MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 07 2017, 8:59 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Erin L. Berger Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Roman Allen, March 7, 2017 Appellant-Defendant, Court of Appeals Case No. 87A05-1606-CR-1277 v. Appeal from the Warrick Circuit Court State of Indiana, The Honorable Greg A. Granger, Appellee-Plaintiff Judge Trial Court Cause No. 87C01-1501-CM-4
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 1 of 7 [1] Roman Allen was convicted of Resisting Law Enforcement, 1 a Class A
Misdemeanor. He argues that the State did not offer sufficient evidence to
prove that he resisted law enforcement, or, in the alternative, he was privileged
to resist the arresting officers because they used excessive force against him.
Finding sufficient evidence and no privilege, we affirm.
Facts 2
[2] On January 2, 2015, Abbigail Roy was working as a bartender at the Southside
Bar in Boonville. Allen was at the bar that night and started arguing with
another customer, and Roy asked them to stop. When they continued to argue,
Roy asked them to leave the bar, and Allen left. He then returned, saying that
he needed to use the restroom. When Allen exited the restroom, a woman
approached him, and he told the woman “to get out of his face.” Tr. p. 6. At
some point during the night, someone said, “he can pull his [gun] faster than
you can pull yours.”3 Id. at 8. Another employee who was at the bar but not
working called the police.
1 Ind. Code § 35-44.1-3-1(a)(1). 2 Oral argument took place on Thursday, February 16, 2017, at Ivy Tech Community College in Indianapolis. We thank the school’s administration, faculty, and students for their hospitality and thoughtful post-argument questions. We also thank counsel for their informative arguments. 3 During direct examination, Roy testified, “I was told that he can pull his faster than you can pull yours. That’s all I was told, and then somebody said—.” Tr. p. 8. She testified that she did not know who said it. During cross-examination, counsel asked Roy, “But, is it true, ma’am, that you heard, he can pull his faster than you can pull yours? That’s something that you heard?” Id. at 15. Roy testified, “I did not hear that. Somebody came up and told me that, and that’s how the police got called was because somebody overheard that and said it to me, and said that she was going to call the police. I never heard that for myself.” Id.
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 2 of 7 [3] Chandler Police Officer Matthew Tevault was dispatched to the Southside Bar.
Once inside, he unholstered his weapon and ordered Allen and another man to
show him their hands. Allen did not comply, instead keeping his hands in his
pockets as he began approaching Officer Tevault with a dazed look. When
Allen was within three feet of Officer Tevault, he put his hands up and
continued to advance. Officer Tevault then kicked Allen’s sternum “to try to
gain distance from him,” holstered his weapon, and “began to go hands on with
him.” Id. at 32. Officer Tevault grabbed Allen’s left arm near his wrist and
tried to escort him to the ground. The floor was slick, making it hard for
Officer Tevault to gain control of Allen. He gave knee strikes to Allen’s mid-
thigh to try to get him to the ground. At some point, Officer Dalton Spaulding
arrived and tried to subdue Allen. Officer Spaulding grabbed Allen, who pulled
away, causing Officer Spaulding to slam into a vending machine.
[4] The officers told Allen that he would be tased if he did not comply. When
Allen did not do as ordered, Officer Tevault tased him for a five-second cycle.
Officer Spaulding tased him at the same time. While tasing Allen, Officer
Tevault told him to put his hands behind his back as soon as the tasing was
over. Instead of complying, Allen rolled onto his side, looked at Officer
Tevault, and tucked his hands underneath himself. Officer Spaulding told
Allen that if he did not put his hands behind his back, he would be tased again.
Officer Tevault then tased Allen for a second five-second cycle, after which
Allen put his hands behind his back, and Officer Spaulding handcuffed him.
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 3 of 7 [5] On January 2, 2015, the State charged Allen with resisting law enforcement, a
Class A misdemeanor. A bench trial took place on April 22, 2016, and the trial
court took the matter under advisement. On April 25, 2016, the trial court
issued an order finding Allen guilty, and entered a conviction against him. On
May 20, 2016, the trial court sentenced Allen to twelve months at the Warrick
County Security Center, with all of the sentence suspended to non-reporting
probation except for five weekends.
Discussion and Decision [6] Allen argues that there was insufficient evidence to convict him of resisting law
enforcement, and that even if he did resist, he was privileged to do so because
the officers used excessive force against him during his arrest.
I. Sufficiency of the Evidence [7] Allen argues that the State did not present sufficient evidence to support his
conviction. When considering a challenge to the sufficiency of the evidence, we
do not reweigh the evidence or judge the credibility of the witnesses. McHenry
v. State, 820 N.E.2d 124, 126 (Ind. 2005). We will affirm if the probative
evidence and the reasonable inferences drawn therefrom could have allowed a
reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.
