Court of Appeals of Indiana | Opinion 18A

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A TTORNEY FOR A PPELLANT Rory Gallagher Marion County Public Defender Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Andrew A. Kobe Section Chief, Criminal Appeals Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA
Laperria Marie Brooks , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. October 31, 2018 Court of Appeals Ca se No. 18A

- CR

- 759 Appeal from the Marion Superior Court The Honorable Amy M. Jones, Judge Trial Court Cause No. 49G08

- 1707

- CM

- 26623

Pyle , Judge .



### Statement of the CaseCourt of Appeals of Indiana | Opinion 18A

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[1] Laperria Brooks (“Brooks”) was convicted following a bench trial of Class A misdemeanor criminal trespass, 1 Class A misdemeanor resisting law enforcement , 2 and Class B misdemeanor disorderly conduct. 3 On appeal, Brooks argues that there was insufficient evidence to support only her conviction for resisting law enforcement

. Finding that there wa s ins ufficient evidence to support her conviction , we reverse her conviction for resisting law enforcement. We remand with instructions for the trial court to vacate the Class A misdemeanor resisting law enforcement conviction and enter a new sentencing order and abstract of judgment to reflect the vacated conviction

.
[2] We reverse
. 

### Issue
Whether there was sufficient evidence to support Brooks ’ resisting law enforcement conviction. 

### Facts

[3] On July 19, 20 17, Brooks attempted to cash a check at a Kroger store in Indianapolis. Brooks became upset when the manager told her that Kroger would not cash her check because she did not have proper identification. Brooks started yelling loudly and “disrupting the whole store

. ” (Tr. 8). The

1 I ND
. C ODE § 35

- 43

- 2

- 2.
2 I.C. § 35

- 44.1

- 3

- 1.
3 I.C. § 35

- 45

- 1

- 3.Court of Appeals of Indiana | Opinion 18A

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ma nager informed Brooks that she needed to leave the store several times, but

s he refused. T he manager then called the police.

[4] Officer Jonathon Wi l ley (“Officer Wil l ey”) of the Indianapolis Metropolitan Police Department arrived at the Kroger store and found Brooks refusing to leave the store. Brooks was still yelling loudly and attracting the attention of other customers. Officer Wil l ey told Brooks multiple times to stop yelling and
to leave the store, but Brooks refused. Eventually, Officer Wi l ley p ut his arm around Brooks and tried to walk her out of Kroger. Brooks recoiled at Officer Wi l ley’s touch. Brooks told Officer Wil l ey that she would walk out of the store if he took his arm off her. Officer Wil l ey removed his arm, and Brooks left the
stor e.

[5] After Brooks left Kroger, Officer Wil l ey told her that she needed to leave the parking lot as well. Brooks refused and continued to be “very loud ” even after Officer Wil l ey warned her multiple times that she would be arrested for trespassing if she d id not leave. (Tr. 15). Brooks refused to leave the parking lot. Officer Wil l ey informed Brooks that she was under arrest and to put her hands behind her back. When Officer Wil l ey tried to handcuff Brooks, “[s]he tensed up and would n’t give [him] her a rms .” (Tr. 15 ). At trial, the State asked Officer Wil l ey, “[w]as [Brooks] using force to get away?” (Tr. 16). Officer Wil l ey responded, “ [s]he was using her physical stature to not give u s her arms.” (Tr. 16). With the assistance of a second officer, Officer Wil l ey was able to handcuff Brooks and place her under arrest.Court of Appeals of Indiana | Opinion 18A

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[6] On July 20, 2017, the State charged Brooks with: Count I, criminal trespass, a Class A misdemeanor; Count II resisting law enforcement, a Class A misdemeanor; and Count III, disorderl y conduct, a Class B misdemeanor. The matter proceeded to a bench trial on March 9, 2018. Brooks, the Kroger manager , and Officer Willey testified to the facts above. The trial court found Brooks guilty of all three counts. The trial court sentenced Br ooks to concurrent sentences of one (1) year on Counts I and II, with a concurrent sentence of 180 days on Count III. The court suspended the sentence , except for time served , and sentenced Brooks to 361 days of probation. 

