MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                    FILED
this Memorandum Decision shall not be                                Sep 26 2016, 9:31 am
regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         Court of Appeals
the defense of res judicata, collateral                                    and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Steven A. Pearson,                                       September 26, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1512-CR-2198
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shannon Logsdon,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G08-1411-CM-51718



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2198 | September 26, 2016     Page 1 of 10
[1]   Steven A. Pearson appeals his conviction for resisting law enforcement as a

      class A misdemeanor. Pearson raises one issue which we revise and restate as

      whether the evidence is sufficient to sustain his conviction. We affirm.


                                      Facts and Procedural History

[2]   On November 16, 2014, Pearson was arrested for public intoxication and

      resisting law enforcement and was placed in a holding cell at the Arrestee

      Processing Center (“APC”) in Marion County. Sergeant Daniel Majors went

      to the cell where Pearson was lying on a bench with his head covered and asked

      him to remove a black hoodie covering his face because of the department’s

      policy to see a face at all times to make sure the person is breathing. Pearson

      became “very agitated,” and Deputy Matthew Renner and Deputy Christopher

      Ramey stepped over to assist. Transcript at 16. When asked to remove the

      hoodie, Pearson pulled it off over his head and said, “Take the shirt.” Id. at 7.

      Sergeant Majors reached out, grabbed a hold of the shirt, and Pearson “pulled it

      back towards him which pulled [Sergeant] Majors into him” and “down on top

      of him.” Id. at 7, 16.


[3]   At this point, Pearson’s hands were inside his hoodie. Deputy Ramey assisted

      Sergeant Majors in “trying to get Mr. Pearson’s hands away from him to get

      him handcuffed” and grabbed Pearson’s arm. Id. at 8. Pearson was

      “aggressive” towards the deputies. Id. at 17. Deputy Renner stepped around to

      Pearson’s top half of his body and “secured him on the bench so he couldn’t get

      up to continue to fight.” Id. at 7. Pearson “rolled his hips which knocked his . .

      . he came off the bench” and continued to “try to get to his feet.” Id. Pearson
      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2198 | September 26, 2016   Page 2 of 10
      was told to stop resisting, and Deputy Renner announced “[t]aser, taser, taser,”

      before deploying his taser. Id. at 8. Deputy Renner was subsequently able to

      handcuff Pearson.


[4]   On November 16, 2014, the State charged Pearson with resisting law

      enforcement as a class A misdemeanor. On November 20, 2015, the court held

      a bench trial. Deputy Renner and Deputy Ramey testified. Pearson testified

      that he went to a bar on November 15, 2014, because his “ex wouldn’t let [him]

      bring [his] son some Legos . . . .” Id. at 22. According to Pearson, he had

      numerous drinks, the next thing he remembered happening was standing on the

      side of a deck where someone swung a gate open and tased him, that he was

      tased four times in the bar, that he was incoherent after being tased at the bar,

      and that he did not remember going into the APC or being asked to remove his

      hoodie.


[5]   After the parties rested, Pearson’s counsel argued that Pearson was not

      knowingly or intentionally misbehaving in the APC based on his high level of

      intoxication and his impairment from a combination of the alcohol and the

      effects of being tased. The court stated that it was Pearson’s choice not to

      comply with the instructions of the deputies and that his voluntary intoxication

      was not a defense. The court found Pearson guilty as charged and sentenced

      him to 365 days with 355 days suspended.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2198 | September 26, 2016   Page 3 of 10
                                                      Discussion

[6]   The issue is whether the evidence is sufficient to sustain Pearson’s conviction.

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

      must consider only the probative evidence and reasonable inferences supporting

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

      witness credibility or reweigh the evidence. Id. We consider conflicting

      evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

      unless “no reasonable fact-finder could find the elements of the crime proven

      beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270

      (Ind. 2000)). It is not necessary that the evidence overcome every reasonable

      hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference

      may reasonably be drawn from it to support the verdict. Id.


