MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                      FILED
this Memorandum Decision shall not be
                                                                       Oct 29 2019, 9:15 am
regarded as precedent or cited before any
court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Christopher Taylor-Price                                 Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General
Appellate Division
Indianapolis, Indiana                                    Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Sierra Hill,                                             October 29, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1083
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy M. Jones,
Appellee-Plaintiff                                       Judge
                                                         The Honorable David Hooper,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1808-CM-28659



Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-1083 | October 29, 2019                Page 1 of 9
                                             Case Summary
[1]   Sierra Hill appeals her conviction, following a bench trial, for class A

      misdemeanor resisting law enforcement. She asserts that the trial court abused

      its discretion in admitting certain evidence. She also asserts that the State

      presented insufficient evidence to support her conviction. Finding no abuse of

      discretion and sufficient evidence, we affirm.


                                 Facts and Procedural History
[2]   On August 13, 2018, Indianapolis Metropolitan Police Department Officer

      Nickolas Smith was dispatched to an automotive repair shop based upon a

      report that a person was refusing to leave. When Officer Smith arrived, he

      spoke to a manager and another employee before encountering Hill. She was

      sitting in a chair in the back of the shop where it was dark. The shop was

      closed at the time. Officer Smith explained to Hill that he needed to speak to

      her outside because the manager “wanted her to leave” and “did not want her

      there.” Tr. Vol. 2 at 7-8. Hill informed the officer that she “wasn’t going

      anywhere” and that he would “have to take her to jail.” Id. 8-9. Officer Smith

      told Hill a second time that he needed to speak with her outside. After Hill

      again refused to move, Officer Smith approached her and “grabbed her by both

      wrists, stood her up.” Id. at 9. Hill began “flailing her arms and turning

      around.” Id. Officer Smith “did a leg sweep[,]” and Hill “went to the ground.”

      Id. While on the ground, Hill tried to tuck her arms underneath her stomach.

      Officer Smith “told her to stop resisting and give me her hands.” Id. He was

      able to get a handcuff on Hill’s left hand, but she was “tucking in her right

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1083 | October 29, 2019   Page 2 of 9
      hand.” Id. After Officer Smith was finally able to cuff both hands, Hill “was

      pretty much like dead weight” and told the officer that he “was going to have to

      drag her out.” Id. Officer Smith stood Hill up, and she dragged her feet as he

      brought her outside.


[3]   The State charged Hill with class A misdemeanor criminal trespass and class A

      misdemeanor resisting law enforcement. A bench trial was held on April 15,

      2019. After the State presented its evidence, the trial court sua sponte dismissed

      the criminal trespass charge pursuant to Indiana Trial Rule 41(B). After Hill

      presented her evidence, the trial court found her guilty of resisting law

      enforcement and sentenced her to one year of informal probation and sixteen

      hours of community service. This appeal ensued.


                                     Discussion and Decision

           Section 1 – The trial court did not abuse its discretion in
                         admitting certain evidence.
[4]   Hill contends that the trial court abused its discretion in admitting certain

      evidence. A trial court has broad discretion to admit or exclude evidence,

      including purported hearsay. Blount v. State, 22 N.E.3d 559, 564 (Ind. 2014).

      We will disturb the ruling only if it amounts to an abuse of discretion, meaning

      the court’s decision is clearly against the logic and effect of the facts and

      circumstances or is a misinterpretation of the law. Id.


[5]   Hill claims that the trial court abused its discretion when it permitted Officer

      Smith to testify, over her objection, regarding a hearsay statement made to him

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1083 | October 29, 2019   Page 3 of 9
      by the shop manager. Specifically, Officer Smith testified that after he

      identified himself to Hill as a police officer, he explained to her that the

      manager “wanted her to leave” and that he needed to speak to her outside

      because the manager “did not want her there.” Tr. Vol. 2 at 7-8. In overruling

      Hill’s hearsay objection, the trial court explained that the statement would be

      admitted as “course-of-investigation” testimony “for the limited purpose to

      show why the officer [was] engaged in his duties.” Id.


