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ATTORNEY FOR APPELLANT

Anthony C. Lawrence

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Richard C. Webster

Deputy Attorney General

Indianapolis, Indiana 

_____________________________________________________________________________

In the

Indiana Supreme Court 

_________________________________

No. 48S02-1406-CR-415

DONALD MURDOCK, Appellant (Defendant),

v.

STATE OF INDIANA, Appellee (Plaintiff).

_________________________________

Appeal from the Madison Circuit Court, No. 48C06-1107-FC-1358 

The Honorable Dennis Carroll, Judge

_________________________________

On Transfer from the Indiana Court of Appeals, No. 48A02-1306-CR-565

_________________________________

June 27, 2014

Dickson, Chief Justice.

Donald Murdock was found to have violated the terms of his probation when he 

committed a new offense: Resisting Law Enforcement, a Class A misdemeanor. His appeal 

argues that the evidence was insufficient to support the revocation of his probation. The Court of 

Appeals affirmed the revocation. Murdock v. State, 5 N.E.3d 792 (Ind. Ct. App. 2014). 

We grant transfer and likewise find the evidence sufficient to prove the elements of Resisting 

Law Enforcement—but we do so based on the reasoning used in our decision today in Gaddie v. 

State, No. 49S02-1312-CR-789, ___ N.E.3d ___ (Ind. 2014), where we found the evidence 

insufficient. 
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On May 9, 2013, the State filed a notice of probation violation, alleging in part that the 

defendant violated the terms of his probation by committing Resisting Law Enforcement as a 

Class A misdemeanor. The notice did not specify the subsection of the statute alleged to have 

been committed. An evidentiary hearing was held on June 10, 2013, during which Indianapolis

Metropolitan Police Officer Vincent Stewart testified that he came into contact with the 

defendant at approximately 10:00 p.m. on April 3, 2013 in Marion County after another officer, 

Officer Richard Weaver, radioed that a white male wearing a white t-shirt was running from him. 

Officer Stewart did not know the nature of the contact between Officer Weaver and the 

defendant. Officer Stewart was in uniform and in a marked car. Officer Stewart testified that 

after Weaver's call, he and several other officers set up a perimeter in the apartment complex, 

which he described as ten to fifteen percent occupied and located in a high-crime area. He and 

the other officers began canvassing the area and checking vacant apartments. While in a vacant 

apartment, Stewart heard a noise and then saw the defendant—matching the physical description 

of the suspect—run out the back of the apartment. Officer Stewart gave chase, identifying

himself as a police officer and ordering the defendant to stop, but the defendant continued 

running. After about fifteen to twenty feet, Stewart caught up with the defendant in a creek and 

tried to grab him. The defendant pushed Stewart away, causing injury and pain to Stewart's left 

knee. The defendant continued to resist, so Officer Stewart sprayed him with pepper spray and

took him into custody. 

The trial court found by a preponderance of evidence that the defendant violated the 

conditions of his probation by committing Resisting Law Enforcement as a class A misdemeanor 

by fleeing. The court ordered that the defendant serve three-and-one-half years of his previously 

suspended sentence. On appeal, the defendant claims that the evidence was insufficient to 

support the trial court's decision to revoke his probation. 

"Probation is a matter of grace left to trial court discretion, not a right to which a criminal 

defendant is entitled." Prewitt v. State, 878 N.E.2d 184, 188 (Ind. 2007) (explaining that: "Once 

a trial court has exercised its grace by ordering probation rather than incarceration, the judge 

should have considerable leeway in deciding how to proceed. If this discretion were not afforded 
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to trial courts and sentences were scrutinized too severely on appeal, trial judges might be less 

inclined to order probation to future defendants."). A probation hearing is civil in nature, and the 

State must prove an alleged probation violation by a preponderance of the evidence. Braxton v. 

