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 defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:

GLEN E. KOCH II GREGORY F. ZOELLER

Boren, Oliver & Coffey, LLP Attorney General of Indiana

Martinsville, Indiana

ERIC P. BABBS

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

CLARENCE E. SMITH, )

)

Appellant-Defendant, )

)

vs. ) No. 47A04-1206-CR-315

)

STATE OF INDIANA, )

)

Appellee-Plaintiff. )

APPEAL FROM THE LAWRENCE SUPERIOR COURT

The Honorable Michael A. Robbins, Judge

Cause No. 47D01-1002-CM-219

February 15, 2013

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge
2

Case Summary

Clarence E. Smith appeals his conviction for class A misdemeanor resisting law 

enforcement. On appeal, Smith asserts that the prosecutor committed misconduct 

constituting fundamental error. Smith also asserts that the trial court abused its discretion 

when it refused one of his proffered jury instructions. Concluding that the prosecutor’s 

actions did not rise to the level of fundamental error and further finding no abuse of 

discretion, we affirm.

Facts and Procedural History

On February 24, 2010, sixty-four-year-old Smith went to the Bedford Police Station to 

lodge a complaint against his ex-son-in-law, Bedford Police Sergeant Greg Hagan. Earlier 

that day, Smith had passed Sergeant Hagan while driving on State Road 37. Sergeant Hagan 

then followed Smith to a gasoline station and parked his police vehicle behind Smith’s 

vehicle at the gas pump. Although there was no verbal or physical contact between Smith 

and Sergeant Hagan, Smith felt harassed. Smith telephoned the Bedford chief of police, 

Dennis Parsley, and Chief Parsley told Smith that he was free to come to the police station to 

make a complaint. Smith had lodged complaints against Sergeant Hagan on two previous 

occasions.

When Smith arrived at the station, he met with the assistant chief of police, Colonel 

Joseph DeWees. Colonel DeWees escorted Smith to his office to take the complaint. After 

Smith explained the basis for his complaint, Colonel DeWees informed Smith that he did not 

think the complaint had any merit, but told Smith that he could fill out a complaint form 
3

anyway. Smith responded by saying that he was tired of the police department “covering up 

a f**king corrupt police officer.” Tr. at 396. Smith then loudly said, “This is bullsh*t.” Id. 

at 337, 350, 396. Colonel DeWees responded, “You’re not going to talk to me that way in 

my office, step outside.” Id. at 337, 397. 

As Smith and Colonel DeWees returned to the door that opened into the lobby, 

Colonel DeWees told Smith to step into the lobby. Smith told Colonel DeWees that he was 

not going to leave until he spoke with Chief Parsley. Colonel DeWees again told Smith to 

leave and Smith refused, stating that he wanted to go upstairs and speak to Chief Parsley. 

While Colonel DeWees was holding onto the lobby door, Smith used both of his hands to 

shove Colonel DeWees in the shoulder and chest. Colonel DeWees fell backwards onto the 

stairs. After Colonel DeWees pulled himself up, he again ordered Smith to leave. Smith put 

his hand on Colonel DeWees’s left shoulder and tried to use his body to push past Colonel 

DeWees. This caused Colonel DeWees to fall backward onto the stairs a second time. 

Colonel DeWees then got back up, grabbed Smith’s left arm, and stated, “that’s it, Mr. Smith, 

you’re under arrest.” Id. at 345, 411.

At this point, Smith declared, “I’m leaving now.” Id. at 412. Colonel DeWees 

informed him, “[it’s] too late.” Id. As Colonel DeWees held onto Smith’s left arm, Smith 

spun around and grabbed the door handle with his right arm. Smith began tensing his left 

arm and moving his shoulder to break Colonel DeWees’s grip. Captain James Lindsey was 

in the hallway and came to assist Colonel DeWees. Captain Lindsey told Smith, “you’re 

under arrest, stop resisting.” Id. at 347. Captain Lindsey tried to pull Smith’s hand off the 
4

door handle, to no avail. Finally, Captain Lindsey struck Smith’s forearm with his own 

forearm and managed to break Smith’s grip on the door handle. Both Captain Lindsey and 

Colonel DeWees tried unsuccessfully to get Smith’s arm behind his back to handcuff him. 

