Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, Jan 30 2014, 6:16 am collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. BURNS GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOHN WALLACE, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1306-CR-524 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Linda E. Brown, Judge Cause No. 49F10-1304-CM-20416
January 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge Case Summary
John Wallace appeals his conviction for Class A misdemeanor resisting law
enforcement. He argues that the evidence is insufficient to sustain his conviction because
no evidence was presented that Officer Greg Moore was a law-enforcement officer.
Finding that the evidence was sufficient to establish that Officer Moore was a law-
enforcement officer, we affirm.
Facts and Procedural History
In March 2013, Paul Wells was employed by Securatex, Inc. as a private corrections
officer at Duvall Residential Center in Indianapolis. Wallace was in the yard at the back
of the Center causing a disturbance by telling other residents that he would “chop them
up.” Tr. p. 8. Wells and another security officer assisted in taking Wallace to the intake
area where he could be separated from the other residents. They handcuffed Wallace to a
bench. Wells and the other security officer then took Wallace to a holding cell, which
could be locked.
Upon reaching the holding cell, Wells told Wallace that he would remove one
handcuff and attach it to a bench. Wells instructed Wallace not to make any sudden
movements. When the handcuff was removed, Wallace went into “a state of rage.” Id. at
10. Wallace started growling and making strange noises. He also stiffened his body,
preventing Wells from sitting him on the bench and securing the handcuff to the bench.
Wallace then began to lunge and tried to pull away from Wells. Wells could not let go of
Wallace because he was afraid Wallace would use the unsecured handcuff as a weapon.
During the ensuing struggle, Wallace looked directly at Wells and elbowed him in the jaw.
2 While Wells was trying to subdue Wallace, Wallace slammed Wells’s wrist into the
holding-cell door, causing him pain.
Meanwhile, Officer Moore walked by the holding cell. Officer Moore works for
the Jonesboro Police Department and also does contract security work for Securatex at
Duvall Residential Center. Id. at 15. Officer Moore was at the Center to make copies for
a warrant he planned to serve on someone else later that day. He was wearing his Jonesboro
Police Department uniform and his jacket with “police” written in large letters across the
back. Id. at 23; Ex. 1. He was also wearing a badge. Tr. p. 33. After he walked past the
room, he heard a struggle and a sound like someone was being hit. Officer Moore walked
back down the hall and looked into the holding cell. He saw Wells and the other security
officer struggling with Wallace.
Officer Moore entered the room and, as he did, Wallace looked directly at him and
started moving in his direction. Officer Moore put his arm out and stopped Wallace from
coming any closer. He told Wallace to stop resisting and put his hands behind his back.
Wallace refused. Officer Moore forced Wallace toward the wall while the security officers
held his arm. Wallace continued to struggle and started pulling away from the officers.
Officer Moore pulled Wallace back and put him in the holding cell. In the holding cell,
Officer Moore ordered Wallace to lie on the ground, but Wallace refused. Wallace was
eventually subdued.
The State charged Wallace with Class A misdemeanor battery (Wells) and Class A
misdemeanor resisting law enforcement (Moore). Appellant’s App. p. 16-17. A bench
trial was held. At trial, Wallace testified that he did not know that Moore was a police
3 officer. However, Wallace added that he “assumed that he was.” Tr. p. 32. The trial court
found Wallace guilty of Class A misdemeanor battery and Class A misdemeanor resisting
law enforcement. The trial court sentenced him to 365 days in the Marion County Jail,
with 95 days suspended. Id. at 46.
Wallace now appeals.
Discussion and Decision
Wallace contends that the evidence is insufficient to support his conviction for
Class A misdemeanor resisting law enforcement.1 When reviewing the sufficiency of the
evidence, we neither reweigh the evidence nor determine the credibility of witnesses.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We look solely to the evidence most
favorable to the judgment together with all reasonable inferences to be drawn therefrom.
Id. A conviction will be affirmed if the probative evidence and reasonable inferences to
be drawn from the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt. Id.
Class A misdemeanor resisting law enforcement occurs when a person knowingly
or intentionally 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 the
officer’s duties. Ind. Code § 35-44.1-3-1(a)(1). Wallace does not dispute that he
knowingly or intentionally forcibly resisted Officer Moore. Instead, Wallace argues that
the State presented insufficient evidence that Officer Moore was a law enforcement officer,
that he knew Officer Moore was a law-enforcement officer, and that Officer Moore was
1 Wallace does not challenge his conviction for Class A misdemeanor battery. 4 acting within the course of his official duties as an officer. The term “law-enforcement
officer” includes:
(1) A state police officer. (2) A city, town, or county police officer. (3) A sheriff. (4) A county coroner in accordance with IC 36-2-14-4. (5) A conservation officer. (6) An individual assigned duties and limitations under IC 10-11-2-26. (7) A member of a consolidated law enforcement department established under IC 36-3-1-5.1. (8) An excise police officer of the alcohol and tobacco commission. (9) A gaming control officer employed by the gaming control division under IC 4-33-20.