### Decision

[7] Brooks challenges the sufficiency of the evidence for only her resisting law enforcement conviction. Our standard of review for sufficiency of evidence claims is well settled. We do not assess the credibility of the witnesses or reweigh the evidence in d etermining whether the evidence is sufficient. Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007). We consider only the probative evidence and reasonable inferences supporting the verdict. Id

. Reversal is appropriate only when no reasonable fact

- finder co uld find the elements of the crime proven beyond a reasonable doubt. Id

.
[8] I n order to convict Brooks of resisting law enforcement, the State was required to prove beyond a reasonable doubt that: (1) Brooks ; (2) knowingly; (3) forcibly resisted, obstructe d , or interfered with ; ( 4 ) Jonathan Willey, a law enforcement officer; ( 6 ) while said officer was lawfully engaged in his duties as a lawCourt of Appeals of Indiana | Opinion 18A

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enforcement officer. I.C. § 35

- 44.1

- 3

- 1(a)(1) (emphasis added)

. On appeal, Brooks maintains that the evidence is ins ufficient to show that she forcibly resisted Officer Willey. We agree.

[9] Our supreme court held that any action to resist must be done with force. Spangler v. State , 607 N.E.2d 720, 724 (Ind. 1993) (reversing defendant’s conviction for resisting law enfo rcement because there was insufficient evidence of force where defendant merely resisted service of process by vehemently refusing to accept service and turning and walking away). “ [ O ] ne ‘forcibly resists’ law enforcement when strong , powerful , violent means are used to evade a law enforcement official’s rightful exercise of his or her duties.” Id . at 723 (emphasis added). The forcible resist ance element requires “some form of violent action toward another.” Id

. at 724. “It is error as a matter of l aw to conclude that ‘forcibly resists’ includes all actions that are not passive.” Id

. “The force involved need not rise to the level of mayhem.” Graham v. State , 903 N.E.2d 963 , 965 (Ind. 2009)

. Indeed, “turn[ing] [and] pull[ing] away” from a law enfo rcement encounter, K.W. v. State , 984 N.E.2d 610, 612

- 13 (Ind. 2013), leaning away from an officer’s grasp, A.C. v. State , 929 N.E.2d 907, 912 (Ind. Ct. App. 2010), refusing to present arms for handcuffing, Graham , 903 N.E.2d 966, “twisting and turning ‘a little bit’” against an officer’s actions, Ajabu v. State , 704 N.E.2d 494, 495

- 96 (Ind. Ct. App. 1998), or walking away from a law enforcement encounter, Spangler , 607 N.E.2d at 724 , do not establish forcibly resisting law enforcement.Court of Appeals of Indiana | Opinion 18A

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[10] In the instant case , both Officer Willey and Brooks testified to the events surrounding her arrest

. Officer Willey testified in relevant part as follows: [Officer Willey] : She tensed up and wouldn’t give me her arms. * * * [Officer Willey] : She just kep t tensing up a nd pulling away. * * * [State] : Was she using force to get away? [Officer Willey] : She was using her physical stature to not give us her arms. (Tr. 15

- 16). Brooks testified on direct examination as follows: [Brooks’ Attorney] : And you admit that you did tense up when he touched you. Right? [Brooks] : Yes sir. [ Brooks’ Attorney ] : And you pulled away some? [ Brooks ] : Yes sir. (Tr. 23).
[11] Here, n othing in the testimony from Officer Willey or Brooks suggests that she employed any “strength, pow er, or violence” against the officers

. See Spangler , 607 N.E.2d at 7 24. There is no specific testimony to even suggest that Officer Willey had to use force to execute the arrest . There was no movement or threatening gesture made in the direction of Offi cer Willey. Indeed , Officer Willey was specifically asked whether or not Brooks used force to get away , and h e did not answer in the affirmative

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[12] The State argues that Brooks “used physical force against the officer to prevent the officer from handcuffing her . . . .” (State’s Br. 7). As detailed above, the facts supporting this argument are not found within the record. The evidence “demonstrates obnoxious disrespect for authority, but not the use of any force” by Brooks. See Graham , 903 N.E.2d at 964. Accordingly , we hold that the State failed to present sufficient evidence to prove beyond a reasonable doubt that Brooks forcibly resisted the of ficer. Therefore, we reverse Brooks’ conviction for Class A misdemeanor resisting law enforcement.

[13] Reversed

.
Najam, J., and Crone, J., concur.