Walker v. State

• Decision Date: 12 December 2013
• Docket Number: No. 49S02–1312–CR–804.,49S02–1312–CR–804.
• Citation: 998 N.E.2d 724
• Parties: Demetrius WALKER, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
• Court: Indiana Supreme Court

998 N.E.2d 724

Demetrius WALKER, Appellant (Defendant below),

v.STATE of Indiana, Appellee (Plaintiff below).

No. 49S02–1312–CR–804.

Supreme Court of Indiana.

Dec. 12, 2013.

Suzy St. John, Ruth A. Johnson, Indianapolis, IN, Attorneys for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

On Petition to Transfer from the Indiana Court of Appeals, No. 49A02–1205–CR–380

DAVID, Justice.

Just because an individual refuses to comply with a police officer's order does not necessarily subject that individual to criminal liability under Indiana's resisting law enforcement statute. The individual must “forcibly” resist the officer's lawful execution of his or her duties. But in this case the defendant refused repeated orders to lay down on the ground and advanced aggressively, with his fists clenched, to within a few feet of the police officer issuing the orders before ultimately being tased. We find this conduct was sufficient to support his conviction for resisting law enforcement, and therefore affirm the trial court.

Facts and Procedural History

Early on the morning of March 25, 2012, Indianapolis Metropolitan Police Department Officer Jason Ehret was dispatched to a fight in progress. When he arrived on-scene, he saw two males standing in the middle of an intersection, yelling back and forth. Officer Ehret announced himself, but the men continued yelling. The men began walking towards each other and Officer Ehret told them to separate; instead they began throwing punches.

Officer Ehret continued yelling at them to stop, and to lay down on the ground; after ten or fifteen seconds of the men continuing to fight, he warned them that he would employ his taser if they did not comply. One man immediately dropped to the ground with his arms outstretched; the other—Demetrius Walker—turned toward Officer Ehret, who was at that point about ten feet away, and with fists clenched, stared at Officer Ehret and began to approach.

Officer Ehret ordered Walker to stop and get down on the ground several times, but Walker continued his advance with his arms and fists clenched “in an aggressive manner”—at one point raising his fists. When Walker got within three or four feet of Officer Ehret, Officer Ehret drew his taser and pointed it; Walker continued forward. Officer Ehret tased Walker, who immediately fell to the ground “and after that point was very cooperative.” (Tr. at 12.) Officer Ehret was then able to handcuff and arrest Walker without any further struggle.

The State charged Walker with resisting law enforcement, as a class A misdemeanor, and disorderly conduct, as a class B misdemeanor. After a bench trial, the judge found Walker guilty of resisting law enforcement and sentenced him to ninety days in the Marion County jail, with credit for fifty days of time served.¹

Walker appealed, arguing that the evidence was insufficient to sustain his conviction for resisting law enforcement. The Court of Appeals affirmed, Walker v. State, 984 N.E.2d 642 (Ind.Ct.App.2013), and Walker sought transfer to this Court. We heard oral argument on August 22, 2013, and now grant transfer, thereby vacating the Court of Appeals opinion. Ind. Appellate Rule 58(A). We likewise affirm.

Standard of Review

We do not reweigh evidence or reassess the credibility of witnesses when reviewing a conviction for the sufficiency of the evidence. Bailey v. State, 979 N.E.2d 133, 135 (Ind.2012). We view all evidence and reasonable inferences drawn therefrom in a light most favorable to the conviction, and will affirm “if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.” Davis v. State, 813 N.E.2d 1176, 1178 (Ind.2004); Bailey, 979 N.E.2d at 135.

Discussion

A person commits the crime of resisting law enforcement when he or she “knowingly or intentionally ... forcibly resists, obstructs, or interferes with a law enforcement officer ... while the officer is lawfully engaged in the execution of the officer's duties.” Ind.Code § 35–44.1–3–1(a)(1) (Supp.2013).² Barring certain aggravating factors, the offense is a class A misdemeanor. Ind.Code § 35–44.1–3–1(a). Such a seemingly simple statute, however, has proven to be complex and nuanced in its application.