Major Brian Turpen ran into the hallway, grabbed Smith by the legs, and took him down to 

the floor. Captain Lindsey was then able to handcuff Smith.

On February 25, 2010, the State charged Smith with class A misdemeanor battery on a 

law enforcement officer and class A misdemeanor resisting law enforcement. A jury trial 

was held on March 8, 2012. The jury found Smith guilty of class A misdemeanor resisting 

law enforcement and not guilty of battery. This appeal followed.

Discussion and Decision

I. Prosecutorial Misconduct

Smith contends that he is entitled to reversal of his conviction based upon 

prosecutorial misconduct. To convict Smith of class A misdemeanor resisting law 

enforcement, the State was required to prove that Smith knowingly or intentionally forcibly 

resisted a law enforcement officer while the officer was lawfully engaged in the execution of 

the officer’s duties. See Ind. Code § 35-44.1-3-1. Smith contends that the prosecutor

committed misconduct by knowingly misstating the law during voir dire and opening and 

closing arguments and by making remarks that “indoctrinated” the jury with the proposition 

that the forcible resistance necessary to support a conviction for resisting law enforcement 

occurs if officers have to do “anything out of the ordinary” to effectuate an arrest. 

Appellant’s Br. at 14-15. 
5

In reviewing a properly preserved claim of prosecutorial misconduct, we determine 

whether the prosecutor engaged in misconduct, and if so, whether the misconduct, under all 

of the circumstances, placed the defendant in a position of grave peril to which he would not 

have been otherwise subjected. Castillo v. State, 974 N.E.2d 458, 468 (Ind. 2012). To 

preserve a prosecutorial misconduct claim for appeal, the defendant must ask the trial court, 

at the time the misconduct occurs, to admonish the jury or move for a mistrial if 

admonishment is inadequate. Id. Smith concedes that although he objected to some of the 

prosecutor’s statements in question, he did not request specific admonishment of the jury or 

move for a mistrial, and therefore he failed to properly preserve his claim. In cases where a 

prosecutorial misconduct claim has not been properly preserved, the defendant must establish 

not only the grounds for the misconduct but also the additional grounds for fundamental 

error. Coleman v. State, 946 N.E.2d 1160, 1166 (Ind. 2011). The fundamental error 

exception is extremely narrow and applies only when the error “make[s] ‘a fair trial 

impossible or constitute[s] clearly blatant violations of basic and elementary principles of due 

process ... present[ing] an undeniable and substantial potential for harm.’” Id. (quoting

Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). 

A. Voir Dire

Smith first claims that the prosecutor knowingly misstated the law while questioning 

prospective jurors during voir dire. “The purpose of voir dire is to determine whether a 

prospective juror can render a fair and impartial verdict in accordance with the law and the 

evidence.” Joyner v. State, 736 N.E.2d 232, 237 (Ind. 2000). Proper examination may 
6

include questions designed to disclose the jurors’ attitudes about the type of offense charged. 

Perryman v. State, 830 N.E.2d 1005, 1008 (Ind. Ct. App. 2005) trans. denied (2007). The 

parties may also attempt to uncover the jurors’ preconceived ideas about a defense the 

defendant intends to use. Id. To reveal the jurors’ attitudes and ideas, the parties may pose 

hypothetical questions, provided they do not suggest prejudicial evidence not adduced at trial. 

Id. However, questions that examine jurors as to how they would act or decide in certain 

contingencies or when presented with certain evidence are improper. Id.

Here, the prosecutor asked prospective jurors various hypothetical questions and made 

comments characterizing what types of behavior would constitute forcible resistance. For 

example, at one point the prosecutor explained, “It’s something extra ordinary. It’s not 

Superman. It’s not getting down into a fight. Anything the officer has to do out of the 

ordinary would be resisting forcibly okay. Juror eight, are you okay with that?” Tr. at 111. 

Similarly, the prosecutor asked, “Okay, now juror twenty-one, you’re under arrest, okay. 

And you push off, so you push away from me. Do I have forcible resist?” Tr. at 153. These 

comments were made and these questions were asked in general terms and were not put into 

any context specific with this case. 

