MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 13 2018, 9:15 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tara D. Parham, September 13, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-004 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff Judge Trial Court Cause No. 49G21-1703-CM-9701
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 1 of 7 Case Summary [1] Tara Parham appeals her conviction for resisting law enforcement, arguing that
her resistance was a justified response to an officer’s unlawful use of excessive
force. Because the evidence is sufficient to support the trial court’s conclusion
that the officer was lawfully engaged in the execution of his duties when
Parham resisted, we affirm her conviction.
Facts and Procedural History [2] On March 9, 2017, the Indianapolis Metropolitan Police Department SWAT
team, including Officer Brett Bousema, executed a high-risk, no-knock search
warrant for drugs, money, and guns at a house located at 4305 N. Irvington
Avenue in Indianapolis. According to Officer Bousema, a full-time SWAT
team officer, high-risk, no-knock search warrants are used for locating a person
who has committed a robbery or murder, or when searching for evidence of
guns or drugs. To ensure officer safety during the execution of the warrant, the
IMPD SWAT team planned to secure the area surrounding the house. This
included detaining people outside the house because the house was believed to
be associated with drugs. Houses associated with drugs “have a lot of activity .
. . suspects, or customers that are coming and going outside those homes,
frequently when we arrive.” Tr. p. 6.
[3] When the IMPD SWAT team arrived, sometime between 6:00 and 8:00 p.m.,
there were “at least five or six people” outside the house. Id. at 9. Officer
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 2 of 7 Bousema, equipped with tactical gear and dressed in full police uniform,
approached the house and used a thirty-five-pound cylinder-shaped ram to force
the door open. After opening the door, Officer Bousema heard someone yelling
and turned to see who it was. It was Parham standing in the small, shared yard
between the driveway of the house located at 4305 N. Irvington Avenue and the
driveway of her mother’s house next door. Parham was yelling “something
about the police putting their hands on her.” Id. at 10. Officer Bousema saw
that no other officers could deal with her because of the number of people
outside the house, so he approached Parham with his weapon drawn. As he
approached Parham, Officer Bousema ordered her to “get on the ground.” Id.
at 11. The other officers were able to get everyone else outside the house on the
ground. But Parham ignored Officer Bousema’s command and instead
continued yelling. Officer Bousema told Parham at least three times to “get on
the ground,” but each time she refused to comply. Id. at 13.
[4] At this point, Officer Bousema grabbed Parham’s jacket and pulled her to the
ground. After Parham went to her hands and knees, she tried to stand up and
Officer Bousema pushed her onto her right side. Once Parham was on her side,
Officer Bousema noticed a gun in her right-back waistband. Officer Bousema
holstered his gun and used his weight to keep Parham on her side so he could
remove Parham’s gun from her waistband. Officer Bousema tossed her gun a
few feet away and pulled Parham in the opposite direction. Officer Bousema
continued using his body weight to keep Parham on the ground because she
was still attempting “to twist and pull away, get away from [Officer Bousema],
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 3 of 7 and stand up.” Id. at 14. Officer Bousema told Parham to stop resisting and
put her hands behind her back, but, once again, she refused to comply.
[5] After Parham continued to struggle against his efforts to get her on her
stomach, Officer Bousema hit her three times with his fist in her midsection “to
get pain compliance.” Id. at 15. But Parham still did not stop; rather, she
continued screaming and tried to get up again using her legs and hands to push
off the ground and twist out from underneath Officer Bousema. Eventually
Officer Bousema was able to get Parham onto her stomach and get her arms
behind her back. Another officer approached and handed Officer Bousema zip
ties to detain Parham. Officer Bousema was able to get one of Parham’s hands
in the restraints but then she pulled her other hand away and tucked it
underneath her. Officer Bousema pulled Parham’s hand behind her back again
before he was finally able to get both of her hands in the restraints.
[6] The State charged Parham with resisting law enforcement, as a Class A
misdemeanor.1 After a bench trial, the trial court found Parham guilty.
[7] Parham now appeals.
1 Parham was also charged with carrying a handgun without a license, as a Class A misdemeanor, but the State dismissed that charge before trial.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 4 of 7 Discussion and Decision [8] Parham argues that there is insufficient evidence to sustain her conviction.
When reviewing sufficiency-of-the-evidence claims, we neither reweigh the
evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065,
1066 (Ind. 2015). We will only consider the evidence supporting the judgment
and any reasonable inferences that can be drawn from the evidence. Id. A
conviction will be affirmed if there is substantial evidence of probative value
supporting each element of the offense such that a reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt. Id. Finally, we
consider conflicting evidence most favorably to the trial court’s ruling. Id. at
1066-67.
