Co u rt of Appeals of Indi a na | Memo r andum D ecision 1 9A

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### MEMORANDUM DECISION 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 d e fense of res judicata, collateral estoppel, or the law of the case

.
A TTORNEY FOR A PPELLANT Chris topher Taylor

- Price Marion County Public Defender Agency Appellate Division Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General Courtne y Staton Deputy Attorney General Indianap olis, Indiana


### I N THE 

# COURT OF APPEALS OF INDIANA

Sierra Hill , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff October 29, 2019 Court of Appeals Ca se No. 19A

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- 1083 Appeal from the Mario n Superior Court The Honorable Amy M. Jones, Judge The Honorable David Hooper, Magistrate Trial Court Cause No. 49G08

- 1808

- CM

- 28659

Crone , Judge .Co u rt of Appeals of Indi a na | Memo r andum D ecision 1 9A

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- 1083 | October 29, 2019 Page 2 of 9 

### C ase Summ ary
[1] Sierra Hill ap pe als her conviction , following a bench trial , f or class A misdeme anor resisting l a w enforcement . She asserts that the trial court abused its discretion in admitting certain evide nce . She also asserts that the State presented in sufficie nt evidence to support her conviction

. Fi nding no abuse of dis cre tion and sufficient evidence, we a f firm. 

### Facts and Procedural History
[2] On August 13, 2018, India napolis Metropoli tan Police Department Officer Nickolas Smit h was dispatched to an a uto motive r epair shop based upon a report that a person was refusing to leave

. When Officer Smith arrived , he

s poke to a manager and another employee before encounter ing Hill. She was sitting in a chair in the back of the sh op where it was dark . The sho p w as close d at the time

. Officer Smith expla ined to H i ll that he needed to speak to her out si de because the m a nager “ w anted her to leave ” and “ did not want her there

. ” Tr. Vol. 2 at 7

- 8

. Hill informed t he officer that she “ wasn ’ t going anywh ere ” and t hat he woul d “ have to take her to jail. ” Id

. 8

- 9

. Off icer Smith told Hill a second time that he needed to sp e ak with h er outside . After Hill again refused to move, Officer Smith approached her and “ grabbe d her by both wri sts, stood her up. ” Id

. at 9. Hi ll began “ f lailing her arms and turning around. ” Id . Officer Smith “ did a leg sweep [,] ” and Hill “ went to t he ground. ” Id

. While on the ground, Hill tried to tuck her arms underneath her stomach. Officer Smith “ told her to stop re sisting and give me her hands. ” Id

. He was able to get a handcuff on H ill ’ s left hand , but she was “ tucking in her rightCo u rt of Appeals of Indi a na | Memo r andum D ecision 1 9A

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- 1083 | October 29, 2019 Page 3 of 9 hand. ” Id

. After Officer Smith was finally able to cuff both hands, Hill “ was pret ty much like dead weight ” and told the officer tha t he “ was going to have to drag her out. ” Id . Officer Smith stood Hill up , and she dragge d her feet as he brought her outside

.
[3] The State c harged Hill with c lass A m isdemean or criminal trespass and class A misdeme anor resisting law enforce ment. A b ench trial was h eld o n Apri l 15 , 2019 . After the State presented its evidence, the trial court sua sponte dismissed the criminal tr e spass charge purs uant to Indiana Trial Rule 41( B )

. A f ter Hill presented her e viden ce, t he tri al court found her guilty of resisting law enfor cement and sentenced her to one year of informa l probation and si xteen hou rs of community service. This appeal ensued. 

### Dis cussion and Decision Section 1

– The t rial court did not abuse its di scretion i n admi tting certain evidence.
[4] Hill contends that the trial court abused its discretion in admitting c e rtain evidence. A trial court has broad discre tion to admit or exclude evid ence, including purported hearsay. Bloun t v. State , 22 N.E.3d 559, 564 (Ind. 2014)

. We will di stu rb the ruling only if it amounts to an abuse of disc re t ion, meaning the court ’ s decisi on is cl ea rly ag ainst the logic and effect of the facts and circumstance s or is a misinterpretation of the law. Id

.
[5] Hill claims that the trial court abus ed its disc retion when it permitted O ffice r Smith to testify , over her objection , regarding a hearsay statement made to himCo u rt of Appeals of Indi a na | Memo r andum D ecision 1 9A

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. Sp e cifically, Officer Smith testified that after he identified himself to Hill as a police officer , he explained to her that the manager “ wante d he r to le ave ” a nd that he n eeded to speak to her outside because the manager “ did not want her there. ” Tr. Vol. 2 at 7

- 8

. In overru ling Hill ’ s hearsay objection, t he trial court explained that the statement would be admitted as “ course - of

- investigation ” test imony “ for th e limit ed purpose to sh ow wh y the officer [wa s ] engaged in hi s duties. ” Id

