MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                               FILED
this Memorandum Decision shall not be                           Dec 29 2016, 9:41 am
regarded as precedent or cited before any
court except for the purpose of establishing                         CLERK
                                                                 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
Stanley L. Campbell                                     Gregory F. Zoeller
Fort Wayne, Indiana                                     Attorney General of Indiana
                                                        James B. Martin
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Keith E. Hopkins, Jr.,                                  December 29, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        02A03-1607-CR-1588
        v.                                              Appeal from the Allen Superior
                                                        Court
State of Indiana,                                       The Honorable Wendy W. Davis,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        02D05-1511-F6-1125



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1588 | December 29, 2016   Page 1 of 10
[1]   Keith Hopkins appeals his convictions for two counts of Class A Misdemeanor

      Resisting Law Enforcement.1 Hopkins argues that police officers effected an

      unconstitutional warrantless arrest and that there is insufficient evidence

      supporting the convictions. Finding no constitutional violation and sufficient

      evidence, we affirm.


                                                    Facts
[2]   On November 14, 2015, sometime after 2:30 a.m., the Fort Wayne Police

      Department received a hang-up 911 call. Officer Lucas McDonald responded

      to the residence where the call originated. He knocked on the door of the

      home, later identified as the home of Hopkins’s parents, and a man, later

      identified as Hopkins, answered the door. Officer McDonald asked Hopkins if

      everything was okay and Hopkins said everything was fine. Officer McDonald

      then


                 noticed that there was a woman, didn’t know who she was,
                 didn’t know who he was either at the time. . . . She was
                 obviously very upset, crying, just looked like she had been really
                 upset maybe and so I asked her what her name was, and
                 [Hopkins] interrupted and spoke for her and said she doesn’t
                 have to give that to you . . . .


      Tr. Vol. I p. 232-33. Additionally, the officer noticed another man sitting on a

      couch inside the house. Officer McDonald observed the following of Hopkins:




      1
          Ind. Code § 35-44.1-3-1


      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1588 | December 29, 2016   Page 2 of 10
              He looked very angry. His body was tense. He had a small kind
              of like wound with blood freshly trickling out on his arm, very
              short, very stern voice, aggressive, argumentative, uncooperative,
              very uncooperative.


      Id. at 233. Hopkins closed the door on the officer’s arm and the officer returned

      to his vehicle.


[3]   Feeling concerned about the situation, Officer McDonald ran a check on

      Hopkins and learned that there were mutual protective orders in place between

      Hopkins and Leah Hutchinson. As Officer McDonald did not have a picture of

      Hutchinson, he was unable to determine whether the upset woman inside the

      house was her. At Officer McDonald’s request, Officer Jhormy Martinez went

      to Hutchinson’s home to talk with her. Hutchinson, who was crying and had a

      fearful demeanor, reported to Officer Martinez that Hopkins had just choked

      and assaulted her in front of their child and that she had stabbed him to make

      him stop. She had bruising on her face, red marks around her neck, and red

      abrasions on her chest area. Officer Martinez related to Officer McDonald that

      there was probable cause for charges against Hopkins.


[4]   In the meantime, Officer McDonald had also learned that Hopkins was on

      parole for possession of a firearm by a serious violent felon. Officer Tim

      Hughes arrived to the scene and the two officers formulated a plan about how

      to engage Hopkins in a safe manner. The officers were concerned about the

      safety of the other people inside the residence, the fact that there may have been

      a gun inside the home, and the possibility that Hopkins could barricade himself


      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1588 | December 29, 2016   Page 3 of 10
      inside the home. Officer Hughes approached the house and Hopkins opened

      the door; Officer Hughes tried to encourage Hopkins to come out and speak

      with the officers, but he refused. The officer also asked if Hopkins could send

      out the other family members present in the house; Hopkins reported that they

      did not want to leave.


[5]   Finally, after other efforts had failed, the officers decided to employ a taser so

      that they could effect a peaceful arrest. Hopkins was told that he was going to

      be arrested and was then tased, but the taser deployed ineffectively and Hopkins

      was able to flee. He ran through the house and out the back door, and the

      officers pursued him on foot for over two blocks. When the officers finally

      reached him, Hopkins began to comply by walking over to them. One officer

      approached Hopkins and grabbed his right arm, but Hopkins was tensing and

      turning away, requiring the officer to keep pulling on the arm to get it behind

      Hopkins’s back so that handcuffs could be applied. It required the efforts of

      three officers to get Hopkins handcuffed. Hopkins began shifting his weight

      and evading the handcuffs; finally, one of the officers administered two bursts

      of mace to Hopkins’s face and they were able to handcuff his hands behind his

      back.


