## FOR PUBLICATION

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : SUZY ST. JOHN GREGORY F. ZOELLER Indianapolis, Indiana Attorney General of Indiana AARON J. SPOLARICH Deputy Attorney General Indianapolis, Indiana


## IN THE COURT OF APPEALS OF INDIANA

DEMETRIUS WALKER, ) ) Appellant

- Defendant, ) ) vs. ) No. 49A02

- 1205

- CR

- 380 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Linda Brown, Judge Cause No. 49F10

- 1203

- CM

- 19943
January 30, 2013 OPINION

– FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Defendant , Demetrius Walker ( Walker ) , appeals his conviction for resisting law enforcement, a Class A misdemeanor, Ind. Code § 35

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We affirm

. ISSUE Walker rais es one issue on appeal which we restate as: Whether the State presented sufficient evidence beyond a reasonable doubt to sustain his conviction.

FACTS AND PROCEDURAL HISTORY At approximately 12:25 a.m. on March 25, 2012, Officer Jason Ehret (Officer Eh ret) of the Indianapolis Metropolitan Police Department was dispatched to a fight in progress. At the intersection of South Sheffield Avenue and West Ray Street, the Officer was flagged down by a group of twenty

- five to thirty people. He noticed two men, later identified as Cory Finch (Finch) and Walker, standing at the intersection, “[y]elling and cussing back and forth at each other.” (Transcript p. 8). At the time the Officer arrived, Walker appeared to walk away from Finch. However, Finch “was yell ing towards” Walker and Walker then started walking back to Finch. (Tr. p. 8). Officer Ehret ordered
t he men to stay separate and the n lay flat on the ground. Walker and Finch ignored the order and continued to move towards each other. Finch “threw a p unch towards [Walker][;]” Walker retaliated and “they threw a couple more” for about ten to fifteen

1 At the time of Walker’s offense, resisting law enforcement was codified at Ind. Code § 35

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- 3. However, effective July 1, 2012, Public Law 126

- 2012 repealed that section and codified the offense under I.C. § 35

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- 1. The Legislature did not alter the language or the requirements of the offense.3

seconds. (Tr. p. 9). Officer Ehret repeatedly ordered the men to stop fighting and to lay on the ground. Finally, the Officer gave them a final warning, announcing that if they refused to comply they would be tased. Once the Officer said “tased,” Finch dropped to the ground with his arms out flat. (Tr. p. 11). Walker turned towards the Officer “with his clinched fists, and kind of stared at [the Officer ] for a second, and then walk[ed] towards [him]. (Tr. p. 11). The Officer repeated his instruction to drop to the ground, but Walker continued to walk towards him with his “arms and fists [] clinched in an aggressive manner.” (Tr. p. 11). When Walker w as about three to four feet away from the Officer, the Officer t as ed Walker. Walker fell to the ground and submitted to being handcuffed without incident. On March 25, 2012, the State filed an Information charging Walker with Count I, resisting law enf

orcement, a Class A misdemeanor, I.C. § 35

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- 1 and Count II, disorderly conduct, a Class B misdemeanor, I.C.§ 35

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- 3. On April 18, 2012, the trial court conducted a bench trial. At the close of the State’s evidence, Walker moved for involuntary d ismissal of both Counts. The trial court denied the motion as to Count I but granted the motion as to Count II. After Walker rested, the trial court found him guilty of Count I and sentenced Walker to ninety days in the Marion County Jail. Walker now a ppeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION Walker contends that the State failed to present sufficient evidence to sustain his conviction for resisting law enforcement. When reviewing a sufficiency of the evidence cl aim, we neither reweigh the evidence nor assess the credibility of the witnesses.4

Vanderlinden v. State , 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. denied

. We may look only to the evidence most favorable to the judgment and reasonable inferences th erefrom and will affirm if we conclude that evidence of probative value exists such that a reasonable fact finder could find the elements of the underlying crime proven beyond a reasonable doubt. Id

. To convict Walker of resisting law enforcement as a Class A misdemeanor, the State was required to establish beyond a reasonable doubt that Walker knowingly or intentionally forcibly resisted, obstructed, or interfered with a law enforcement officer or a person assisting the officer while the officer is law fully engaged in the execution of the officer’s duties. See I.C. § 35

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- 1. Focusing on the “forcibly resisting” element of the charge, Walker argues that because he did not physically resist the Officer but merely disobeyed his command to drop to th e floor, he cannot be found guilty under the statute. Indiana courts have grappled with the issue of when resistance, obstruction, or interference rises to the level of forcible resistance, obstruction or interference. In Spangler v. State , 607 N.E.2d 72 0, 723 (Ind. 1993), our supreme court clarified that “forcibly modified the entire string of verbs in that particular section of the stat ute , due to the placement of the adverb before the string of verbs in that particular section.” As such, the supreme c ourt noted that “ on e forcibly resists law enforcement when strong, powerful, violent means are used to evade a law enforcement officer’s rightful exercise of his or her duties. ” Id

