Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be                         FILED
regarded as precedent or cited before                       Dec 31 2012, 11:43 am
any court except for the purpose of
establishing the defense of res judicata,                          CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
collateral estoppel, or the law of the case.                            tax court




ATTORNEY FOR APPELLANT:                                 ATTORNEYS FOR APPELLEE:

DEBRA S. ANDRY                                          GREGORY F. ZOELLER
Paoli, Indiana                                          Attorney General of Indiana

                                                        KATHERINE MODESITT COOPER
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

GEORGE R. CLARK,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 59A05-1205-CR-253
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE ORANGE SUPERIOR COURT
                         The Honorable K. Lynn Lopp, Special Judge
                              Cause No. 59D01-0912-FD-828


                                        December 31, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                               Case Summary

           George R. Clark (“Clark”) appeals his conviction for Resisting Law Enforcement, as a

Class A misdemeanor.1 We affirm.

                                                     Issues

           Clark presents two issues for review:

           I.      Whether there is sufficient evidence to sustain his conviction; and

           II.     Whether the jury was properly instructed on the charged offense as a
                   misdemeanor as well as a felony.

                                      Facts and Procedural History

           Around 1:00 a.m. on December 27, 2009, French Lick Assistant Police Chief Marshall

Noble (“Assistant Chief Noble”) contacted Clark, aged eighty-two, to provide transportation

for his son, Danny Clark (“Danny”). Danny’s girlfriend had insisted that he needed to leave

their apartment, and Danny appeared to be under the influence of alcohol such that operating

an automobile was not prudent.2

           Clark drove his son away from the apartment complex and stopped at a nearby

convenience store, Huck’s. At the same time, Assistant Chief Noble and French Lick

Patrolman Aaron Kemple (“Officer Kemple”) stopped at Huck’s to get fuel. West Baden

Springs Reserve Officer Jason Kendall (“Officer Kendall”), also present at Huck’s, heard

Danny yell an obscenity at Assistant Chief Noble. Also, Danny had “flipped off” Assistant

Chief Noble.          (Tr. 93.)     Assistant Chief Noble decided to arrest Danny for public

1
    Ind. Code § 35-44-3-3(a)(1) [now Ind. Code § 35-44.1-3-1].
2
    Danny was not given field sobriety tests or a breathalyzer.

                                                        2
intoxication.

          When Officer Kemple walked out of Huck’s, he encountered a “scuffle up” between

Danny and Assistant Chief Noble. (Tr. 36.) He decided to assist with the arrest. As they and

Officer Kendall struggled with Danny, Assistant Chief Noble was pinned against the

convenience store glass front and felt it sway; he feared that it might give way and shouted to

the other officers to move away from the window.

          Around this time, Clark exited his vehicle and began walking toward the officers, with

his hands in his pockets. Assistant Chief Noble instructed Clark to go back; Clark simply

responded, “no.” (Tr. 95.) Assistant Chief Noble decided to handcuff Clark, who then began

to back up with his hands remaining in his pockets.

          Assistant Chief Noble attempted to pull Clark’s hands behind his back but Clark was

“not allowing” this. (Tr. 97.) Assistant Chief Noble was unable to view Clark’s hands but

suspected that Clark was holding onto his belt or had clasped his hands together. He pushed

Clark forward onto his vehicle and “that stopped his hands from doing anything else.” (Tr.

97.) Nonetheless, Clark was “trying to struggle” and Assistant Chief Noble’s handcuffs were

knocked out of his grasp during the struggle. (Tr. 97.) French Lick Reserve Police Officer

Jesse Crane arrived at Huck’s and assisted with the handcuffing process. Thereafter, Officer

Kendall noticed that Assistant Chief Noble had a cut on his hand.

          The State charged Clark with Resisting Law Enforcement, as a Class D felony, and

Disorderly Conduct, a Class B misdemeanor.3 His jury trial, a joint trial with Danny,


3
    Ind. Code § 35-45-1-3.

                                                3
commenced on February 1, 2012. At its conclusion, Clark was found guilty of Resisting Law

Enforcement, as a Class A misdemeanor, and was acquitted of Disorderly Conduct. He

received a one-year sentence, suspended except for sixty days to be served on home detention

with electronic monitoring. This appeal ensued.

                                 Discussion and Decision

                               I. Sufficiency of the Evidence

       Clark concedes that he did not return to his vehicle when ordered to do so. However,

he insists that he is hard of hearing and made no threatening movements toward the officers.

Clark contends his conviction must be reversed due to insufficient evidence that his conduct

during the handcuffing amounted to “forcible” resistance.

       When reviewing the sufficiency of the evidence to support a conviction, appellate

courts must consider only the probative evidence and the reasonable inferences supporting

the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). In so doing, we do not assess

witness credibility or reweigh the evidence. Id. We will affirm the conviction unless no

reasonable fact-finder could find the elements of the crime proven beyond a reasonable

doubt. Id.