[6]   On November 18, 2015, the State charged Hopkins with Level 6 felony battery,

      Level 6 felony strangulation, Class A misdemeanor interference with the

      reporting of a crime, and two counts of Class A misdemeanor resisting law

      enforcement. Hopkins’s jury trial took place on May 25 and 26, 2016, after

      which the jury found him guilty of two counts of resisting law enforcement and

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1588 | December 29, 2016   Page 4 of 10
      not guilty of the remaining charges. On June 13, 2016, the trial court sentenced

      Hopkins to one year for the first count and six months for the second count, to

      be served consecutively. Hopkins now appeals.


                                      Discussion and Decision
                                            I. Probable Cause
[7]   Hopkins first argues that law enforcement did not have probable cause to arrest

      him without a warrant. Initially, we note that Hopkins did not file a motion to

      suppress prior to trial or object in any way on this basis during trial. As a result,

      he has unquestionably waived this argument. E.g., Butler v. State, 724 N.E.2d

      600, 604 (Ind. 2000).2


[8]   Waiver notwithstanding, we note that Indiana Code section 35-33-1-1(a)(5)

      explicitly authorizes a law enforcement officer to effect a warrantless arrest of

      an individual if the officer has probable cause to believe that the person has

      committed battery resulting in bodily injury or domestic battery. See also I.C. §

      35-33-1-1(a)(2) (authorizing warrantless arrest of individual whom law

      enforcement has probable cause to believe has committed a felony). In this

      case, Hutchinson told Officer Martinez that Hopkins had choked and assaulted

      her in front of their child, and the officer observed bruising on her face, red



      2
        The State explicitly instructed the officers who testified not to refer to the fact that Hopkins was on parole
      for possession of a firearm by a serious violent felon. Had Hopkins raised a probable cause argument, this
      fact would have come to light for the jury (Hopkins contends that the jury should have decided the issue). It
      is manifestly unfair for him to have had the benefit of the jury’s ignorance of this prejudicial fact and then
      raise this argument for the first time on appeal.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1588 | December 29, 2016            Page 5 of 10
      marks around her neck, and red abrasions on her chest. Hutchinson also

      reported that she had stabbed Hopkins to get him off of her. Officer McDonald

      had observed Hopkins to be angry, tense, aggressive, and to have a small

      wound on his arm that was bleeding. These facts certainly constitute probable

      cause to believe that Hopkins had committed battery resulting in bodily injury

      and/or domestic battery. Consequently, law enforcement was statutorily

      authorized to effect a warrantless arrest.


[9]   Probable cause for the purpose of the above statute likewise constitutes probable

      cause for the purpose of the Fourth Amendment to the United States

      Constitution. Hopkins argues that, in addition to probable cause, law

      enforcement was required to identify exigent circumstances to effect the

      warrantless arrest. Sapen v. Indiana, 869 N.E.2d 1273, 1276-77 (Ind. Ct. App.

      2007) (holding that, for Fourth Amendment purposes, the warrantless arrest of

      a person in his home3 requires both probable cause and exigent circumstances

      making it impracticable to obtain a warrant first). The record here reveals the

      following:


           When Officer McDonald first responded, he observed an angry, tense,
            aggressive Hopkins, who had a bleeding wound on his arm. The officer
            also saw a woman inside who was upset and crying and another man
            sitting on a couch.




      3
       We note that here, Hopkins was eventually arrested blocks away from his home. But even if he had been in
      his home when arrested, his argument is unavailing.

      Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1588 | December 29, 2016     Page 6 of 10
            Officer McDonald then learned that Hopkins and Hutchinson had
             mutual protective orders and that Hopkins was on parole for possession
             of a firearm by a serious violent felon.
            Officer Martinez spoke to Hutchinson, who stated that Hopkins had
             assaulted her and had the physical wounds to corroborate her statements.