.
[6] Hearsay is an o ut
- o f

- court stateme nt offered for “t he truth of the matter asserted,” Ind. Evid ence Ru le 801 (c)(2) , and it is generally not admissible a s evidence. Ind. Eviden ce Rule 802 . “Whether a statement i s hearsay ... will most often hinge on the purp ose for which i t is offered .” Blou nt , 22 N.E.3d at 565 (qu oting United States v. Linwood , 142 F.3d 418, 425 (7th Cir. 1998 ) )

. In Blount , o ur supreme court explained the purposes and dangers of “ cours e - of

in vesti gation ” testimony : Although course

- of

- investigation testimony may help prosecutors give the j u ry s ome context, it is often of little consequence to the ultimate determination of guilt or innocence. The core issue at trial is, of course, w h at t he def endant did (or did not do), not why the investigator did (or did not do) something. Thus, course

- of

i nves tigation testimony is excluded from hearsay only for a limited purpose: to bridge gap s in the trial testimony that would otherwise substanti a ll y confus e or mislead the jury.... Indeed, such testimony is of little value absent a direct challenge to the legi timacy of the investigation.... The ultimate inquiry is: Was the out

- of

- court stateme nt used primarily to show the truth of i ts content, con sti tu ting i nadmissible hearsay, or merely to explain subsequent police action, excluded from hearsay?Co u rt of Appeals of Indi a na | Memo r andum D ecision 1 9A

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- 1083 | October 29, 2019 Page 5 of 9 Id . at 565

- 66 (ci ta tions and quotation marks omitted).

[7] To determine whether a statement received by a police officer engaged i n an investigation constitutes inadmissible hearsay, we conduct a three

- part test

. Id

. at 566

. First, we determin e if the testimony described an out

- of

- court statement that asserts a fact susceptible of being true or false

. Id

. If that answer is yes , we
ne xt determine the evidentiary purpose of the p r offe red statement

. Id . at 567

. S pecifically, we consider whether the statement is of f

ered for a purpose other tha n to prove the fact which is asserted

. Id

. Aga in, if that an swer is yes, we d ete rm ine if the fact to be proven by th e statement is relevant to some issue in the case, and if there is any d a nger of unfair prejudice that outweighs the probative value

. Id

.
[8] Here, Office r Smith ’ s te stimon y re garding the manager ’ s o ut
- of

- court state ment that he wanted Hill to lea ve the property wa s cle arly asserting a fact susceptible of being t r ue or false. But, the evidentiary purpose o f the out

- of

- court statemen t

was not to prove that fact . Tha t is to say, the evidentiary purpose was not to prov e that the manager wanted Hill to leave or that H i ll w as committing criminal tre spass
. Rather, the evidentiary purpose a nd relevan ce of the
st ate ment was to exp lain “ why ” Officer Smith , in his offici al c ap acity as a police officer, had an encounter with H ill . Tr. Vol. 2 at 8

. I n deed , the trial court, a s th e tr ier of fact in th is bench trial, gave assurances that th e statement

w as being admitted for th at limited purpose
. Id

. U nder the circu mstances , we are confident that the state ment w a s considered onl y for its non - h earsay purpose rather than for its tru t h

.Co u rt of Appeals of Indi a na | Memo r andum D ecision 1 9A

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- 1083 | October 29, 2019 Page 6 of 9 [9] We note that our courts are most concerned with the danger of u nf air preju d ice wh en the out
- of

- court assertion directly implicates the de fendant in the instant crime or a crime si m i lar to the one w ith w hich he or she is charged

. See B l ount , 22 N.E.3d at 566

. A ltho ugh Hill was initially charged with criminal trespass, and the manager ’ s s tatement would have implica ted Hill in that crime, the State abandoned any attempt to prove th a t offe nse , and th e t rial court sua sponte dismissed th at charge at the conclusion of the State ’ s e vidence. According l y,
we per ceive no danger of unfair prejudice here

. W e conclude that t he trial court did not abuse its disc retion in admitting the challenged ev idence.



### Sec ti o n 2

– The State presented s ufficient evidence to support H ill ’ s co nviction.
[10] We next address Hill ’ s cla im that the State presented insufficient evidence to support her c onviction

. When reviewing a challenge to the sufficiency of evidence, we neither rew ei gh evi dence nor judge witness credibility

. Moore v. State , 27 N.E.3d 749, 754 (Ind. 2015)

. Rather, we consider o nl y the evidence and reasonabl e inferences m ost favorable to the judgment and will affirm the convic t ion un less no reasonable factfinder could find the elements of the cri me proven beyond a reasonable doub t

. Id

. Reversal is appropriate only when reasonable persons would be unable to f orm inferen ces as to each material element of the offens e
. McCray v. State , 850 N.E.2d 998, 1000 (Ind. Ct. App. 2006) , trans. d enied . The evidence need not “ov ercome every rea sonable hypoth esis of innocence.” Dalton v. State , 56 N.E.3d 644, 647 ( I n d

