                                                                            FILED
                                                                       Jan 30 2020, 10:47 am

                                                                            CLERK
                                                                        Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Mario Garcia                                               Curtis T. Hill, Jr.
Brattain Minnix Garcia                                     Attorney General of Indiana
Indianapolis, Indiana                                      Myriam Serrano-Colon
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Charles R. Tyson,                                          January 30, 2020
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-1813
        v.                                                 Appeal from the Henry Circuit
                                                           Court
State of Indiana,                                          The Honorable David L. McCord,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           33C03-1707-CM-652



Riley, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1813 | January 30, 2020                            Page 1 of 7
                                 STATEMENT OF THE CASE
[1]   Appellant-Defendant, Charles Tyson (Tyson), appeals his conviction for

      resisting law enforcement, a Class A misdemeanor, Ind. Code § 35-44.1-3-

      1(a)(1).


[2]   We affirm.


                                                      ISSUE
[3]   Tyson presents one issue on appeal, which we restate as: Whether the State

      presented sufficient evidence beyond a reasonable doubt to convict Tyson of

      resisting law enforcement.


                       FACTS AND PROCEDURAL HISTORY
[4]   At approximately 3:00 a.m. on July 14, 2017, New Castle police officer Brandy

      Pierce (Officer Pierce) was traveling northbound in a marked police vehicle on

      South 15th Street in New Castle, Indiana. Officer Pierce observed Tyson

      walking eastbound on a cross street. As Officer Pierce passed by Tyson, Tyson

      looked at her vehicle, turned around, and went the other way. When Officer

      Pierce passed the intersection, she observed Tyson turning back around and

      continuing to walk east. Tyson appeared to sway and “he stumbled or tripped”

      as he turned. (Transcript p. 39). Officer Pierce became suspicious as it

      “seemed like [Tyson] was trying to avoid [the officer] when he saw the marked

      patrol car.” (Tr. p. 39). Officer Pierce turned her vehicle around and

      approached Tyson.


      Court of Appeals of Indiana | Opinion 19A-CR-1813 | January 30, 2020       Page 2 of 7
[5]   At the corner of Shroyer and 15th Street, Officer Pierce initiated contact with

      Tyson. She could smell an odor of alcohol and marijuana. Tyson “was

      uncooperative, refusing to stop, continuously having his hands in his pockets,

      backing away, telling me that he had done nothing wrong, that he did not have

      to stop.” (Tr. p. 39). As the situation appeared to escalate, Officer Pierce

      requested backup. Tyson persisted in keeping his hands in his pockets and

      Officer Pierce “could see that there were items in his pockets.” (Tr. p. 39).

      Officer Pierce tried to explain that Tyson could not keep his hands in his

      pockets and to keep his hands where she could see them. “He was warned

      repeatedly if he didn’t keep his hands where [Officer Pierce] could see them,

      that he would be tased.” (Tr. p. 40). Tyson turned around, his hands still

      hidden from view, and began climbing steps to a house, continuing to disregard

      Officer Pierce’s commands. Officer Pierce administered her taser, which

      caused Tyson to fall down the steps. When the taser stopped, Tyson was again

      belligerent and uncooperative, and refused to put his hands behind his back.

      Officer Pierce administered her taser a second time and was able to handcuff

      Tyson. He was subsequently placed under arrest.


[6]   On July 14, 2017, the State filed an Information, charging Tyson with resisting

      law enforcement, a Class A misdemeanor; public intoxication, a Class B

      misdemeanor; and possession of paraphernalia, a Class C misdemeanor.

      Following a bench trial, Tyson was found guilty of resisting law enforcement

      and not guilty of the remaining charges.


[7]   Tyson now appeals. Additional facts will be provided if necessary.

      Court of Appeals of Indiana | Opinion 19A-CR-1813 | January 30, 2020      Page 3 of 7
                               DISCUSSION AND DECISION
                                         I. Sufficiency of the Evidence


[8]   Tyson contends that the State failed to present sufficient evidence beyond a

      reasonable doubt to sustain his conviction for resisting law enforcement. Our

      standard of review with regard to sufficiency claims is well-settled. In

      reviewing a sufficiency of the evidence claim, this court does not reweigh the

      evidence or judge the credibility of the witnesses. Clemons v. State, 987 N.E.2d

      92, 95 (Ind. Ct. App. 2013). We consider only the evidence most favorable to

      the judgment and the reasonable inferences drawn therefrom and will affirm if

      the evidence and those inferences constitute substantial evidence of probative

      value to support the judgment. Id. Reversal is appropriate only when

      reasonable persons would not be able to form inferences as to each material

      element of the offense. Id.