[9] The State alleged that Parham knowingly or intentionally forcibly resisted,
obstructed, or interfered with a law-enforcement officer while the officer was
lawfully engaged in the execution of his duties. Appellant’s App. Vol. II p. 21;
see also Ind. Code. § 35-44.1-3-1(a)(1). Parham does not dispute that she
forcibly resisted. See Appellant’s Br. pp. 6-7, 13-14. Rather, she argues that her
resistance was a justified response to Officer Bousema’s unlawful use of
excessive force. Id. at 10. 2
2 In certain parts of her brief Parham suggests that her resistance was merely passive. See Appellant’s Br. pp. 9, 14.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 13 2018, 9:15 am
court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tara D. Parham, September 13, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-004 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Alicia A. Gooden, Appellee-Plaintiff Judge Trial Court Cause No. 49G21-1703-CM-9701
Vaidik, Chief Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 1 of 7 Case Summary [1] Tara Parham appeals her conviction for resisting law enforcement, arguing that
her resistance was a justified response to an officer’s unlawful use of excessive
force. Because the evidence is sufficient to support the trial court’s conclusion
that the officer was lawfully engaged in the execution of his duties when
Parham resisted, we affirm her conviction.
Facts and Procedural History [2] On March 9, 2017, the Indianapolis Metropolitan Police Department SWAT
team, including Officer Brett Bousema, executed a high-risk, no-knock search
warrant for drugs, money, and guns at a house located at 4305 N. Irvington
Avenue in Indianapolis. According to Officer Bousema, a full-time SWAT
team officer, high-risk, no-knock search warrants are used for locating a person
who has committed a robbery or murder, or when searching for evidence of
guns or drugs. To ensure officer safety during the execution of the warrant, the
IMPD SWAT team planned to secure the area surrounding the house. This
included detaining people outside the house because the house was believed to
be associated with drugs. Houses associated with drugs “have a lot of activity .
. . suspects, or customers that are coming and going outside those homes,
frequently when we arrive.” Tr. p. 6.
[3] When the IMPD SWAT team arrived, sometime between 6:00 and 8:00 p.m.,
there were “at least five or six people” outside the house. Id. at 9. Officer
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 2 of 7 Bousema, equipped with tactical gear and dressed in full police uniform,
approached the house and used a thirty-five-pound cylinder-shaped ram to force
the door open. After opening the door, Officer Bousema heard someone yelling
and turned to see who it was. It was Parham standing in the small, shared yard
between the driveway of the house located at 4305 N. Irvington Avenue and the
driveway of her mother’s house next door. Parham was yelling “something
about the police putting their hands on her.” Id. at 10. Officer Bousema saw
that no other officers could deal with her because of the number of people
outside the house, so he approached Parham with his weapon drawn. As he
approached Parham, Officer Bousema ordered her to “get on the ground.” Id.
at 11. The other officers were able to get everyone else outside the house on the
ground. But Parham ignored Officer Bousema’s command and instead
continued yelling. Officer Bousema told Parham at least three times to “get on
the ground,” but each time she refused to comply. Id. at 13.
[4] At this point, Officer Bousema grabbed Parham’s jacket and pulled her to the
ground. After Parham went to her hands and knees, she tried to stand up and
Officer Bousema pushed her onto her right side. Once Parham was on her side,
Officer Bousema noticed a gun in her right-back waistband. Officer Bousema
holstered his gun and used his weight to keep Parham on her side so he could
remove Parham’s gun from her waistband. Officer Bousema tossed her gun a
few feet away and pulled Parham in the opposite direction. Officer Bousema
continued using his body weight to keep Parham on the ground because she
was still attempting “to twist and pull away, get away from [Officer Bousema],
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 3 of 7 and stand up.” Id. at 14. Officer Bousema told Parham to stop resisting and
put her hands behind her back, but, once again, she refused to comply.
[5] After Parham continued to struggle against his efforts to get her on her
stomach, Officer Bousema hit her three times with his fist in her midsection “to
get pain compliance.” Id. at 15. But Parham still did not stop; rather, she
continued screaming and tried to get up again using her legs and hands to push
off the ground and twist out from underneath Officer Bousema. Eventually
Officer Bousema was able to get Parham onto her stomach and get her arms
behind her back. Another officer approached and handed Officer Bousema zip
ties to detain Parham. Officer Bousema was able to get one of Parham’s hands
in the restraints but then she pulled her other hand away and tucked it
underneath her. Officer Bousema pulled Parham’s hand behind her back again
before he was finally able to get both of her hands in the restraints.
[6] The State charged Parham with resisting law enforcement, as a Class A
misdemeanor.1 After a bench trial, the trial court found Parham guilty.
[7] Parham now appeals.