. C t

. A p p . 2 0 1 6 ) (quot ing Drane v. State , 867 N.E.2d 144, 147 (Ind. 2007) ), trans. denied

.Co u rt of Appeals of Indi a na | Memo r andum D ecision 1 9A

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- 1083 | October 29, 2019 Page 7 of 9 [11] To convict H i ll of re sisting law enforcement as a c lass A misdemea nor, the State wa s re quired to prove beyond a reasonable doubt that Hill knowingly or inten tionally fo rc ibly r esisted, obstructed, or interfered with a law enforcement officer or a person assisting the o fficer w hile the officer was lawfully engaged in
t he execution of the offi cer ’ s duties

. I nd . Code § 35

- 44.1

- 3

- 1(a)(1)

. H ill ’ s sole assertion is that the State presented insufficient e vide n ce that O fficer Smith w as lawful ly engaged in the execution of his dut ies during their encounter

. 1

[12] Of ficer Smith testified that he identified h im self as a p olice officer to Hill , informed her why he had been summo ned , and asked her to step outside of the shop to spe ak with him . S mith refused and told Officer Smith that he would just have to take her to jail

. When Officer Smith attempted to dire ct Smith

ou ts ide, a struggle en s ued

. Hill contends that absent the manager ’ s “ hearsay ”
statement discussed abo v e , “ no substantive evidence exists that Officer Smith

w as lawfully eng aged i n his duties ” during the encounter. Reply Br. a t 10. However, as we have con cl ude d , the man ager ’ s state ment was not hearsay , as it

was n ot admitted to prove the truth of the ma t ter asserted therein

. Rather, it

was properly admitted as substantive eviden ce as to why Officer Smith, in his official capacity as a police of ficer, had a n encoun ter with Hill

. Officer Smith ’ s testimony was sufficient to prove that he was lawfully enga g ed in the execution of his duties at the ti me of the enco unter

.

1 Hill does not challenge th e sufficiency of the State ’ s pr oo f on any other e lement of the offense.Co u rt of Appeals of Indi a na | Memo r andum D ecision 1 9A

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- 1083 | October 29, 2019 Page 8 of 9 [13] H i ll m ain tain s that since the State ne ver prove d that she was in fact committ ing a crime (cr im inal t re s pass) by refusing to leave the shop , the State could not prove that Officer Sm ith had th e authority to ask her to leave or to arrest her for refusing to do so

. We agree with the St ate that much of H i ll ’ s argument in this regard ap pe ars to confl at e “ la w fully engaged in [ the execution of the officer ’ s ] duties ” with “ lawfully arresting. ” State ’ s Br. a t 12

. Regard less o f whether an arrest is lawful, a citizen can not resist a peaceful arrest by a police officer

. 2 Shoultz v. State , 735 N.E.2d 818, 823 (Ind. Ct. App. 2000) , trans. d enied (2001) ;

s ee also Dora v. State , 783 N.E.2d 322, 327 (Ind. Ct. App. 2003) (holding that de term ining the lawfuln ess of an arrest should be decided by courts and not by emotional citizens) , trans. denied

. 3 Hi ll is pr ohib it ed f ro m resisting an arrest simpl y because s he thinks it is unlawful. The trial court reasonably f ound that Hill knowingly or intentionally forcib ly resisted Officer Smith while he was lawfully engaged in the exe cution of his duties . Th e S tat e presented su fficie nt evidence to support H ill ’ s convic tion.

2 I n h er reply brief, Hill cl aims that Officer Smith used excessive force when trying t o dire ct her out of the shop, and therefore he was not “ lawfully ” engaged in his duti es. Reply B r . at 11. T h is argument is waived because it was raised for the first time in a reply br ief. See Jones v. S t ate , 22 N.E.3d 877, 881 n. 4 (Ind. Ct. App. 2014) ( no ting that a p arty may not raise an argument for the first time in a reply brief ).
3 Th e rul e that a citizen cannot resist e ve n an u nlawful arrest has not been in terpr eted as a blanket prohibit ion that c r im in alizes any conduct evincing resistance whe re the “ means used ” to affect an arrest are unl a wful

. Als pach v. State , 755 N.E.2d 209, 211 (Ind. Ct. App. 2001) , trans denied . For example, “ we have recognized an exception where polic e unlawfully enter a person ’ s residence, de termining that a greater p rivile ge exist s to res ist an unlawful entry into private premi ses than to resist an u n lawful arrest in a public place. ” Id

. (citations omitted).Co u rt of Appeals of Indi a na | Memo r andum D ecision 1 9A

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- 1083 | October 29, 2019 Page 9 of 9 [14] Affirmed.

Baker, J., and Kirsch, J., concur.