[9]   To convict Tyson of resisting law enforcement, the State was required to

      establish that Tyson “knowingly or intentionally . . . forcibly resiste[d],

      obstruct[ed], or interfere[d] with a law enforcement officer . . . while the officer

      [was] lawfully engaged in the execution of the officer’s duties[.]” See I.C. § 35-

      44.1-3-1(a)(1). The term “forcibly” is a distinct element of the offense that

      modifies all three verbs “resists, obstructs, or interferes.” See K.W. v. State, 984

      N.E.2d 610, 612 (Ind. 2013). It means “something more than mere action.”

      Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993). “[O]ne ‘forcibly resists’ law

      enforcement when strong, powerful, violent means are used to evade a law


      Court of Appeals of Indiana | Opinion 19A-CR-1813 | January 30, 2020          Page 4 of 7
       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.


[10]   But even so, “the statute does not demand complete passivity.” K.W., 984

       N.E.2d at 612. In Graham, our supreme court clarified that “[t]he force

       involved need not rise to the level of mayhem.” Graham v. State, 903 N.E.2d

       963, 966 (Ind. 2009). In fact, even a very modest level of resistance might

       support the offense. Id. at 965 (“‘stiffening’ of one’s arms when an officer grabs

       hold to position them for cuffing would suffice.”). Furthermore, our supreme

       court has “never held that actual physical contact between the defendant and

       the officer [is] required to sustain a conviction for resisting law enforcement.”

       Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013).


[11]   In fact, as noted in Walker, from the beginning our supreme court has stated the

       opposite. Id. See Spangler, 607 N.E.2d at 724 (noting “no movement or

       threatening gesture made in the direction of the official”); Price v. State, 622

       N.E.2d 954, 963 n.14 (Ind. 1993) (citing Spangler for the 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.) 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
       Court of Appeals of Indiana | Opinion 19A-CR-1813 | January 30, 2020        Page 5 of 7
       and refusal to drop it “amounted to a visual showing of strength and a threat of

       violence” sufficient to sustain conviction), trans. denied; 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.”) Accordingly, “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.” Walker, 998 N.E.2d at 727.

       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. Id. The statute does not solely

       contemplate actual physical contact but can also be satisfied by an active threat

       of such strength, power, or violence when that threat impedes the officer’s

       ability to lawfully execute his or her duties. Id.


[12]   In the present case, the trial court, as the trier of fact, reasonably concluded that

       Tyson’s actions amounted to an active threat that impeded Officer Pierce’s

       ability to lawfully execute her duties. Officer Pierce repeatedly ordered Tyson

       to stop and keep his hands out of his pockets. Despite these commands, Tyson

       refused to comply. Officer Pierce was concerned about Tyson’s refusal to keep

       his hands visible as she did not know what was in his pockets. She observed

       “things in his pockets that he continued to reach[.]” (Tr. p. 25). She perceived




       Court of Appeals of Indiana | Opinion 19A-CR-1813 | January 30, 2020          Page 6 of 7
       these objects as dangerous because in her experience, “[i]t only takes a split

       second for them to remove it and try to hurt you with it.” (Tr. p. 40).


[13]   In an attempt to persuade this court that the State failed to carry its burden of

       proof, Tyson likens his situation to Spangler, in which our supreme court

       concluded that no forcible resistance was present. Spangler, 607 N.E.2d at 724.

       In Spangler, a sheriff’s deputy attempted to serve the defendant with process. Id.

       at 721. Spangler refused to accept the papers, turned away from the officer, and

       walked away despite the officer’s order to return. Id. While the Spangler court

       noted that the element of resistance was satisfied, Spangler’s action did not

       amount to forcible resistance. However, unlike the situation in Spangler, Tyson

       did not merely walk away; rather, Tyson’s refusal to take his hands out of his

       pockets, which clearly contained items, amounted to a threatening gesture

       presenting an imminent danger of bodily injury to Officer Pierce. See A.A. v.

       State, 29 N.E.3d 1277, 1281 (Ind. Ct. App. 2015). Accordingly, we affirm

       Tyson’s conviction for resisting law enforcement.


                                              CONCLUSION
[14]   Based on the foregoing, we hold that the State presented sufficient evidence

       beyond a reasonable doubt to sustain Tyson’s conviction for resisting law

       enforcement.


[15]   Affirmed.


[16]   Baker, J. and Brown, J. concur


       Court of Appeals of Indiana | Opinion 19A-CR-1813 | January 30, 2020       Page 7 of 7