[7]   The offense of resisting law enforcement as a class A misdemeanor is governed

      by Ind. Code § 35-44.1-3-1, which provides that “[a] person who knowingly or

      intentionally . . . forcibly resists, obstructs, or interferes with a law enforcement

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

      the execution of the officer’s duties . . . commits resisting law enforcement, a

      Class A misdemeanor . . . .”1 The charging information alleged that Pearson

      “did knowingly or intentionally forcibly resist, obstruct or interfere with

      DANIEL J MAJORS, a law enforcement officer with the Marion County




      1
          Subsequently amended by Pub. L. No. 198-2016, § 673 (eff. July 1, 2016).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2198 | September 26, 2016   Page 4 of 10
      Sheriff’s Office, and/or MATTHEW A RENNER, a law enforcement officer

      with the Marion County Sheriff’s Office, while said officer was lawfully

      engaged in his duties as a law enforcement officer . . . .” Appellant’s Appendix

      at 15.


[8]   Pearson argues that there is insufficient evidence that he acted forcibly. He

      asserts that there was no power or violence in his lone maneuver during this

      commotion and that, even if there was, he was reacting to the deputies’

      demands due to his voluntary intoxication prior to the arrest. He contends that

      although voluntary intoxication is not a defense to his conviction, it should be

      considered as an explanation of the slow reaction to the deputies’ orders and a

      lack of manual dexterity instead of forcible resistance. The State argues that the

      evidence is sufficient where Pearson pulled an officer into him and then

      continued to struggle after repeatedly being told to stop resisting.


[9]   The Indiana Supreme Court has held that “[s]uch a seemingly simple statute . .

      . has proven to be complex and nuanced in its application.” Walker v. State, 998

      N.E.2d 724, 726 (Ind. 2013). In Spangler v. State, 607 N.E.2d 720, 722-723 (Ind.

      1993), the Indiana Supreme Court held that the word “forcibly” is an essential

      element of the crime and modifies the entire string of verbs—resists, obstructs,

      or interferes—such that the State must show forcible resistance, forcible

      obstruction, or forcible interference. The Court also held that the word meant

      “something more than mere action.” Spangler, 607 N.E.2d at 724. “[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.”

      Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2198 | September 26, 2016   Page 5 of 10
       Id. at 723. “[A]ny action to resist must be done with force in order to violate

       this statute. It is error as a matter of law to conclude that ‘forcibly resists’

       includes all actions that are not passive.” Id. at 724.


[10]   “But even so, ‘the statute does not demand complete passivity.’” Walker, 998

       N.E.2d at 727 (quoting K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013)). In

       Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009), the Court clarified that “[t]he

       force involved need not rise to the level of mayhem.” “In fact, even a very

       ‘modest level of resistance’ might support the offense.” Walker, 998 N.E.2d at

       727 (quoting Graham, 903 N.E.2d at 966) (“even ‘stiffening’ of one’s arms when

       an officer grabs hold to position them for cuffing would suffice”)). The Indiana

       Supreme Court held:


               So in summary, not every passive—or even active—response to a
               police officer constitutes the offense of resisting law enforcement,
               even when that response compels the officer to use force.
               Instead, a person “forcibly” resists, obstructs, or interferes with a
               police officer when he or she uses strong, powerful, violent
               means to impede an officer in the lawful execution of his or her
               duties. But this should not be understood as requiring an
               overwhelming or extreme level of force. The element may be
               satisfied with even a modest exertion of strength, power, or
               violence. Moreover, the statute does not require commission of a
               battery on the officer or actual physical contact—whether
               initiated by the officer or the defendant. It also contemplates
               punishment for the active threat of such strength, power, or
               violence when that threat impedes the officer’s ability to lawfully
               execute his or her duties.


       Id.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2198 | September 26, 2016   Page 6 of 10
[11]   In Berberena v. State, which is cited by Pearson, a police officer “gave several

       loud verbal commands” for Edwin Berberena to stop. 914 N.E.2d 780, 780-781

       (Ind. Ct. App. 2009), trans. denied. The police officer ordered Berberena to

       place his hands behind his back, but Berberena did not comply. Id. at 781. The

       officer then “had to forcefully place [Berberena] against the wall of the building.

       [Berberena’s] chest was facing the building, and [the officer] had to struggle

       with him to grab his hands and place them in handcuffs.” Id. The trial court

       found Berberena guilty of resisting law enforcement. Id. On appeal, the court

       held that the officer’s testimony “that he struggled to place the handcuffs on

       Berberena’s wrists [was] ambiguous.” Id. at 782. The court also observed that

       the officer “did not testify, and there [was] no evidence, that Berberena stiffened

       his arms or otherwise ‘made threatening or violent actions’ to contribute to the

       struggle.” Id. (quoting Ajabu v. State, 704 N.E.2d 494, 496 (Ind. Ct. App.