Contrary to Smith’s contention, the prosecutor’s characterization of what type of

behavior would constitute forcible resistance is consistent with current Indiana law. In 

criticizing the prosecutor’s characterization, Smith relies solely upon the language used by 

our supreme court in Spangler v. State, 607 N.E.2d 720 (Ind. 1993). The Spangler court held 

that a person “forcibly resists” when “strong, powerful, violent means are used to evade a law 
7

enforcement official’s rightful exercise of his or her duties.” Id. at 723. However, more 

recently, our supreme court approved the language used in Spangler to define “forcibly 

resist” but went on to modify that language by explaining that “the force involved need not 

rise to the level of mayhem” and that a “modest level of resistance” such as “stiffening one’s 

arm when an officer grabs hold to position them for cuffing” would suffice. Graham v. 

State, 903 N.E.2d 963, 965-66 (Ind. 2009). The court explained that the “forcible” element is

met when evidence demonstrates that “the police ha[ve] to get physical” to secure the 

defendant’s compliance. Id. at 966. Accordingly, we disagree with Smith that the 

prosecutor’s characterizations and related questions constituted a misstatement of current 

Indiana law.

We do, however, agree with Smith that the prosecutor’s phrasing in some isolated 

instances did appear to be directed at ascertaining how jurors would decide when presented 

with various evidentiary scenarios. This type of questioning was not pervasive and most of 

the questions were proper and relevant to gauge the jurors’ preconceived ideas about what 

types of behavior would constitute forcible resistance. To the extent that the prosecutor’s 

comments and questions were improperly argumentative or to the extent that the prosecutor 

may have been using voir dire as an opportunity to educate jurors as to the law, we conclude 

that an admonishment by the trial court cured any possible prejudice or potential for unfair 

harm. Following one of Smith’s objections, the trial court sua sponte admonished the jury as 

follows:

Ladies and gentlemen, the law will be given to you by this Court in its 

preliminary and final instructions. What you’re being asked now may or may 
8

not be the, the law in this case. It is hypotheticals that are being presented to 

you for discussion, that’s all. You may continue.

Tr. at 110. Under the totality of the circumstances presented, Smith has failed to demonstrate 

that the prosecutor’s comments and questions regarding forcible resistance during voir dire 

made it impossible for him to receive a fair trial. Thus, we conclude that the prosecutor’s 

comments and questions did not amount to fundamental error.

B. Opening and Closing Arguments

Similar to his assertions regarding voir dire, Smith claims that the prosecutor 

committed misconduct during opening and closing arguments by again characterizing 

forcible resistance as anything “out of the ordinary” and also repeatedly stating to the jury 

during closing argument that Indiana law supports this characterization. Tr. at 648. We 

consider statements made by the prosecutor in the context of the argument as a whole. Seide 

v. State, 784 N.E.2d 974, 977 (Ind. Ct. App. 2003). “It is proper for a prosecutor to argue 

both law and fact during final argument and propound conclusions based on his analysis of 

the evidence.” Id.

As we explained above, the prosecutor’s characterization of forcible resistance as a 

very modest type of resistance, although perhaps incomplete and somewhat oversimplified, is 

indeed consistent with current Indiana law. Even if we were to conclude that any of the 

prosecutor’s comments were improper, we must emphasize the extremely narrow 

applicability of the fundamental error doctrine. Benson v. State, 762 N.E.2d 748, 755 (Ind. 

2002). The prosecutor’s improper actions must present an undeniable and substantial 

potential for unfair harm. See id. When there is overwhelming independent evidence of a 
9

defendant’s guilt, improper statements made by a prosecutor may be harmless. See Hand v. 

State, 863 N.E.2d 386, 394-95 (Ind. Ct. App. 2007). The record reveals that, after being told

that he was under arrest, Smith spun his body around, grabbed the door handle, refused to let 

go of the handle, stiffened his arm, and moved his shoulder back and forth, all in an attempt 

to break Colonel DeWees’s grasp and avoid being handcuffed. Indeed, officers had no 

choice but to grab Smith by the legs and take him to the ground to gain compliance. There is 

no question that this resistance was forcible. In light of this overwhelming independent 

evidence of Smith’s guilt, we conclude that error, if any, in the prosecutor’s comments during 

opening and closing arguments was harmless rather than fundamental.

