ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Joel M. Schumm                                              Gregory F. Zoeller
Indianapolis, Indiana                                       Attorney General of Indiana

Ruth Ann Johnson                                   Andrew A. Kobe
Marion County Public Defender                      Monika Prekopa Talbot
Indianapolis, Indiana                              Deputy Attorneys General
                                                   Indianapolis, Indiana
_____________________________________________________________________________


                                            In the                                FILED
                         Indiana Supreme Court
                                                                               Feb 22 2013, 9:23 am


                            _________________________________                          CLERK
                                                                                     of the supreme court,
                                                                                     court of appeals and
                                                                                            tax court

                                     No. 49S02-1301-JV-20

K.W.,
                                                            Appellant (Defendant below),

                                                v.

STATE OF INDIANA,
                                                      Appellee (Plaintiff below).
                            _________________________________

                 Appeal from the Marion Superior Court, No. 49D09-1109-JD-2341
                         The Honorable Gary Chavers, Judge Pro Tempore
                           The Honorable Geoffrey Gaither, Magistrate
                             _________________________________

        On Petition to Transfer from the Indiana Court of Appeals, No. 49A02-1201-JV-9
                            _________________________________

                                       February 22, 2013

Rush, Justice.

        A school liaison officer intervened in a hallway scuffle between K.W. and another student.
K.W. turned away from the officer’s effort to handcuff him, and was adjudicated delinquent for
resisting law enforcement. We granted transfer, and now reverse because there is insufficient evi-
dence that K.W. acted “forcibly,” as the offense of resisting law enforcement requires.
        We also invite the Legislature to consider whether to bring school-resource officers —
police officers privately employed by schools for school security and disciplinary purposes —
within the ambit of the resisting-law-enforcement statute. The current statute applies to law-
enforcement officers only when they are engaged in law-enforcement duties, which does not
always apply to the different, though important, duties of a school officer. A common-law
resolution of that question would risk unintended consequences, but a narrower legislative
approach may be appropriate.

                                  Facts and Procedural History

        On August 30, 2011, K.W. and another student were “facing off” in a school hallway,
with their fists raised. Tr. 3. A teacher promptly intervened, detaining K.W. until a school-liaison
officer could arrive. Id.

        The liaison officer who arrived, Eugene Smith, was privately employed by the school, but
he was also a sergeant with the Indianapolis Metropolitan Police Department and wearing his
IMPD uniform. Tr. 2-3 & State’s Exh. 1 (surveillance video of the incident). Sergeant Smith
attempted to handcuff K.W. “for [K.W.’s] safety,” as was his “normal procedure.” Tr. 3.

        The facts most favorable to the judgment are that K.W. turned to walk away, pulling
against Sergeant Smith’s grasp on his wrist. State’s Exh. 1; accord, Tr. 3-4 (“[K.W.] began to
resist and pull away. . . . He turned, pulled away[.]”). At that point, Sergeant Smith immediately
used a “straight arm-bar takedown” to “subdue” K.W., tackled him, and finished handcuffing
him. Tr. 4 & State’s Exh. 1.

        K.W. was adjudicated delinquent without the court ordering any disposition for resisting
law enforcement. Thus, the court immediately dismissed the case after finding K.W. delinquent,
without imposing terms of probation or any other consequence. K.W. appealed, challenging the
sufficiency of the evidence.

        The Court of Appeals reversed, finding insufficient evidence that Officer Smith was “law-
fully engaged in the execution of the officer’s duties” as a law-enforcement officer. K.W. v. State,
976 N.E.2d 61, 63 (Ind. Ct. App. 2012). The Court reasoned that Officer Smith was acting in his

                                                 2
capacity as school-liaison officer but not a law-enforcement officer. Id. at 65. The State sought
transfer, and we reverse the trial court, though for different reasons than the Court of Appeals.

                                    Sufficiency of the Evidence

       “In reviewing a sufficiency of the evidence claim, we do not reweigh the evidence or assess
the credibility of the witnesses.” Treadway v. State, 924 N.E.2d 621, 639 (Ind. 2010). “Rather, we
look to the evidence and reasonable inferences drawn therefrom that support the [judgment], and
we will affirm the [adjudication] if there is probative evidence from which a reasonable [factfinder]
could have found the defendant guilty beyond a reasonable doubt.” Id. We must therefore reverse
if there is no evidence or reasonable inference to support any one of the necessary elements of the
offense. E.g., Grace v. State, 731 N.E.2d 442, 445 (Ind. 2000) (“[T]here must be sufficient evi-
dence on each material element” to affirm a conviction).

       The basic offense of resisting law enforcement has five essential elements: that K.W. (1)
knowingly or intentionally (2) forcibly (3) resisted, obstructed, or interfered with (4) a law enforce-
ment officer, (5) while the officer was lawfully engaged in the execution of the officer’s duties.
Ind. Code § 35-44-3-3 (2011) (repealed; recodified at I.C. § 35-44.1-3-1 (2012)); Spangler v. State,
607 N.E.2d 720, 723 (Ind. 1993) (construing “forcibly” as modifying the entire string “resists, ob-
structs, or interferes”). Because the Court of Appeals found the fifth element dispositive, it did not
address the others. K.W., 976 N.E.2d at 63. We reverse, though, for insufficient evidence of the
second element — whether K.W. “forcibly” resisted, obstructed, or interfered with Officer Smith.