1 Parham was also charged with carrying a handgun without a license, as a Class A misdemeanor, but the State dismissed that charge before trial.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 4 of 7 Discussion and Decision [8] Parham argues that there is insufficient evidence to sustain her conviction.
When reviewing sufficiency-of-the-evidence claims, we neither reweigh the
evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065,
1066 (Ind. 2015). We will only consider the evidence supporting the judgment
and any reasonable inferences that can be drawn from the evidence. Id. A
conviction will be affirmed if there is substantial evidence of probative value
supporting each element of the offense such that a reasonable trier of fact could
have found the defendant guilty beyond a reasonable doubt. Id. Finally, we
consider conflicting evidence most favorably to the trial court’s ruling. Id. at
1066-67.
[9] The State alleged that Parham knowingly or intentionally forcibly resisted,
obstructed, or interfered with a law-enforcement officer while the officer was
lawfully engaged in the execution of his duties. Appellant’s App. Vol. II p. 21;
see also Ind. Code. § 35-44.1-3-1(a)(1). Parham does not dispute that she
forcibly resisted. See Appellant’s Br. pp. 6-7, 13-14. Rather, she argues that her
resistance was a justified response to Officer Bousema’s unlawful use of
excessive force. Id. at 10. 2
2 In certain parts of her brief Parham suggests that her resistance was merely passive. See Appellant’s Br. pp. 9, 14. However, she admits that she “attempted to stand up,” “attempted to twist her body by her hips and legs to try and get out from underneath [Officer Bousema],” “tried to use her legs and hands to push off the ground as she twisted to try to get out from underneath the officer’s weight,” and “attempted to place one hand underneath her body [as] [Officer Bousema] placed her in zip tie handcuffs.” Id. at 6-7. This is more
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 5 of 7 [10] An officer is not lawfully engaged in the execution of his duties when he uses
unconstitutionally excessive force. Love v. State, 73 N.E.3d 693, 697 (Ind.
2017). Claims that law-enforcement officers have used excessive force are
analyzed under the Fourth Amendment to the United States Constitution and
its reasonableness standard. Id. The reasonableness inquiry in an excessive-
force case is an objective one; 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. When law-
enforcement officers execute a search warrant, safety considerations require that
they secure the premises, which may include detaining current occupants.
Shotts v. State, 53 N.E.3d 526, 536 (Ind. Ct. App. 2016), trans denied. By taking
“unquestioned command of the situation,” the officers can search without fear
that occupants, who are on the premises and able to observe the course of the
search, will become disruptive, dangerous, or otherwise frustrate the search. Id.
The word “occupant” means anyone who is in the immediate vicinity of the
premises to be searched when the search is executed. Id.
[11] In this case, Officer Bousema could lawfully detain Parham because she was in
the immediate vicinity of the house located at 4305 N. Irvington Avenue when
officers were executing a high risk, no-knock search warrant.3 The question is
than enough to prove forcible resistance. See Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013); see also Lopez v. State, 926 N.E.2d 1090, 1094 (Ind. Ct. App. 2010), trans. denied. 3 Parham briefly suggests that her yelling about police “putting hands on her” was protected political speech. Appellant’s Br. p. 12 n.4. However, Parham does not make an argument as to why her yelling is a defense to
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 6 of 7 whether the steps Officer Bousema took to detain Parham were objectively
reasonable in light of the facts and circumstances confronting him. Officer
Bousema testified that it was dark outside when he arrived. Immediately after
opening the door of the house, he heard Parham yelling and saw her standing
approximately fifty feet away from him. Officer Bousema approached Parham
and asked her at least three times to get on the ground, but she did not comply.
Instead, Parham continued yelling and refused to comply. Officer Bousema
had to pull Parham to the ground, remove her gun, hit her three times with his
fist in her midsection, and cuff her before she eventually complied. During the
entire incident, Parham struggled with Officer Bousema. The trial court found
that the steps Officer Bousema took to detain Parham were reasonable because
there were multiple people around while he was executing a high-risk, no-knock
search warrant at night, looking for evidence of drugs, money, and guns, and
the “[officers] don’t know who else out there may have a weapon that could
[be] use[d] . . . against them.” Tr. pp. 34, 67, 69. This evidence is sufficient to
support the trial court’s conclusion that Officer Bousema was lawfully engaged
in the execution of his duties when Parham resisted. Therefore, we affirm
Parham’s conviction for resisting law enforcement.
[12] Affirmed.
Riley, J., and Kirsch, J., concur.
resisting law enforcement. Notably, the case Parham cites, Jordan v. State, 37 N.E.3d 525 (Ind. Ct. App. 2015), addresses how political speech may be a defense to disorderly conduct, not resisting law enforcement.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-004 | September 13, 2018 Page 7 of 7