       To sustain Clark’s conviction for Resisting Law Enforcement, as a Class A

misdemeanor, the State was required to prove beyond a reasonable doubt that Clark

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

officer while the officer was lawfully engaged in the execution of the officer’s duties. Ind.




                                              4
Code § 35-44.1-3-1(a)(1).4 A person engages in conduct “intentionally” if, when he engages

in the conduct, it is his conscious objective to do so. Ind. Code § 35-41-2-2(a). A person

engages in conduct “knowingly” if, when he engages in conduct, he is aware of a high

probability that he is doing so. Ind. Code § 35-41-2-2(b).

        The word “forcibly” modifies “resists, obstructs, or interferes,” and force is an

element of the offense. Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). In the context of

resisting law enforcement, our Supreme Court has defined “forcibly” as “when strong,

powerful, violent means are used to evade a law enforcement official’s rightful exercise of

his or her duties.” Id. However, the force necessary to sustain a conviction for resisting law

enforcement need not rise to the level of mayhem; rather, a “modest level of resistance” may

suffice. Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009).

        “Indiana courts have grappled with the issue of when resistance, obstruction, or

interference rises to the [requisite] level of forcible resistance, obstruction, or interference.”

Stansberry v. State, 954 N.E.2d 507, 511 (Ind. Ct. App. 2011). Mere passive inaction, such

as refusing to present one’s arms for handcuffing or refusing to stand, without more, is not

forcible resistance, obstruction, or interference. Id. (citing A.C. v. State, 929 N.E.2d 907,

911 (Ind. Ct. App. 2010)). Even where passive resistance requires police officers to use

force, it is insufficiently forceful. Id. (citing Colvin v. State, 916 N.E.2d 306, 307-09 (Ind.

Ct. App. 2009), trans. denied, and Braster v. State, 596 N.E.2d 278, 280 (Ind. Ct. App. 1992),



4
  The offense is a Class D felony if the defendant’s conduct has resulted in bodily injury to another person.
Ind. Code § 35-44.1-3-1(b)(1)(B).

                                                     5
trans. denied).5

        Even a resistance that is not entirely passive may “still fall short of being considered

‘forcible.’” Id. For example, in Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind. Ct. App.

1998), the defendant did not act with the requisite “force” when he resisted by twisting and

turning a little bit and, even after being sprayed with mace, held onto the flag the officer was

attempting to recover. Ajabu was ultimately dragged eight to ten feet before he released the

flag. Id. In Berberena v. State, 914 N.E.2d 780, 782-83 (Ind. Ct. App. 2009), trans. denied,

the officer had been required to make “exertions or efforts against difficult or forceful

opposition to handcuff Berberena.” Although there was a struggle, there was no evidence

that Berberena had “made threatening or violent actions to contribute to the struggle.” Id. at

782. His conviction was reversed. Id. at 783.

        On the other hand, placing one’s hands on the door casing to resist leaving the house

has been considered “forceful.” Wellman v. State, 703 N.E.2d 1061, 1064 (Ind. Ct. App.

1998). Turning and pushing away with one’s shoulders during an attempted search and

stiffening one’s body to prevent entry into a transport vehicle has been held to be sufficient

force. Johnson v. State, 833 N.E.2d 516, 518-19 (Ind. Ct. App. 2005). Also, stiffening one’s

arms when grabbed to position for handcuffing has been described as a sufficiently forceful

event. Graham, 903 N.E.2d at 966. So too has displaying and refusing to drop a box cutter

when instructed to do so. Pogue v. State, 937 N.E.2d 1253, 1258 (Ind. Ct. App. 2010), trans.

5
  In Colvin, the defendant had refused to comply with officers’ commands to remove his hands from his
pockets; this was not forcible resistance even though the officers had to physically place him on the ground. In
Braster, the defendant had remained standing after being ordered to lie on the floor and the officer had swept
the defendant’s legs out from underneath him; this too was not forcible resistance.

                                                       6
denied.

       Here, Assistant Chief Noble testified that Clark had tried to struggle and was “fighting

and resisting with me.” (Tr. 160.) His testimony is somewhat lacking in specificity.

Nonetheless, Huck’s cashier Stanley Pender described the struggle as one where Clark “kept

trying to push off the car and just wrestle with the police officer.” (Tr. 172.) We find this

testimony provides sufficient evidence that Clark acted forcibly as required for a conviction

for resisting law enforcement.

