Desmond Bland v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 23, 2018
• Docket: 49A02-1710-CR-2421
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 23 2018, 10:06 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Desmond Bland, March 23, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1710-CR-2421 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy M. Jones, Appellee-Plaintiff. Judge Trial Court Cause No. 49G08-1612-CM-47184

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018 Page 1 of 6 Case Summary [1] Desmond Bland (“Bland”) appeals his conviction for Resisting Law

Enforcement, as a Class A misdemeanor,1 presenting the sole issue of whether

there is sufficient evidence of force to support the conviction. We affirm.

Facts and Procedural History [2] On December 8, 2016, Marcus Triplett (“Triplett”), a behavioral specialist

employed by Northwest High School in Indianapolis, observed a man talking

with some students in the middle school wing of the building. The man, later

identified as Bland, told Triplett that he was on school property to pick up a

cousin. However, Bland had no visitor’s pass and could not provide the

cousin’s last name. Triplett directed Bland to leave the building and Bland

complied; Bland then re-entered the building through another door. Observing

this, Triplett summoned the school police.

[3] Indianapolis School Police Officers Dallas Gaines and Jeffrey Brunner

responded. Officer Gaines asked Bland to identify himself; Bland said that he

was “D” and was picking up a cousin. (Tr. Vol. II, pg. 52.) Officer Gaines

then advised Bland that he could not be inside the school without a pass and an

1 Ind. Code § 35-44.1-3-1(a)(1).

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018 Page 2 of 6 escort; he also directed Bland to remove his right hand from his pocket. Bland

responded “why?” (Tr. Vol. II, pg. 74.)

[4] Bland had assumed a stance that Officer Gaines described as “blading” his

body and Officer Gaines suspected that Bland was attempting to conceal

something. (Tr. Vol. II, pg. 54.) Officer Gaines again asked Bland to remove

his hand, but Bland did not comply. Officer Gaines “took [Bland] to the

ground” and Bland fell face-down. (Tr. Vol. II, pg. 75). After the fall, Bland

shoved his left hand under his body. Together, the officers took control of

Bland’s hands and placed handcuffs on him. During the incident, Bland tensed

his arms and tried to pull away. Inside Bland’s pockets were flyers about a shoe

exchange.

[5] On December 8, 2016, the State charged Bland with Resisting Law

Enforcement, as a Class A misdemeanor. On September 25, 2017, a jury found

him guilty as charged. Bland was sentenced to one year of imprisonment, with

361 days suspended. He was also ordered to pay a $500.00 fine. Bland now

appeals.

Discussion and Decision [6] In reviewing a sufficiency of the evidence claim, we do not reweigh the

evidence or assess the credibility of witnesses. K.W. v. State, 984 N.E.2d 610,

612 (Ind. 2013). We look to the evidence and reasonable inferences drawn

therefrom that support the judgment, and affirm if there is probative evidence

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018 Page 3 of 6 from which a reasonable factfinder could have found the defendant guilty

beyond a reasonable doubt. Id. We will reverse if there is no evidence or

reasonable inference to support any one of the necessary elements of the

charged offense. Id.

[7] The basic offense of resisting law enforcement has five essential elements. See

id. Pursuant to Indiana Code Section 35-44.1-3-1, a defendant has committed

resisting law enforcement when he (1) knowingly or intentionally (2) forcibly

(3) resisted, obstructed, or interfered with (4) a law enforcement officer (5)

while the officer was lawfully engaged in the execution of the officer’s duties.

Id. One “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. (citing Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993)).

[8] The level of force need not rise to the level of mayhem, but the statute does not

demand complete passivity. Id. Merely walking away from a law-enforcement

encounter, leaning away from an officer’s grasp, or twisting and turning a little

bit against an officer’s actions are examples of conduct that do not amount to

“forcible” resistance. Id. It is error as a matter of law to conclude that forcible

resistance includes all actions that are not passive. Spangler, 607 N.E.2d at 724.

However, stiffening one’s arms when an officer grabs hold to position them for

cuffing “would suffice” to “constitute use of force.” Graham v. State, 903

N.E.2d 963, 966 (Ind. 2009).

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018 Page 4 of 6 [9] Here, the State elicited testimony from Triplett and both arresting officers.

Triplett described the interaction he observed as the officers “wrestling” with

Bland and Bland “struggling.” (Tr. Vol. II, pgs. 37-38). Officer Gaines

described Bland’s movements after he was taken to the floor, as follows: Bland

“tensed him arms,” pulled away, and “was trying to stiffen his body.” (Tr. Vol.

II, pg. 56.) Officer Brunner testified that Bland tried to “jerk away” from

Officer Gaines. (Tr. Vol. II, pg. 75.)

[10] Bland argues that he was “completely surprised” by being taken to the floor and

was rendered unable to resist. Appellant’s Brief at 10. He claims that the State

lacked evidence that he reacted with force, akin to the evidentiary deficiency

found in Colvin v. State, 916 N.E.2d 306, 309 (Ind. Ct. App. 2009) (officers

restrained defendant after he refused to remove his hands from his pockets but

there was “no evidence that [defendant] stiffened his arms or otherwise forcibly

resisted the officers”) and Berberena v. State, 914 N.E.2d 780, 782 (Ind. Ct. App.

2009) (defendant refused to comply with commands and the officer placed the

defendant against a wall and struggled with him to place handcuffs; the

testimony was ambiguous as to whether only the officer acted forcibly), trans.

denied. We disagree with Bland’s contention that the State presented no

evidence of force on his part. There was testimony that he struggled and

attempted to pull away from an officer’s grasp. As such, there is sufficient

evidence to establish the essential element of force.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018 Page 5 of 6 Conclusion [11] Sufficient evidence supports Bland’s conviction for Resisting Law Enforcement.

[12] Affirmed.

Crone, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018 Page 6 of 6