Ind. Code § 9-13-2-92.
First, Wallace argues that Officer Moore was not a law-enforcement officer. But
Officer Moore testified that he worked for the Jonesboro Police Department. Tr. p. 15. At
the time of the incident, Officer Moore was wearing his Jonesboro police uniform, badge,
and jacket with “police” in large letters across the back. Id. at 23, 33; Ex. 1. The record
clearly establishes that Officer Moore is a law-enforcement officer.
Second, Wallace essentially argues that he did not know that Officer Moore was a
law-enforcement officer. However, the record shows that he knew or should have known
that Officer Moore was a law-enforcement officer.
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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, Jan 30 2014, 6:16 am collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. BURNS GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana
RICHARD C. WEBSTER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
JOHN WALLACE, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1306-CR-524 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Linda E. Brown, Judge Cause No. 49F10-1304-CM-20416
January 30, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
VAIDIK, Chief Judge Case Summary
John Wallace appeals his conviction for Class A misdemeanor resisting law
enforcement. He argues that the evidence is insufficient to sustain his conviction because
no evidence was presented that Officer Greg Moore was a law-enforcement officer.
Finding that the evidence was sufficient to establish that Officer Moore was a law-
enforcement officer, we affirm.
Facts and Procedural History
In March 2013, Paul Wells was employed by Securatex, Inc. as a private corrections
officer at Duvall Residential Center in Indianapolis. Wallace was in the yard at the back
of the Center causing a disturbance by telling other residents that he would “chop them
up.” Tr. p. 8. Wells and another security officer assisted in taking Wallace to the intake
area where he could be separated from the other residents. They handcuffed Wallace to a
bench. Wells and the other security officer then took Wallace to a holding cell, which
could be locked.
Upon reaching the holding cell, Wells told Wallace that he would remove one
handcuff and attach it to a bench. Wells instructed Wallace not to make any sudden
movements. When the handcuff was removed, Wallace went into “a state of rage.” Id. at
10. Wallace started growling and making strange noises. He also stiffened his body,
preventing Wells from sitting him on the bench and securing the handcuff to the bench.
Wallace then began to lunge and tried to pull away from Wells. Wells could not let go of
Wallace because he was afraid Wallace would use the unsecured handcuff as a weapon.
During the ensuing struggle, Wallace looked directly at Wells and elbowed him in the jaw.
2 While Wells was trying to subdue Wallace, Wallace slammed Wells’s wrist into the
holding-cell door, causing him pain.
Meanwhile, Officer Moore walked by the holding cell. Officer Moore works for
the Jonesboro Police Department and also does contract security work for Securatex at
Duvall Residential Center. Id. at 15. Officer Moore was at the Center to make copies for
a warrant he planned to serve on someone else later that day. He was wearing his Jonesboro
Police Department uniform and his jacket with “police” written in large letters across the
back. Id. at 23; Ex. 1. He was also wearing a badge. Tr. p. 33. After he walked past the
room, he heard a struggle and a sound like someone was being hit. Officer Moore walked
back down the hall and looked into the holding cell. He saw Wells and the other security
officer struggling with Wallace.
Officer Moore entered the room and, as he did, Wallace looked directly at him and
started moving in his direction. Officer Moore put his arm out and stopped Wallace from
coming any closer. He told Wallace to stop resisting and put his hands behind his back.
Wallace refused. Officer Moore forced Wallace toward the wall while the security officers
held his arm. Wallace continued to struggle and started pulling away from the officers.
Officer Moore pulled Wallace back and put him in the holding cell. In the holding cell,
Officer Moore ordered Wallace to lie on the ground, but Wallace refused. Wallace was
eventually subdued.
The State charged Wallace with Class A misdemeanor battery (Wells) and Class A
misdemeanor resisting law enforcement (Moore). Appellant’s App. p. 16-17. A bench
trial was held. At trial, Wallace testified that he did not know that Moore was a police
3 officer. However, Wallace added that he “assumed that he was.” Tr. p. 32. The trial court
found Wallace guilty of Class A misdemeanor battery and Class A misdemeanor resisting
law enforcement. The trial court sentenced him to 365 days in the Marion County Jail,
with 95 days suspended. Id. at 46.
Wallace now appeals.
Discussion and Decision
Wallace contends that the evidence is insufficient to support his conviction for
Class A misdemeanor resisting law enforcement.1 When reviewing the sufficiency of the
evidence, we neither reweigh the evidence nor determine the credibility of witnesses.
Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012). We look solely to the evidence most
favorable to the judgment together with all reasonable inferences to be drawn therefrom.
Id. A conviction will be affirmed if the probative evidence and reasonable inferences to
be drawn from the evidence could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt. Id.
Class A misdemeanor resisting law enforcement occurs when a person knowingly
or intentionally 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 the
officer’s duties. Ind. Code § 35-44.1-3-1(a)(1). Wallace does not dispute that he
knowingly or intentionally forcibly resisted Officer Moore. Instead, Wallace argues that
the State presented insufficient evidence that Officer Moore was a law enforcement officer,
that he knew Officer Moore was a law-enforcement officer, and that Officer Moore was
1 Wallace does not challenge his conviction for Class A misdemeanor battery. 4 acting within the course of his official duties as an officer. The term “law-enforcement
officer” includes:
(1) A state police officer. (2) A city, town, or county police officer. (3) A sheriff. (4) A county coroner in accordance with IC 36-2-14-4. (5) A conservation officer. (6) An individual assigned duties and limitations under IC 10-11-2-26. (7) A member of a consolidated law enforcement department established under IC 36-3-1-5.1. (8) An excise police officer of the alcohol and tobacco commission. (9) A gaming control officer employed by the gaming control division under IC 4-33-20.
Ind. Code § 9-13-2-92.
First, Wallace argues that Officer Moore was not a law-enforcement officer. But
Officer Moore testified that he worked for the Jonesboro Police Department. Tr. p. 15. At
the time of the incident, Officer Moore was wearing his Jonesboro police uniform, badge,
and jacket with “police” in large letters across the back. Id. at 23, 33; Ex. 1. The record
clearly establishes that Officer Moore is a law-enforcement officer.
Second, Wallace essentially argues that he did not know that Officer Moore was a
law-enforcement officer. However, the record shows that he knew or should have known
that Officer Moore was a law-enforcement officer. Officer Moore was in full uniform and
wearing a jacket with the word “police” written in large letters across the back. Id.
Moreover, Wallace testified that he noticed the badge and assumed Officer Moore was a
police officer. Tr. p. 32. Officer Moore also testified that Wallace looked “straight at me.”
Id. at 17. See Clanton v. State, 977 N.E.2d 1018, 1024 (Ind. Ct. App. 2012) (“Although
Officer Price may not have verbally identified himself as a police officer . . . it seems likely
5 that someone being approached by two men wearing full police uniforms would assume
that the men were acting in a state-sanctioned law enforcement capacity and not as security
officers for the apartment complex.”). Because Officer Moore was wearing a police
uniform, Wallace looked directly at him, and Wallace saw his badge, he knew or should
have known that Officer Moore was a law-enforcement officer.
Third, Wallace argues that Officer Moore was not acting in the course of his official
duties when he assisted Wells and the other security officer in subduing Wallace. Wallace
cites K.W. v. State for this proposition, arguing that Wallace acted in his capacity as a
security officer rather than as a law-enforcement officer. See 984 N.E.2d 610 (Ind. 2013).
However, K.W. is distinguishable. In that case, our Supreme Court held that an
Indianapolis Metropolitan Police Department officer working as a school-liaison officer is
not a law-enforcement officer under the resisting-law-enforcement statute. Id. at 613. In
determining that the school-liaison officer was not a law-enforcement officer, the Court
was concerned about the risk of blurring the Fourth Amendment line between school-
discipline and law-enforcement duties “by allowing the same officer to invisibly ‘switch
hats’—taking a disciplinary role to conduct a warrantless search in one moment, then in
the next taking a law-enforcement role to make an arrest based on the fruits of that search.”
Id.
The Court’s concern about blurring the Fourth Amendment distinction is not present
in this case. Officer Moore, acting as a law-enforcement officer, had the same obligations
under the Fourth Amendment that he would if acting as a security officer. Instead, as stated
in Nieto v. State, “when a police officer, whether in uniform or not, takes it upon himself
6 to enforce the law in order to maintain peace and order for the benefit of the public, the
officer is performing official duties as a police officer.” 499 N.E.2d 280, 282 (Ind. Ct.
App. 1986). Here, Officer Moore observed the security officers struggling with Wallace
and helped them gain control of Wallace and place him in a holding cell. In assisting the
security officers in gaining control of Wallace, Officer Moore was acting in his capacity as
a law-enforcement officer.
Wallace’s arguments that there was no evidence that Officer Moore was a law-
enforcement officer or that Officer Moore was not engaged in law-enforcement activity are
simply requests to reweigh evidence, which we may not do. The evidence is sufficient to
support his conviction.
Affirmed.
RILEY, J., and MAY, J., concur.