his duties" when the defendant resisted arrest. While Casselman and Adkisson both dealt specifically with resistance to illegal, unconstitutional entries, we believe their reasoning applies equally to claims that an officer has used unconstitutionally excessive force in effecting an arrest,³ in the absence of evidence that the force used to resist an officer's excessive force was not itself disproportionate to the situation. See Adkisson, 728 N.E.2d at 179

(stating that a citizen has the right to reasonably resist an unlawful entry).

Claims that law enforcement officers have used excessive force in the course of an arrest of a free citizen are analyzed under the Fourth Amendment to the United States Constitution and its "reasonableness" standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871, 104 L.Ed.2d 443 (1989). Because the Fourth Amendment test of reasonableness is not capable of precise definition or mechanical application, its proper application requires careful attention to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight. 490 U.S. at 396,109 S.Ct. at 1872. The "reasonableness" of a particular use of force must be judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision of hindsight. Id. However, the "reasonableness" inquiry in an excessive force case is an objective one: the question is whether the officers' actions are "objectively reasonable" in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation. 490 U.S. at 396-97,109 S.Ct. at 1872.

Here, consideration of the Graham factors compels the conclusion that the force Officer Mayhew used against...