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,
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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