                                      II. Jury Instruction

       The State initially charged that Clark had caused bodily injury to Assistant Chief

Noble, and had committed Resisting Law Enforcement, as a Class D felony. However, after

the presentation of evidence, the State requested that the jury also be instructed on Resisting

Law Enforcement, as a Class A misdemeanor, having no element of bodily injury. The trial

court granted the State’s request and Clark argues that the trial court erred in giving the jury a

lesser included offense instruction over his objection. According to Clark, “there is no

meaningful evidence from which a jury could properly find the lesser offense was

committed.” Appellant’s Br. at 8.

       In Wright v. State, 658 N.E.2d 563 (Ind. 1995), our Indiana Supreme Court set forth

the proper analysis to determine when a trial court should, upon request, instruct the jury on a

lesser included offense of the crime charged. The analysis contains three steps: (1) a

determination of whether the lesser included offense is inherently included in the crime

charged; if not, (2) a determination of whether the lesser included offense is factually


                                                7
included in the crime charged; and, if either, (3) a determination of whether a serious

evidentiary dispute existed whereby the jury could conclude the lesser offense was

committed but not the greater. Id. at 566-67. If the third step is reached and answered in the

affirmative, the requested instruction should be given. Horan v. State, 682 N.E.2d 502, 506

(Ind. 1997).

       Accordingly, where the judge determines that a lesser included offense is inherent in

the charged crime, he or she must then determine whether the evidence in the case supports

such an instruction. Fields v. State, 679 N.E.2d 1315, 1321 (Ind. 1997). An offense is an

inherently included offense if (1) the alleged lesser included offense may be established by

proof of the same material elements or less than all the material elements defining the crime

charged, or (2) the only feature distinguishing the alleged lesser included offense from the

crime charged is that a lesser culpability is required to establish the commission of the lesser

offense. Horan, 682 N.E.2d at 506.

       Resisting Law Enforcement, as a Class A misdemeanor, may be established by proof

of less than all the elements of Resisting Law Enforcement, as a Class D felony, as charged.

The distinguishing element is bodily injury. Thus, Resisting Law Enforcement is an

inherently lesser included offense of Resisting Law Enforcement causing bodily injury.

Clark and the State dispute whether there was a serious evidentiary dispute regarding the

element of bodily injury.

        “[I]t is reversible error for a trial court to give a lesser included offense instruction at

the request of the State in the absence of a serious evidentiary dispute distinguishing the


                                                 8
lesser offense from the greater.” True v. State, 954 N.E.2d 1105, 1109 (Ind. Ct. App. 2011)

(citing Watts v. State, 885 N.E.2d 1228, 1232-33 (Ind. 2008)). Where there is no serious

evidentiary dispute about the element distinguishing the two offenses, the trial court should

refuse the lesser included instruction to avoid the possibility of a compromise verdict. See

e.g., McNary v. State, 428 N.E.2d 1248, 1250-51 (Ind. 1981) (holding that where defendant

raised alibi defense to crime and evidence established that he was either guilty of the charged

offense or no offense at all, giving of lesser included offense instruction would have

erroneously allowed the jury to speculate on a factual scenario with no evidentiary basis and

opened the door to a compromise verdict).

       Where a factual finding is made on the existence or lack of a serious evidentiary

dispute, we review the trial court’s decision for an abuse of discretion. Champlain v. State,

681 N.E.2d 696, 700 (Ind. 1997). However, when the trial court makes no explicit finding

regarding a serious evidentiary dispute, we review the ruling de novo. True, 954 N.E.2d at

1108 (citing Wilkins v. State, 716 N.E.2d 955, 957 (Ind. 1999)). The trial court made no

express finding and our review is de novo.

       Here, the evidence of how Assistant Chief Noble sustained his hand injury is

conflicting. Initially, Assistant Chief Noble testified that his hand was cut “during the

incident.” (Tr. 119.) However, he acknowledged that there were multiple “incidents,” close

in time, one involving Clark and one involving Danny. (Tr. 135.) He had been cognizant of

pain when the handcuffs were knocked from his hand, and had formed the opinion that he cut

himself when trying to put the handcuffs on Clark. Nonetheless, he admitted that his


                                              9
knowledge was not “exact” and he “didn’t really know how the cut happened.” (Tr. 166.)

From this testimony, the jury could have inferred either that the struggle with Clark caused

the injury or that the struggle with Danny caused the injury. There existed a serious

evidentiary dispute as to the distinguishing element.

       The giving of the instruction on Resisting Law Enforcement, as a Class A

misdemeanor, is supported by the evidence. The trial court did not commit reversible error in

instructing the jury.

                                        Conclusion

       There is sufficient evidence to support Clark’s conviction. The jury was properly

instructed that it could convict Clark of Class A misdemeanor Resisting Law Enforcement as

a lesser-included offense of Class D felony Resisting Law Enforcement.

       Affirmed.

VAIDIK, J., and BROWN, J., concur.




                                             10