[6]   Hearsay is an out-of-court statement offered for “the truth of the matter

      asserted,” Ind. Evidence Rule 801(c)(2), and it is generally not admissible as

      evidence. Ind. Evidence Rule 802. “Whether a statement is hearsay ... will most

      often hinge on the purpose for which it is offered.” Blount, 22 N.E.3d at 565

      (quoting United States v. Linwood, 142 F.3d 418, 425 (7th Cir. 1998)). In Blount,

      our supreme court explained the purposes and dangers of “course-of-

      investigation” testimony:


              Although course-of-investigation testimony may help prosecutors
              give the jury some context, it is often of little consequence to the
              ultimate determination of guilt or innocence. The core issue at
              trial is, of course, what the defendant did (or did not do), not why
              the investigator did (or did not do) something. Thus, course-of-
              investigation testimony is excluded from hearsay only for a
              limited purpose: to bridge gaps in the trial testimony that would
              otherwise substantially confuse or mislead the jury.... Indeed,
              such testimony is of little value absent a direct challenge to the
              legitimacy of the investigation.... The ultimate inquiry is: Was
              the out-of-court statement used primarily to show the truth of its
              content, constituting inadmissible hearsay, or merely to explain
              subsequent police action, excluded from hearsay?

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1083 | October 29, 2019   Page 4 of 9
      Id. at 565-66 (citations and quotation marks omitted).


[7]   To determine whether a statement received by a police officer engaged in an

      investigation constitutes inadmissible hearsay, we conduct a three-part test. Id.

      at 566. First, we determine 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

      next determine the evidentiary purpose of the proffered statement. Id. at 567.

      Specifically, we consider whether the statement is offered for a purpose other

      than to prove the fact which is asserted. Id. Again, if that answer is yes, we

      determine if the fact to be proven by the statement is relevant to some issue in

      the case, and if there is any danger of unfair prejudice that outweighs the

      probative value. Id.


[8]   Here, Officer Smith’s testimony regarding the manager’s out-of-court statement

      that he wanted Hill to leave the property was clearly asserting a fact susceptible

      of being true or false. But, the evidentiary purpose of the out-of-court statement

      was not to prove that fact. That is to say, the evidentiary purpose was not to

      prove that the manager wanted Hill to leave or that Hill was committing

      criminal trespass. Rather, the evidentiary purpose and relevance of the

      statement was to explain “why” Officer Smith, in his official capacity as a

      police officer, had an encounter with Hill. Tr. Vol. 2 at 8. Indeed, the trial

      court, as the trier of fact in this bench trial, gave assurances that the statement

      was being admitted for that limited purpose. Id. Under the circumstances, we

      are confident that the statement was considered only for its non-hearsay

      purpose rather than for its truth.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1083 | October 29, 2019   Page 5 of 9
[9]    We note that our courts are most concerned with the danger of unfair prejudice

       when the out-of-court assertion directly implicates the defendant in the instant

       crime or a crime similar to the one with which he or she is charged. See Blount,

       22 N.E.3d at 566. Although Hill was initially charged with criminal trespass,

       and the manager’s statement would have implicated Hill in that crime, the State

       abandoned any attempt to prove that offense, and the trial court sua sponte

       dismissed that charge at the conclusion of the State’s evidence. Accordingly,

       we perceive no danger of unfair prejudice here. We conclude that the trial court

       did not abuse its discretion in admitting the challenged evidence.


        Section 2 – The State presented sufficient evidence to support
                              Hill’s conviction.
[10]   We next address Hill’s claim that the State presented insufficient evidence to

       support her conviction. When reviewing a challenge to the sufficiency of

       evidence, we neither reweigh evidence nor judge witness credibility. Moore v.

       State, 27 N.E.3d 749, 754 (Ind. 2015). Rather, we consider only the evidence

       and reasonable inferences most favorable to the judgment and will affirm the

       conviction unless no reasonable factfinder could find the elements of the crime

       proven beyond a reasonable doubt. Id. Reversal is appropriate only when

       reasonable persons would be unable to form inferences as to each material

       element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.