. We tempered the Spangler definition of forceful in Johnson v.
State , 833 N.E.2d 516, 519 (Ind. Ct. App. 2005), when we stated that “our jurisprudence has not read ‘violent’ to mean that which is thought of in common parlance.” We5

concluded that “until we are i nstructed otherwise by our [s]upreme [c]ourt, we see no
reason to a pply what appears to be an overly strict definition of ‘forcibly resist ing [.]’” Id

. Our supreme court relied on Johnson , when it declared that “the force involved need not rise to the level of mayhem” and recognized that a “modest level of resistance may suffice.” Graham v. State , 903 N.E.2d 963, 965 (Ind. 2009). On the other hand, passive inaction is insufficient to rise to the level of forcible resistance. In A.C. v. State , 929 N.E.2d 907, 911 (Ind. Ct. App. 2010), we determined that refusing to sta nd, without more, does not trigger the statute. Even if passive resistance requires police officers to use force, it is insufficiently forceful. See , e.g., Colvin v. State , 916 N.E.2d 306, 307

- 09 (Ind. Ct. App. 2009), trans. denied (refusing to comply wi th officers’ commands to remove hands from pockets is not forcible resistance even though officers had to physically place defendant on the ground); Braster v. State , 596 N.E.2d 278, 280 (Ind. Ct. App. 1992), trans. denied (defendant remained standing afte r being ordered to lie on the floor and the officer swept defendant’s legs out from underneath him). Moreover, even if a defendant’s resistance, obstruction, or interference is not passive, it still may fall short of being considered “forcible.” In Spang ler , 607 N.E.2d at 721, when a sheriff’s deputy attempted to serve the defendant with process, the defendant told the officer “I told you not to bother me at work . . . Don’t you ever bother me at work again.” The defendant then turned around and walked a way from the officer. Id . Even though the officer told Spangler to “come back here,” Spangler refused. Id

. The Spangler court held that this was resistance, but not forcible resistance. Id . at 724

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However, a dhering to the rule that the statute re quires only modest levels of force, our supreme court has indicated that merely stiffening one’s arms instead of presenting them for handcuffing suffices for force. Graham , 903 N.E.2d at 966. Recently, in Pogue v. State , 937 N.E.2d 1253, 1258 (Ind. Ct. A pp. 2010), trans. denied , we declared that merely showing “strength and a threat of violence” is sufficient to prove forcible resistance, obstruction, or interference. In Pogue , a police officer ordered the defendant to drop a box cutter that he was holdi ng. Id . at 1256. When Pogue attempted to move the box cutter unto his pocket, the officer tackled Pogue to the ground. Id

. In Stansberry v. State , 954 N.E.2d 507 , 509 (Ind. Ct. App. 2011) , the defendant pulled his shirt over the top of his hea d and c harged at the officer from ten feet away. The officer drew his pepper spray and announced that he would spray Stansberry if he continued moving closer. Id . Stansberry disobeyed and kept charging, so the officer sprayed him in the face from six feet away

. Id . After citing to Pogue with approval, the Stansberry court nevertheless reversed the conviction : Here, the trial court stated that “I’m satisfied that the attempted resisting was forcible.” Thus the trial court expressly found that Stansberry did not resist, obstruct, or interfere with [the officer’ s] execution of his duties. I f we were working on a blank slate, we may have reached a different conclusion on these facts. However, given the trial court’s findings, Stansberry could not be convicted of [r]esisting [l]aw [e]nforcement. Id . at 511. The situation before us clearly falls within Pogue and its progeny. After Officer Ehret told Walker and Finch that he would use his tazer if they failed to comply with his7

order to drop to the ground, Walke r disobeyed. Instead, Walker turned towards the Officer, stared at him, clinched his fists in an aggressive manner, and started walking towards him . Officer Ehret continued to demand Walker to drop to the floor, but when Walker was three to four feet awa y from the Officer, the Officer deployed his tazer. By these action s , we conclude that Walker displayed his “strength and a threat of violence” to satisfy the charge of forcibly resisting law enforcement. See Pogue , 937 N.E.2d at 1258. CONCLUSION Based o n the foregoing, we conclude that the State presented sufficient evidence beyond a reasonable doubt to sustain Walker’s conviction. Affirmed

. BAKER, J. and BARNES, J. concur