Court of Appeals of Indiana | Memorandum Decision 87A05

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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 defense of res judicata, collateral estoppel, or the law of the case.

A TTORNEY FOR A PPELLANT Erin L. Berger Evansville, Indiana A TTORNEY S FOR A PPELLEE Curtis T. Hill , Jr. Attorney General of Indiana Monika Prekopa Talbot Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Roman Allen , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff M arch 7, 2017 Court of Appeals Ca se No. 87A05

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- 1277 Appeal from the Warrick Circuit Court The Honorable Greg A. Granger, Judge Trial Court Cause No. 87C01

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- CM

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Baker , Judge
.Court of Appeals of Indiana | Memorandum Decision 87A05

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[1] Roman Allen was convicted of Resisting Law Enforcement, 1 a Class A Misdemeanor. He argues that the State did not offer sufficient evidence to prove that he resisted law enforcement, or, in the alternative, he was privileged to resist the arresting officers because they used excessive force against him. Findin g sufficient evidence and no privilege , we affirm.


## Facts 2

[2] On January 2, 2015, Abbigail Roy was working as a bartender at the Southside Bar in Boonville. Allen was at the bar that night and started arguing with another customer, and Roy asked them to stop. When they continued to argue, Roy asked them to leave the bar, and Allen left. He then returned, saying that he needed to use the restroom. When Allen exited the restroom, a woman approached him, and he told the woman “to get out of his face.” Tr. p. 6. At some point during the night, someone said, “he can pull his [gun] faster than you can pull yours.” 3 Id. at 8. Another employee who was at the bar but not working called the police.

1 Ind. Code § 35

- 44.1

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- 1(a)(1).

2 Oral argument took place on Thursday, February 16, 2017, at Ivy Tech Commu nity College in Indianapolis. We thank the school’s administration, faculty, and students for their hospitality and thoughtful post

- argument questions. We also thank counsel for their informative arguments.
3 During direct examination, Roy testified, “I was told that he can pull his faster than you can pull yours. That’s all I was told, and then somebody said

— .” Tr. p. 8. She testified that she did not know who said it. During cross

- examination, counsel ask ed Roy, “But, is it true, ma’am, that you heard, he can pull his faster than you can pull yours? That’s something that you heard?” Id. at 15. Roy testified, “I did not hear that. Somebody came up and told me that, and that’s how the police got called w as because somebody overheard that and said it to me, and said that she was going to call the police. I never heard that for myself.” Id.Court of Appeals of Indiana | Memorandum Decision 87A05

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[3] Chandler Police Officer Matthew Tevault was dispatched to the So uthside Bar. Once inside, he unholstered his weapon and ordered Allen and another man to show him their hands. Allen did not comply, instead keeping his hands in his pockets as he began approaching Officer Tevault with a dazed look. When Allen was withi n three feet of Officer Tevault, he put his hands up and continued to advance. Officer Tevault then kicked Allen’s sternum “to try to gain distance from him,” holstered his weapon, and “began to go hands on with him.” Id. at 32. Officer Tevault grabbed Allen’s left arm near his wrist and tried to escort him to the ground. The floor was slick, making it hard for Officer Tevault to gain control of Allen. He gave knee strikes to Allen’s mid

thigh to try to get him to the ground. At some point, Officer Da lton Spaulding arrived and tried to subdue Allen. Officer Spaulding grabbed Allen, who pulled away, causing Officer Spaulding to slam into a vending machine.

[4] The officers told Allen that he would be tased if he did not comply. When Allen did not do as o rdered, Officer Tevault tased him for a five

- second cycle. Officer Spaulding tased him at the same time. While tasing Allen, Officer Tevault told him to put his hands behind his back as soon as the tasing was

over. Instead of complying , Allen rolled ont o his side, looked at Officer Tevault, and tucked his hands underneath himself. Officer Spaulding told Allen that if he did not put his hands behind his back, he would be tased again. Officer Tevault then tased Allen for a second five

- second cycle, after which Allen put his hands behind his back, and Officer Spaulding handcuffed him.Court of Appeals of Indiana | Memorandum Decision 87A05

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[5] On January 2, 2015, the State charged Allen with resisting law enforcement, a Class A misdemeanor. A bench trial took place on April 22, 2016, and the trial court took the matter under advisement. On April 25, 2016, the trial court issued an order finding Allen guilty, and entered a conviction against him. On May 20, 2016, the trial court sentenced Allen to twelve months at the Warrick County Security Center, with all of the sentence suspended to non

- reporting probation except for five weekends.



## Discussion and Decision

[6] Allen argues that there was insufficient evidence to convict him of resisting law enforcement, and that even if he did resist, he was privileged to do so because the officers used excessive force against him during his arrest.



