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, Judge
2

STATEMENT OF THE CASE

Appellant-Defendant, Demetrius Walker (Walker), appeals his conviction for 

resisting law enforcement, a Class A misdemeanor, Ind. Code § 35-44.1-3-1.

1

 

We affirm.

ISSUE

Walker raises 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 

Ehret) 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 yelling towards” 

Walker and Walker then started walking back to Finch. (Tr. p. 8). Officer Ehret ordered 

the men to stay separate and then lay flat on the ground. Walker and Finch ignored the 

order and continued to move towards each other. Finch “threw a punch 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 § 35-44-3-3. 

However, effective July 1, 2012, Public Law 126-2012 repealed that section and codified the offense 

under I.C. § 35-44.1-3-1. 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 was about three to four feet away from 

the Officer, the Officer tased 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 enforcement, a Class A misdemeanor, I.C. § 35-44.1-3-1 and Count II, 

disorderly conduct, a Class B misdemeanor, I.C.§ 35-45-1-3. On April 18, 2012, the trial 

court conducted a bench trial. At the close of the State’s evidence, Walker moved for 

involuntary dismissal 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 appeals. 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 

claim, we neither reweigh the evidence nor assess the credibility of the witnesses. 
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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 

therefrom 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 lawfully engaged in the execution of the 

officer’s duties. See I.C. § 35-44.1-3-1. 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 the 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 720, 723 (Ind. 1993), our supreme court clarified that 

“forcibly modified the entire string of verbs in that particular section of the statute, due to 

the placement of the adverb before the string of verbs in that particular section.” As such, 

the supreme court noted that “one 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.” We 
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concluded that “until we are instructed otherwise by our [s]upreme [c]ourt, we see no 

reason to apply what appears to be an overly strict definition of ‘forcibly resisting[.]’” 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 stand, 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 with 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 

after 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 Spangler, 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 away 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 724-25. 
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However, adhering to the rule that the statute requires 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. App. 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 holding. 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 head and charged 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. If 

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 his 
7

order to drop to the ground, Walker 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 away from the Officer, the Officer deployed his tazer. By

these actions, 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 on 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