       From all of these facts, the officers had several reasonable concerns:

       (1) Hopkins may have had one or more firearms in his house; (2) the other

       people in the house, including the woman who was visibly upset, may have

       been in danger; and (3) there was a very real chance that Hopkins would

       barricade himself inside the house with other people inside of it. We find that

       these facts constitute exigent circumstances such that the warrantless arrest of

       Hopkins was not unconstitutional.4 We find no error in the admission of

       evidence stemming from the warrantless arrest of Hopkins.


                                              II. Sufficiency
[10]   Next, Hopkins argues that there is insufficient evidence supporting his two

       convictions for Class A misdemeanor resisting law enforcement. When

       reviewing a claim of insufficient evidence, we will consider only the evidence

       and reasonable inferences that support the conviction. Gray v. State, 957 N.E.2d

       171, 174 (Ind. 2011). We will affirm if, based on the evidence and inferences, a




       4
        Hopkins does not articulate separate arguments under both the Indiana and United States Constitutions,
       and we will not do so on his behalf. We note, however, that he would be unsuccessful under either
       constitution in any event.

       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1588 | December 29, 2016      Page 7 of 10
       reasonable jury could have found the defendant guilty beyond a reasonable

       doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).


                                      A. Resisting By Flight
[11]   To convict Hopkins of resisting law enforcement by flight, the State was

       required to prove beyond a reasonable doubt that he fled from a law

       enforcement officer after the officer had, by visible or audible means, identified

       himself and ordered Hopkins to stop. I.C. § 35-44-3-3(a)(3). Hopkins concedes

       all of these elements. He merely argues that the police did not have probable

       cause to believe that he had committed an offense and, thus, to arrest and order

       him to stop. Specifically, he argues that the record does not reveal what specific

       statements Officer Martinez made to Officer McDonald about what

       Hutchinson had said.


[12]   We disagree. An officer may, in good faith, rely on information communicated

       by another officer to establish probable cause. Row v. Holt, 864 N.E.2d 1011,

       1019 (Ind. 2007). And so long as sufficient knowledge to establish probable

       cause exists within the organization, the arrest is valid based on the collective

       information of the officers. Id. As noted above, Hutchinson told Officer

       Martinez that Hopkins had assaulted her, and the officer observed bruising to

       her face, red marks around her neck, and abrasions to her chest. Officer

       Martinez testified that he reported back to Officer McDonald that there was

       probable cause for the arrest. This evidence suffices to establish that law

       enforcement at the scene had probable cause to arrest Hopkins and, obviously,


       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1588 | December 29, 2016   Page 8 of 10
       to order him to stop when he fled. We find the evidence sufficient to support

       this conviction.


                                      B. Resisting By Force
[13]   To convict Hopkins of resisting law enforcement by force, the State was

       required to prove beyond a reasonable doubt that he knowingly or intentionally

       forcibly resisted, obstructed, or interfered with a law enforcement officer who

       was lawfully engaged in the execution of the officer’s duties. I.C. § 35-44.1-3-

       1(a)(1). One forcibly resists when “strong, powerful, violent means are used to

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

       v. State, 999 N.E.2d 859, 861 (Ind. Ct. App. 2013). Specifically, our Supreme

       Court has held that a defendant forcibly resisted when he pushed away with his

       shoulders while cursing and yelling and then “stiffens up.” Graham v. State, 903

       N.E.2d 963, 965 (Ind. 2009).


[14]   One officer testified that he tried to gain control of Hopkins’s arm but that

       Hopkins would not “let us gain control of it. He was tensing, turning away

       from me. I had to keep pulling on it to get it behind him . . . .” Tr. Vol. II p.

       32. Hopkins eventually ended up on the ground on his stomach and began to

       struggle, “shifting his body, shifting his weight. To me, it appeared that he was

       trying to get out from underneath me to flee again or to escape . . . .” Id. at 55.

       All told, it took three police officers and two bursts of mace to Hopkins’s face to

       get him sufficiently subdued to place handcuffs on his wrists. We find that a

       reasonable factfinder could have found Hopkins guilty of resisting law


       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1588 | December 29, 2016   Page 9 of 10
       enforcement by force based upon this evidence. In other words, the evidence is

       sufficient.


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


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A03-1607-CR-1588 | December 29, 2016   Page 10 of 10