Id. To convict Allen of resisting law enforcement, the State needed to prove
beyond a reasonable doubt that Allen knowingly or intentionally forcibly
resisted, obstructed, or interfered with a law enforcement officer or a person
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 4 of 7 assisting the officer while the officer was lawfully engaged in the execution of
his duties. I.C. § 35-44.1-3-1(a)(1).
[8] Our Supreme Court has considered the elements of this crime, noting that the
word “forcibly” modifies “resists, obstructs, or interferes” and that force is an
element of the offense. Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009)
(discussing Spangler v. State, 607 N.E.2d 720 (Ind. 1993)). An individual
“‘forcibly resists’” when “‘strong, powerful, violent means are used to evade a
law enforcement official’s rightful exercise of his or her duties.’” Id. (quoting
Spangler, 607 N.E.2d at 723). The force involved does not need to rise to the
level of mayhem. Id. “It is error as a matter of law to conclude that ‘forcibly
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MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 07 2017, 8:59 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Erin L. Berger Curtis T. Hill, Jr. Evansville, Indiana Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Roman Allen, March 7, 2017 Appellant-Defendant, Court of Appeals Case No. 87A05-1606-CR-1277 v. Appeal from the Warrick Circuit Court State of Indiana, The Honorable Greg A. Granger, Appellee-Plaintiff Judge Trial Court Cause No. 87C01-1501-CM-4
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 1 of 7 [1] Roman Allen was convicted of Resisting Law Enforcement, 1 a Class A
Misdemeanor. He argues that the State did not offer sufficient evidence to
prove that he resisted law enforcement, or, in the alternative, he was privileged
to resist the arresting officers because they used excessive force against him.
Finding sufficient evidence and no privilege, we affirm.
Facts 2
[2] On January 2, 2015, Abbigail Roy was working as a bartender at the Southside
Bar in Boonville. Allen was at the bar that night and started arguing with
another customer, and Roy asked them to stop. When they continued to argue,
Roy asked them to leave the bar, and Allen left. He then returned, saying that
he needed to use the restroom. When Allen exited the restroom, a woman
approached him, and he told the woman “to get out of his face.” Tr. p. 6. At
some point during the night, someone said, “he can pull his [gun] faster than
you can pull yours.”3 Id. at 8. Another employee who was at the bar but not
working called the police.
1 Ind. Code § 35-44.1-3-1(a)(1). 2 Oral argument took place on Thursday, February 16, 2017, at Ivy Tech Community College in Indianapolis. We thank the school’s administration, faculty, and students for their hospitality and thoughtful post-argument questions. We also thank counsel for their informative arguments. 3 During direct examination, Roy testified, “I was told that he can pull his faster than you can pull yours. That’s all I was told, and then somebody said—.” Tr. p. 8. She testified that she did not know who said it. During cross-examination, counsel asked Roy, “But, is it true, ma’am, that you heard, he can pull his faster than you can pull yours? That’s something that you heard?” Id. at 15. Roy testified, “I did not hear that. Somebody came up and told me that, and that’s how the police got called was because somebody overheard that and said it to me, and said that she was going to call the police. I never heard that for myself.” Id.
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 2 of 7 [3] Chandler Police Officer Matthew Tevault was dispatched to the Southside Bar.
Once inside, he unholstered his weapon and ordered Allen and another man to
show him their hands. Allen did not comply, instead keeping his hands in his
pockets as he began approaching Officer Tevault with a dazed look. When
Allen was within three feet of Officer Tevault, he put his hands up and
continued to advance. Officer Tevault then kicked Allen’s sternum “to try to
gain distance from him,” holstered his weapon, and “began to go hands on with
him.” Id. at 32. Officer Tevault grabbed Allen’s left arm near his wrist and
tried to escort him to the ground. The floor was slick, making it hard for
Officer Tevault to gain control of Allen. He gave knee strikes to Allen’s mid-
thigh to try to get him to the ground. At some point, Officer Dalton Spaulding
arrived and tried to subdue Allen. Officer Spaulding grabbed Allen, who pulled
away, causing Officer Spaulding to slam into a vending machine.
[4] The officers told Allen that he would be tased if he did not comply. When
Allen did not do as ordered, Officer Tevault tased him for a five-second cycle.
Officer Spaulding tased him at the same time. While tasing Allen, Officer
Tevault told him to put his hands behind his back as soon as the tasing was
over. Instead of complying, Allen rolled onto his side, looked at Officer
Tevault, and tucked his hands underneath himself. Officer Spaulding told
Allen that if he did not put his hands behind his back, he would be tased again.
Officer Tevault then tased Allen for a second five-second cycle, after which
Allen put his hands behind his back, and Officer Spaulding handcuffed him.
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 3 of 7 [5] On January 2, 2015, the State charged Allen with resisting law enforcement, a
Class A misdemeanor. A bench trial took place on April 22, 2016, and the trial
court took the matter under advisement. On April 25, 2016, the trial court
issued an order finding Allen guilty, and entered a conviction against him. On
May 20, 2016, the trial court sentenced Allen to twelve months at the Warrick
County Security Center, with all of the sentence suspended to non-reporting
probation except for five weekends.