       2006), trans. denied. The evidence need not “overcome every reasonable

       hypothesis of innocence.” Dalton v. State, 56 N.E.3d 644, 647 (Ind. Ct. App.

       2016) (quoting Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007)), trans. denied.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1083 | October 29, 2019   Page 6 of 9
[11]   To convict Hill of resisting law enforcement as a class A misdemeanor, the

       State was required to prove beyond a reasonable doubt that Hill knowingly or

       intentionally forcibly resisted, obstructed, or interfered with a law enforcement

       officer or a person assisting the officer while the officer was lawfully engaged in

       the execution of the officer’s duties. Ind. Code § 35-44.1-3-1(a)(1). Hill’s sole

       assertion is that the State presented insufficient evidence that Officer Smith was

       lawfully engaged in the execution of his duties during their encounter. 1


[12]   Officer Smith testified that he identified himself as a police officer to Hill,

       informed her why he had been summoned, and asked her to step outside of the

       shop to speak with him. Smith refused and told Officer Smith that he would

       just have to take her to jail. When Officer Smith attempted to direct Smith

       outside, a struggle ensued. Hill contends that absent the manager’s “hearsay”

       statement discussed above, “no substantive evidence exists that Officer Smith

       was lawfully engaged in his duties” during the encounter. Reply Br. at 10.

       However, as we have concluded, the manager’s statement was not hearsay, as it

       was not admitted to prove the truth of the matter asserted therein. Rather, it

       was properly admitted as substantive evidence as to why Officer Smith, in his

       official capacity as a police officer, had an encounter with Hill. Officer Smith’s

       testimony was sufficient to prove that he was lawfully engaged in the execution

       of his duties at the time of the encounter.




       1
           Hill does not challenge the sufficiency of the State’s proof on any other element of the offense.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1083 | October 29, 2019                        Page 7 of 9
[13]   Hill maintains that since the State never proved that she was in fact committing

       a crime (criminal trespass) by refusing to leave the shop, the State could not

       prove that Officer Smith had the authority to ask her to leave or to arrest her for

       refusing to do so. We agree with the State that much of Hill’s argument in this

       regard appears to conflate “lawfully engaged in [the execution of the officer’s]

       duties” with “lawfully arresting.” State’s Br. at 12. Regardless of whether an

       arrest is lawful, a citizen cannot resist a peaceful arrest by a police officer. 2

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

       see also Dora v. State, 783 N.E.2d 322, 327 (Ind. Ct. App. 2003) (holding that

       determining the lawfulness of an arrest should be decided by courts and not by

       emotional citizens), trans. denied. 3 Hill is prohibited from resisting an arrest

       simply because she thinks it is unlawful. The trial court reasonably found that

       Hill knowingly or intentionally forcibly resisted Officer Smith while he was

       lawfully engaged in the execution of his duties. The State presented sufficient

       evidence to support Hill’s conviction.




       2
        In her reply brief, Hill claims that Officer Smith used excessive force when trying to direct her out of the
       shop, and therefore he was not “lawfully” engaged in his duties. Reply Br. at 11. This argument is waived
       because it was raised for the first time in a reply brief. See Jones v. State, 22 N.E.3d 877, 881 n.4 (Ind. Ct.
       App. 2014) (noting that a party may not raise an argument for the first time in a reply brief).
       3
         The rule that a citizen cannot resist even an unlawful arrest has not been interpreted as a blanket prohibition
       that criminalizes any conduct evincing resistance where the “means used” to affect an arrest are unlawful.
       Alspach v. State, 755 N.E.2d 209, 211 (Ind. Ct. App. 2001), trans denied. For example, “we have recognized an
       exception where police unlawfully enter a person’s residence, determining that a greater privilege exists to
       resist an unlawful entry into private premises than to resist an unlawful arrest in a public place.” Id. (citations
       omitted).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1083 | October 29, 2019                       Page 8 of 9
[14]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1083 | October 29, 2019   Page 9 of 9