       1998)). Lastly, the court observed that the officer “could not remember what

       Berberena was doing with his hands, and the struggle did not last very long.”

       Id. The court concluded that the evidence was insufficient to support

       Berberena’s conviction. Id. at 783.


[12]   Pearson also cites Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009), trans.

       denied. In that case, Curtis Colvin kept his hands in his pockets during a

       struggle with officers and did not comply with officers’ commands, and the

       officers had to use force to execute the arrest. 916 N.E.2d at 309. The State did

       not present any evidence that Colvin used force or made threatening or violent

       actions to contribute to the struggle with the officers. Id. The court held that

       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2198 | September 26, 2016   Page 7 of 10
       the evidence did not support a reasonable inference that Colvin did more than

       passively resist the officers. Id.


[13]   Here, unlike the defendants’ actions in Berberena and Colvin, we cannot say that

       the State did not present any evidence that Pearson used force. The record

       reveals that Sergeant Majors asked Pearson to remove his hoodie from his face,

       that Pearson became very agitated, pulled his hoodie over his head, and said

       “Take the shirt,” and that when Sergeant Majors reached out and grabbed a

       hold of the shirt, Pearson pulled it back towards him “which pulled [Sergeant]

       Majors into him” and “down on top of him.” Transcript at 7, 16. Deputy

       Renner testified that he stepped around to Pearson’s head and secured him on

       the bench so that Pearson “couldn’t get up to continue to fight.” Id. at 7.

       When asked if Pearson continued to fight, Deputy Renner answered: “Yes he

       rolled his hips which knocked his . . . he came off the bench. He continued to

       try to get to his feet.” Id. Further, as conceded by Pearson, his voluntary

       intoxication is not a defense. See Ind. Code § 35-41-2-5 (“Intoxication is not a

       defense in a prosecution for an offense and may not be taken into consideration

       in determining the existence of a mental state that is an element of the offense

       unless the defendant meets the requirements of IC 35-41-3-5.”); Ind. Code § 35-

       41-3-5 (“It is a defense that the person who engaged in the prohibited conduct

       did so while he was intoxicated, only if the intoxication resulted from the

       introduction of a substance into his body . . . without his consent . . . or . . .

       when he did not know that the substance might cause intoxication.”); see also

       Sanchez v. State, 749 N.E.2d 509, 520 (Ind. 2001) (discussing Ind. Code § 35-41-


       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2198 | September 26, 2016   Page 8 of 10
       3-5 and holding that the statute “redefines the requirement of mens rea to

       include voluntary intoxication, in addition to the traditional mental states, i.e.,

       intentionally, knowingly, and recklessly”).


[14]   Based upon the record, we conclude that there exists evidence of probative

       value from which a reasonable trier of fact could find that Pearson exercised at

       least a modest exertion of strength, power, or violence that impeded Sergeant

       Majors and/or Deputy Renner in the lawful execution of their duties and that

       he was guilty beyond a reasonable doubt of resisting law enforcement as a class

       A misdemeanor. See Lopez v. State, 926 N.E.2d 1090, 1093-1094 (Ind. Ct. App.

       2010) (holding that the evidence was sufficient to prove that the defendant acted

       with the requisite force in resisting the officers in the execution of their duties

       where the defendant refused to stand and “started to pull away” when the

       officers tried to physically pull him up from the couch and where the officers

       were unable to pull his arms out from under the defendant), trans. denied;

       Johnson v. State, 833 N.E.2d 516, 518-519 (Ind. Ct. App. 2005) (holding that the

       defendant forcibly resisted police officers by turning away and pushing away

       with his shoulders as they attempted to search him, refusing to enter the

       transport vehicle, and stiffening up, thus requiring the officers to exert force to

       place him inside the transport vehicle).


                                                   Conclusion

[15]   For the foregoing reasons, we affirm Pearson’s conviction.


[16]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2198 | September 26, 2016   Page 9 of 10
Robb, J., and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A05-1512-CR-2198 | September 26, 2016 Page 10 of 10