Discussion and Decision [6] Allen argues that there was insufficient evidence to convict him of resisting law
enforcement, and that even if he did resist, he was privileged to do so because
the officers used excessive force against him during his arrest.
I. Sufficiency of the Evidence [7] Allen argues that the State did not present sufficient evidence to support his
conviction. When considering a challenge to the sufficiency of the evidence, we
do not reweigh the evidence or judge the credibility of the witnesses. McHenry
v. State, 820 N.E.2d 124, 126 (Ind. 2005). We will affirm if the probative
evidence and the reasonable inferences drawn therefrom could have allowed a
reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.
Id. To convict Allen of resisting law enforcement, the State needed to prove
beyond a reasonable doubt that Allen knowingly or intentionally forcibly
resisted, obstructed, or interfered with a law enforcement officer or a person
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 4 of 7 assisting the officer while the officer was lawfully engaged in the execution of
his duties. I.C. § 35-44.1-3-1(a)(1).
[8] Our Supreme Court has considered the elements of this crime, noting that the
word “forcibly” modifies “resists, obstructs, or interferes” and that force is an
element of the offense. Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009)
(discussing Spangler v. State, 607 N.E.2d 720 (Ind. 1993)). An individual
“‘forcibly resists’” when “‘strong, powerful, violent means are used to evade a
law enforcement official’s rightful exercise of his or her duties.’” Id. (quoting
Spangler, 607 N.E.2d at 723). The force involved does not need to rise to the
level of mayhem. Id. “It is error as a matter of law to conclude that ‘forcibly
resists’ includes all actions that are not passive.” Spangler, 607 N.E.2d at 724.
[9] Here, Allen forcibly resisted the officers as they tried to place him on the
ground and handcuff him. The evidence shows that when Officer Tevault told
Allen to show his hands, Allen did not comply and began approaching Officer
Tevault with his hands in his pocket, which made Officer Tevault consider
Allen a threat. Even when Allen did put his hands up, he continued to advance
on the officer. Officer Tevault kicked Allen to get some distance and gave knee
strikes to Allen’s mid-thigh to get him to the ground, but Allen still did not
comply.
[10] Had these actions been the only ones that Allen took during the incident, this
case might be different. However, as Officer Tevault tried to put Allen on the
ground, Allen pulled away from him and tried to stay on his feet. When Officer
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 5 of 7 Spaulding grabbed Allen, Allen’s movements made Officer Spaulding slam into
a vending machine. We find that this movement constitutes a strong and
powerful act used to evade the officers. Accordingly, sufficient evidence
supports Allen’s resisting law enforcement conviction.
II. Privilege to Resist [11] Allen next argues that if he did resist the officers, he was privileged to do so
because they used excessive force against him during his arrest. The general
rule in Indiana provides that a private citizen may not use force to resist a
peaceful arrest by an individual who he knows, or has reason to know, is a
police officer performing his duties, regardless of whether the arrest in question
is lawful. Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App. 2000). But that
general rule was not intended to “criminalize any conduct evincing resistance
where the means used to effect an arrest are unlawful.” Id. (emphasis original).
[12] Claims that law enforcement officers have used excessive force in the course of
an arrest of a free citizen are analyzed under the Fourth Amendment to the
United States Constitution and its “reasonableness” standard. Id. at 823-24
(citing Graham v. Connor, 490 U.S. 386, 395 (1989)). The reasonableness
standard requires “careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, whether the suspect
poses an immediate threat to the safety of the officers or others, and whether he
is actively resisting arrest or attempting to evade arrest by flight.” Id. at 824.
Whether a particular use of force was reasonable must be judged from the
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 6 of 7 perspective of a reasonable officer on the scene. Id. In an excessive force case,
the reasonableness inquiry is objective: “the question is whether the officers’
actions are ‘objectively reasonable’ in light of the facts and circumstances
confronting them, without regard to their underlying intent or motivation.” Id.
[13] In this case, we find that the officers’ behavior was objectively reasonable, and
therefore constitutional, because Allen’s behavior was threatening to the
officers. The officers were called specifically because Allen had a verbal
altercation with another patron and someone suspected that Allen had a gun.
Allen did not comply with Officer Tevault’s commands to show his hands, and
Allen walked toward him with a dazed look—this behavior was threatening
enough to Officer Tevault that Officer Tevault tried to distance himself from
Allen by kicking him in the sternum. Following this kick, Officer Tevault and
Officer Spaulding continued to struggle to gain control of Allen. At one point,
Allen caused Officer Spaulding to slam into a vending machine. Even after
being tased, Allen did not put his hands behind his back as he was directed to
do. In sum, Allen was actively resisting arrest. Considering this evidence, we
cannot say that the force the officers used to subdue Allen was excessive.
[14] The judgment of the trial court is affirmed.
Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017 Page 7 of 7