II. Jury Instruction

Smith next contends that the trial court abused its discretion in rejecting his proposed 

final instruction 7 specifically defining forcible resistance. The purpose of jury instruction is 

to inform the jury of the law applicable to the facts without misleading the jury and to enable 

it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Fowler v. 

State, 900 N.E.2d 770, 773 (Ind. Ct. App. 2009). When evaluating a trial court’s rejection of 

a tendered instruction, we look to: (1) whether the tendered instruction correctly states the 

law, (2) whether there is evidence in the record to support giving the instruction, and (3) 

whether the substance of the proffered instruction is covered by other instructions. Short v. 

State, 962 N.E.2d 146, 150 (Ind. Ct. App. 2012). As a general rule, instruction of the jury 

lies with the sound discretion of the trial court and is reviewed only for an abuse of that 

discretion. Cravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied (2006).
10

Smith’s proposed final instruction 7 stated,

“One ‘forcibly resists’ when ‘strong, powerful, violent means are used to 

evade a law enforcement official’s rightful exercise of his or her duties.[’]” 

Aguirre v. State, 953 N.E.2d 593, 596 (Ind. Ct. App. 2011) (quoting Spangler 

v. State, 607 N.E.2d 720, 723 (Ind. 1993)). “Forcibly resists” does not include 

all acts of resistance, obstruction, or interference. Stansberry v. State, 954 

N.E.2d 507, 510-11 (Ind. Ct. App. 2011) (citing Spangler, 607 N.E.2d at 723).

“Forcibly resists” excludes some actions that are not passive. Aguirre, 953 

N.E.2d at 596 (quoting Spangler, 607 N.E.2d at 724).

Appellant’s App. at 311.

Here, although Smith’s proposed instruction correctly recited some of the language of 

Spangler and its progeny, the instruction was an incomplete statement of the current state of 

the law and thus was properly refused by the trial court. It is well settled that use of certain 

language in appellate opinions does not necessarily make that language proper for 

instructions to a jury. Ludy v. State, 784 N.E.2d 459, 462 (Ind. 2003). Indeed, as we stated 

earlier in our discussion, our supreme court has since softened the Spangler definition of 

“forcibly resist.” See Graham, 903 N.E.2d at 965-66. Due to the court’s more recent 

modification and explanation of the Spangler language regarding what constitutes forcible 

resistance, the instruction tendered by Smith was an incomplete statement of current law. 

Thus, we cannot say that the trial court abused its discretion in refusing to give the tendered 

instruction.

On appeal, Smith maintains that the prosecutor’s remarks during voir dire and opening 

and closing arguments regarding forcible resistance necessitated the giving of his instruction 

defining that term, especially in light of the fact that the substance of the instruction was not 
11

covered by any other instruction.

1

 However, Smith made no such argument to the trial court. 

To the contrary, our review of the record indicates that following the trial court’s rejection of 

Smith’s proposed final instruction 7, Smith made no objection or argument to the trial court 

regarding the prosecutor’s remarks or the necessity for his instruction defining forcible 

resistance. Tr. at 622. Accordingly, we agree with the State that Smith did not afford the 

trial court the opportunity to consider this argument and/or to correct any error without the 

need for an appeal. Indiana Trial Rule 51(C) requires that a party distinctly state the matter 

to which he objects and the grounds of his objection as a prerequisite for claiming error on 

appeal regarding the trial court’s instruction of the jury. Scalissi v. State, 759 N.E.2d 618, 

626 (Ind. 2001). The purpose of this rule is to protect the trial court from inadvertent error. 

Mitchem v. State, 685 N.E.2d 671, 675 (Ind. 1997). Absent a specific objection, Smith has 

waived this argument on appeal. Therefore, we affirm.

Affirmed.

KIRSCH, J., and MATHIAS, J., concur.

 

1 We note that the trial court also refused the State’s proposed final jury instruction 7 defining 

“forcibly” in the context of resisting law enforcement. Appellant’s App. at 159.