                                      I. “Forcibly” Resisting

       This Court has held that “one ‘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.” Spangler, 607 N.E.2d at 723. The level of force certainly “need not rise to the level of
mayhem.” Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009). Yet the statute does not demand
complete passivity, either. Merely walking away from a law-enforcement encounter, Spangler, 607
N.E.2d at 724, leaning away from an officer’s grasp, A.C. v. State, 929 N.E.2d 907, 912 (Ind. Ct.
App. 2010), or “twisting and turning ‘a little bit’” against an officer’s actions, Ajabu v. State, 704
N.E.2d 494, 495-96 (Ind. Ct. App. 1998), do not establish “forcible” resistance.

                                                  3
        Here, the only evidence presented to the trial court was Sergeant Smith’s testimony and the
surveillance video of the incident, and neither establishes “force” beyond a reasonable doubt.
Sergeant Smith’s testimony was merely that K.W. “began to resist and pull away,” Tr. 3, or “turned,
[and] pulled away,” Tr. 4. But nothing in either description suggests any “strength, power, or
violence” in K.W.’s maneuver, beyond what is inherent in taking a step away, see Spangler, 607
N.E.2d at 723-24, “lean[ing] away,” see A.C., 929 N.E.2d at 912, or “twisting and turning ‘a little
bit,’” see Ajabu, 704 N.E.2d at 495 — none of which amount to “forcible” resistance.1 Without
evidence of “forcible” resistance, K.W.’s delinquency adjudication cannot be sustained.

                                      II. School Liaison Officers

        Though our grant of transfer vacates the Court of Appeals’ opinion, Ind. Appellate Rule
58(A), we acknowledge the legitimate policy question it raised. Our resisting law enforcement
statute prohibits “forcibly resist[ing], obstruct[ing], or interfer[ing] with a law enforcement officer
or a person assisting the officer while the officer is lawfully engaged in the execution of the offi-
cer’s duties.” I.C. § 35-44.1-3-1(a)(1) (2012). And while it has become commonplace for schools
to employ off-duty law enforcement officers as “liaison officers,” “resource officers,” and in other
similarly titled positions, there are sound reasons to distinguish between police performing school-
discipline duties and those performing law-enforcement duties.

        “[T]he school setting requires some easing of the restrictions to which searches by public
authorities are ordinarily subject.” New Jersey v. T.L.O., 469 U.S. 325, 340 (1985). Thus, officers
acting as agents of a school for disciplinary purposes may stop a student to demand identification,
D.L. v. State, 877 N.E.2d 500, 505-06 (Ind. Ct. App. 2007), trans. denied; seize a student on an
uncorroborated anonymous tip without reasonable articulable suspicion, T.S. v. State, 863 N.E.2d
362, 376-77 (Ind. Ct. App. 2007), trans. denied; and conduct a pat-down search of a student with-



1
  The surveillance video further confirms Sergeant Smith’s restrained and cautious characterization of
K.W.’s conduct. It shows K.W. turning and taking a step away from Sergeant Smith while his arm was still
in the officer’s grasp, immediately after which Sergeant Smith brought him to the floor by the “straight arm-
bar takedown” his testimony described. Compare State’s Exh. 1, with Tr. 3-4. See also Scott v. Harris, 550
U.S. 372, 380-81 (2007) (assessing the overall summary judgment record in light of undisputedly accurate
video of the event at issue).

                                                     4
out warrant or probable cause, C.S. v. State, 735 N.E.2d 273, 276 (Ind. Ct. App. 2000), trans.
denied and D.B. v. State, 728 N.E.2d 179, 181 (Ind. Ct. App. 2000), trans. denied — all of which
would be unconstitutional for law-enforcement purposes.

        We recognize it is somewhat anomalous that two uniformed law-enforcement officers
responding to the same school incident could be treated differently for purposes of resisting law
enforcement, if one was purely an “outside” officer while the other was a school-resource officer.
School-resource officers serve a vitally important role in maintaining school safety and order
against a growing range of discipline problems and threats, and we in no way diminish the value
of their work. Yet we are also reluctant to risk blurring the already-fine Fourth Amendment line
between school-discipline and law-enforcement duties by allowing the same officer to invisibly
“switch hats” — taking a disciplinary role to conduct a warrantless search in one moment, then in
the next taking a law-enforcement role to make an arrest based on the fruits of that search.

        We note, though, that it would be within the Legislature’s prerogative to conclude that
evolving threats to school security and discipline warrant expanding the resisting law enforcement
statute to apply to forcible resistance, obstruction, or interference “with a law enforcement[, school
liaison, or school resource] officer[,] or a person assisting the officer[,] while the officer is lawfully
engaged in the execution of the officer’s duties.” See I.C. § 35-44.1-3-1(a)(1). Not only is such a
policy judgment about the changing role of school officers best reserved to a politically responsive
branch of government, it would be less likely than common law to cause unintended Fourth
Amendment consequences. The Legislature may wish to consider such a change.

                                              Conclusion

        Because there is insufficient evidence that K.W. forcibly resisted Sergeant Smith, we
reverse the trial court and vacate K.W.’s delinquency adjudication.

Dickson, C.J., and Rucker, David, and Massa, JJ., concur.




                                                    5