State, 651 N.E.2d 268, 270 (Ind. 1995); see Ind. Code § 35-38-2-3(f) (2012). When the 

sufficiency of evidence is at issue, we consider only the evidence most favorable to the 

judgment—without regard to weight or credibility—and will affirm if "there is substantial 

evidence of probative value to support the trial court's conclusion that a probationer has violated 

any condition of probation." Braxton, 651 N.E.2d at 270. 

In relevant part, the resisting statute provides: "A person who knowingly or 

intentionally . . . (3) flees from a law enforcement officer after the officer has, by visible or 

audible means . . . identified himself or herself and ordered the person to stop; commits resisting 

law enforcement, a Class A misdemeanor . . . ." Ind. Code § 35-44.1-3-1(a)(3) (2013).1 In 

Gaddie, we held that this statute must be construed to require that a law enforcement officer's 

order to stop be based on reasonable suspicion or probable cause of criminal activity. 

No. 49S02-1312-CR-789, slip op. at 8, ___ N.E.3d at ___. The defendant does not dispute that 

he fled after Officer Stewart identified himself and ordered the defendant stop; rather, he

contends that the State failed to prove that Officer Stewart had either a warrant for the 

defendant's arrest or the requisite reasonable suspicion of criminal activity. We disagree. 

The evidence most favorable to the trial court's judgment shows the police officer had the 

requisite reasonable suspicion that criminal activity was afoot. The State presented the following 

evidence: A police officer responded to a report of a suspect running away from another officer 

at nighttime. The officer then helped establish a perimeter around a largely unoccupied 

apartment complex in a high-crime area. While inspecting a vacant apartment, the officer saw 

the defendant, who matched the description of the fleeing suspect, run out the back of the 

apartment. When the officer caught up with the defendant, the defendant resisted arrest and 

caused injury to the officer. In contrast, the police officer in Gaddie responded to a disturbance 

report. When the officer arrived, a number of people were standing in the front area of a private 

 1 This statute has been recodified. It was previously listed under Indiana Code section 

35-44-3-3(a)(3) (2011) and amended in ways immaterial to this opinion.
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residence, but the defendant was walking away from the scene, towards the backyard, and

continued walking away after the officer's order to stop. The officer in Gaddie testified that he 

had not seen the defendant or anyone else commit a crime prior to ordering the defendant to stop. 

While a refusal to cooperate, without more, does not furnish the minimal level of objective 

justification needed for a detention or seizure, "nervous, evasive behavior is a pertinent factor in 

determining reasonable suspicion." Gaddie, No. 49S02-1312-CR-789, slip op. at 7, ___ N.E.3d 

at ___ (quoting Illinois v. Wardlow, 528 U.S. 119, 124, 120 S.Ct. 673, 676, 145 L.Ed.2d 570, 

576 (2000)); see State v. Atkins, 834 N.E.2d 1028, 1033–34 (Ind. 2005) (holding that the 

investigatory stop lacked reasonable suspicion that criminal activity was afoot but adding that 

"[t]his case might have been different if [the defendant] had fled, engaged in furtive activity, and 

was uncooperative, or if [the officer] had a description of the suspect that was corroborated upon 

seeing [the defendant]."). 

In this case, the defendant ran when the officer appeared, engaged in furtive and evasive 

activity in a high-crime area, was uncooperative, and matched the description of the suspect. 

Cf. Wardlow, 528 U.S. at 124–25, 120 S.Ct. at 676, 145 L.Ed.2d at 576–77 (concluding that a 

suspect's unprovoked flight upon noticing the police in an area known to have a high incidence 

of drug trafficking supported a finding of reasonable suspicion). As a condition of probation, the 

defendant was, by statute, required not to commit any crimes. The evidence and its reasonable 

inferences clearly established that the defendant knowingly or intentionally fled from a law 

enforcement officer’s order to stop that was based on reasonable suspicion of criminal activity 

and thus committed the offense of Resisting Law Enforcement. Substantial evidence of 

probative value supports the trial court's decision that the defendant violated the terms of his 

probation. 

Conclusion

Accordingly, we now grant transfer and affirm the trial court's revocation of the 

defendant's probation. 

Rucker, David, Massa, Rush, JJ., concur.