## I. Sufficiency of the Evidence

[7] Allen argues that the State did not present sufficient evidence to support his conviction. When considering a challenge to the sufficiency of the evi dence, we do not reweigh the evidence or judge the credibility of the witnesses. McHenry
v. State , 820 N.E.2d 124, 126 (Ind. 2005). We will affirm if the probative evidence and the reasonable inferences drawn therefrom could have allowed a reasonable tri er of fact to find the defendant guilty beyond a reasonable doubt. Id. To convict Allen of resisting law enforcement, the State needed to prove beyond a reasonable doubt that Allen knowingly or intentionally forcibly resisted, obstructed, or interfered w ith a law enforcement officer or a personCourt of Appeals of Indiana | Memorandum Decision 87A05

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assisting the officer while the officer wa s lawfully engaged in the execution of his duties. I.C. § 35

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- 1(a)(1).

[8] Our Supreme Court ha s considered the elements of this crime, noting that the word “forcibly ” modifies “resists, obstructs, or interferes” and that force is an element of the offense. Graham v. State , 903 N.E.2d 963, 965 (Ind. 2009) (discussing Spangler v. State , 607 N.E.2d 720 (Ind. 1993)). An individual “‘forcibly resists’” when “‘strong, pow erful, violent means are used to evade a law enforcement official’s rightful exercise of his or her duties.’” Id. (quoting Spangler , 607 N.E.2d at 723). The force involved does not need to rise to the level of mayhem. Id. “It is error as a matter of la w to conclude that ‘forcibly resists’ includes all actions that are not passive.” Spangler , 607 N.E.2d at 724.

[9] Here, Allen forcibly resisted the officers as they tried to place him on the ground and handcuff him. The evidence shows that when Officer Tevault told Allen to show his hands, Allen did not comply and began approaching Officer Tevault with his hands in his pocket, which mad e Officer Tevault consider Allen a threat. Even when Allen did put his hands up, he continued to advance on the officer. Officer Tevault kicked Allen to get some distance and gave knee strikes to Allen’s mid

- thigh to get him to the ground , but Allen stil l did not comply.

[10] Had these actions been the only ones that Allen took during the incident, this case might be different. However, as Officer Tevault tried to put Allen on the ground, Allen pulled away from him and tried to stay on his feet. When Offic erCourt of Appeals of Indiana | Memorandum Decision 87A05

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Spaulding grabbed Allen, Allen’s movements made Officer Spaulding slam into a vending machine. We find that this movement constitutes a strong and powerful act used to evade the officers. Accordingly, sufficient evidence supports Allen’s resisting law enforcement conviction.



## II. Privilege to Resist

[11] Allen next argues that if he did resist the officers, he was privileged to do so because they used excessive force against him during his arrest . The general rule in Indiana provides that a private citizen may not use force to resist a peaceful arrest by an individual who he knows, or has reason to know, is a police officer performing his duties, regardless of whether the arrest in question is lawful. Shoultz v. State , 735 N.E.2d 818, 823 (Ind. Ct. App. 20 00). But that general rule was not intended to “criminalize any conduct evincing resistance where the means used to effect an arrest are unlawful.” Id. (emphasis original).

[12] Claims that law enforcement officers have used excessive force in the course of

a n arrest of a free citizen are analyzed under the Fourth Amendment to the United States Constitution and its “reasonableness” standard. Id. at 823

- 24 (citing Graham v. Connor , 490 U.S. 386, 395 (1989)). The reasonableness standard requires “careful atten tion to the facts and circumstances of each particular case, including the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to e vade arrest by flight.” Id. at 824. Whether a particular use of force was reasonable must be judged from theCourt of Appeals of Indiana | Memorandum Decision 87A05

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perspective of a reasonable officer on the scene. Id. In an excessive force case, the reasonableness inquiry is objective: “the question is wh ether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them, without regard to their underlying intent or motivation.” Id.

[13] In this case , we find that the officers’ behavior was objectively reasonable, and therefore constitutional, because Allen’s behavior was threatening to the officers . The officers were called specifically because Allen had a verbal altercation with another patron and someone suspected that Allen had a gun. Allen did not comply with Officer Tevault’s commands to show his hands, and Allen walked toward him with a dazed look

— this behavior was threatening enough to Officer Tevault that Officer Tevault tried to distance himself from Allen by kicking him in the sternum. Following this kic k, Officer Tevault and Officer Spaulding continued to struggle to gain control of Allen. At one point, Allen caused Officer Spaulding to slam into a vending machine. Even after being tased, Allen did not put his hands behind his back as he was directed t o do. In sum, Allen was actively resisting arrest. Considering this evidence, we cannot say that the force the officers used to subdue Allen was excessive.

[14] The judgment of the trial court is affirmed.

R obb, J., and Altice, J., concur

.