In Spangler v. State, we held that the word “forcibly” is an essential element of the crime and modifies the entire string of verbs—resists, obstructs, or interferes—such that the State must show forcible resistance, forcible obstruction, or forcible interference. 607 N.E.2d 720, 722–23 (Ind.1993). We also held that the word meant “something more than mere action.” Id. at 724. “[O]ne ‘forcibly resists' law enforcement when strong, powerful, violent means are used to evade a law enforcement official's rightful exercise of his or her duties.” Id. at 723. “[A]ny action to resist must be done with force in order to violate this statute. It is error as a matter of law to conclude that ‘forcibly resists' includes all actions that are not passive.” Id. at 724.

But even so, “the statute does not demand complete passivity.” K.W. v. State, 984 N.E.2d 610, 612 (Ind.2013). In Graham v. State, we clarified that “[t]he force involved need not rise to the level of mayhem.” 903 N.E.2d 963, 965 (Ind.2009). In fact, even a very “modest level of resistance” might support the offense. Id. at 966 (“even ‘stiffening’ of one's arms when an officer grabs hold to position them for cuffing would suffice”).

Furthermore, we have never held that actual physical contact between the defendant and the officer has been required to sustain a conviction for resisting law enforcement. In fact, from the beginning we have said just the opposite. See Spangler, 607 N.E.2d at 724 (noting “no movement or threatening gesture made in the direction of the official” (emphasis added)); id. (defining “forcible” in part by comparison to statutory definition of “forcible felony” which included felonies involving “the use or threat of force against a human being” and those “in which there is imminent danger of bodily injury to a human being” (emphasis added) (citing Ind.Code § 35–41–1–11)); see also Price v. State, 622 N.E.2d 954, 963 n. 14 (Ind.1993) (citing Spangler for proposition that “an individual who directs strength, power or violence towards police officers or who makes a threatening gesture or movement in their direction,” may be charged with resisting law enforcement (emphasis added)).

And this notion has been applied to affirm convictions when a defendant makes such a threatening gesture or movement, or otherwise presents an imminent danger of bodily injury. See Pogue v. State, 937 N.E.2d 1253, 1258 (Ind.Ct.App.2010) (display of box cutter and refusal to drop it “amounted to a visual showing of strength and a threat of violence” sufficient to sustain conviction), trans. denied; see also Stansberry v. State, 954 N.E.2d 507, 511–12 (Ind.Ct.App.2011) (vacating conviction for “attempted” resisting law enforcement when defendant charged at officer and had to be pepper-sprayed, but citing Pogue as holding that “merely showing strength and a threat of violence is sufficient to prove forcible resistance, obstruction, or interference”).

So in summary, not every passive—or even active—response to a police officer constitutes the offense of resisting law enforcement, even when that response compels the officer to use force. Instead, a person “forcibly” resists, obstructs, or interferes with a police officer when he or she uses strong, powerful, violent means to impede an officer in the lawful execution of his or her duties. But this should not be understood as requiring an overwhelming or extreme level of force. The element may be satisfied with even a modest exertion of strength, power, or violence. Moreover, the statute does not require commission of a battery on the officer or actual physical contact—whether initiated by the officer or the defendant. It also contemplates punishment for the active threat of such strength, power, or violence when that threat impedes the officer's ability to lawfully execute his or her duties.

Still, these cases are necessarily fact-sensitive, and since Spangler appellate courts have attempted to place them along a spectrum of force, though often with the facts varying only by slight degrees. A side-effect of this approach can be a degreeof unpredictability in outcome, for both the defendant and the State.

For example, in K.W., we held that the evidence was insufficient to sustain a juvenile adjudication for resisting law enforcement when the juvenile began to pull away and turn from a school resource officer attempting to cuff him, 984 N.E.2d at 612–13, and in A.C. v. State, the Court of Appeals similarly found that a juvenile did not act forcibly when he refused to stand when asked and leaned away from an officer, 929 N.E.2d 907, 911–12 (Ind.Ct.App.2010). But in Johnson v. State, the Court of Appeals found forcible resistance because that defendant turned and pushed away from officers as they attempted to search him, and stiffened up as they put him in a transport vehicle. 833 N.E.2d 516, 518–19 (Ind.Ct.App.2005).

And in Pogue v. State, the Court of Appeals held that a defendant acted forcibly when he displayed a box cutter and refused to drop it when asked, but instead seemed to try to put it back in his...