MEMORANDUM DECISION
                                                                              FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                         Feb 27 2017, 8:57 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                    Kelly A. Loy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Corey G. Brown,                                          February 27, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1604-CR-774
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Ronnie Huerta,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G19-1512-CM-45735



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-774 | February 27, 2017           Page 1 of 7
[1]   Corey G. Brown challenges his conviction of Class A misdemeanor resisting

      law enforcement.1 He notes the charging information and sentencing order

      reference Indiana Code Section 35-44.1-1-3(a)(2), and he argues the evidence

      presented did not prove the elements in that subsection. As the language in the

      charging information put Brown on notice the State was alleging resisting law

      enforcement as defined in Indiana Code Section 35-44.1-1-3(a)(1), and as the

      State presented evidence to prove all the elements thereof, we affirm but

      remand for the trial court to correct the clerical errors.



                                 Facts and Procedural History
[2]   On December 24, 2015, Indianapolis Metropolitan Police Department Officer

      Shawn Smith was called to a Speedway station regarding a disturbance with a

      customer. En route, Officer Smith received a report the customer had left the

      Speedway premises and was headed west on foot. The description of the

      customer was a black male in black clothes with yellow gloves.2


[3]   Officer Smith located a man matching the description. The man, later

      identified as Brown, began cursing when Officer Smith approached him.

      Brown would not stop walking when Officer Smith ordered him to stop.

      Brown testified, “police are always fucking with me. You don’t have to - - - you




      1
          Ind. Code § 35-44.1-3-1 (2014).
      2
          Officer Smith testified the gloves were “rubber style yellow gloves like cleaning gloves.” (Tr. at 8.)


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-774 | February 27, 2017                 Page 2 of 7
      don’t have any reason to stop me.” (Tr. at 9.) Officer Smith told Brown to

      stand by the police car so Officer Smith could conduct a pat down. Brown put

      his hands in his pockets, so Officer Smith pulled Brown’s hands behind his back

      in an attempt to handcuff Brown, but Brown began to physically resist. Brown

      “clenched his fists and stared [sic] to pull his arms back down to his side and

      back around the front of him[.]” (Id. at 16.) Brown began “pulling and walking

      away.” (Id. at 17.) As they struggled, Officer Smith and Brown ended up on

      the ground in the street. Officer Smith, with the assistance of another officer,

      was then able to subdue Brown.


[4]   The State charged Brown with Class A misdemeanor resisting law enforcement,

      Class B misdemeanor battery,3 and Class B misdemeanor battery by bodily

      waste.4 On March 17, 2016, the State dismissed the battery charges. At a

      bench trial, Brown made a Trial Rule 41(B) motion to dismiss because the

      officer’s attempts to handcuff Brown “went beyond the scope of the officer’s

      lawful duty.” (Id. at 31.) The trial court denied the motion, finding it was “a

      good stop.” (Id. at 34.) Brown was found guilty of resisting law enforcement

      and sentenced to 180 days.



                                     Discussion and Decision



      3
          Ind. Code § 35-42-2-1(b)(1) (2014).
      4
          Ind. Code § 35-42-2-1(b)(2) (2014).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-774 | February 27, 2017   Page 3 of 7
[5]   Brown claims the State did not present sufficient evidence to prove Indiana

      Code Section 35-44.1-3-1(a)(2). We agree.5 However, that is not the end of our

      analysis. As the State points out, the reference to subsection (a)(2) in the

      charging information and the sentencing order appear to have been a scrivener’s

      error.


[6]   The resisting law enforcement statute states:


               A person who knowingly or intentionally:


                       (1) 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;


                       (2) forcibly resists, obstructs, or interferes with the
                       authorized service or execution of a civil or criminal
                       process or order of a court; or


                       (3) flees from a law enforcement officer after the officer
                       has, by visible or audible means, including operation of the
                       law enforcement officer’s siren or emergency lights,
                       identified himself or herself and ordered the person to stop;


               commits resisting law enforcement, a Class A misdemeanor[.]




      5
        As Brown notes, subsection (a)(2) criminalizes interference with process servers. As Officer Smith was not
      a process server, Brown is correct the evidence did not prove he had resisted service of process or a court
      order.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-774 | February 27, 2017           Page 4 of 7
      Ind. Code § 35-44.1-3-1 (2014).


[7]   The language used to charge Brown with resisting law enforcement states:


              On or about December 24, 2015, COREY GILBERT BROWN
              did knowingly or intentionally forcibly resist the authorized
              lawful duties and service of Officer Shawn Smith, IMPD, while
              said Officer was engaged in his lawful duties, by twisting and
              pulling arms away from restraint[.]


      (App. Vol. II at 19.) That charging information cites “I.C. 35-44.1-3-1(a)(2).”

      (Id.)


[8]   Brown notes the charging language contains the words “authorized” and

      “service” as in subsection (a)(2). However, it also contains the words “engaged

      in” and “duties” from subsection (a)(1) and, more importantly, does not

      reference the words “process” or “order” as required for subsection (a)(2). The

      charging information states Brown twisted and pulled his arms away to forcibly

      resist a law enforcement officer doing his duties. Although the State cited

      subsection (a)(2) in the charging information the charging language tracks

      subsection (a)(1).


[9]   Be that as it may, Brown cannot be convicted of a crime without notice of the

      charge. I.C. § 35-34-1-2(a)(4). “Clear notice serves the dual purposes of

      allowing an accused to prepare his defense and of protecting him from being

      placed twice in jeopardy for the same offense.” Wright v. State, 658 N.E.2d 563,

      565 (Ind. 1995). Thus, the information is to be “in writing and allege the

      commission of an offense by . . . setting forth the nature and elements of the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-774 | February 27, 2017   Page 5 of 7
       offense charged in plain and concise language without unnecessary repetition.”

       Ind. Code § 35-34-1-2(a)(4). The information is to “state the offense in the

       language of the statute or in words that convey a similar meaning.” Truax v.

       State, 856 N.E.2d 116, 123 (Ind. Ct. App. 2006). “Defects or imperfections in a

       charging instrument are grounds for reversal only where they prejudice the

       substantial rights of the defendant.” Alvers v. State, 489 N.E.2d 83, 86 (Ind. Ct.

       App. 1986), reh’g denied, trans. denied.


[10]   At trial, Brown did not contend he was confused or misled about the charge

       against him. In fact, at the end of the State’s evidence, Brown asserted a Trial

       Rule 41(B) motion to have the charges dismissed on the basis that Officer

       Smith’s actions “went beyond the scope of the officer’s lawful duty,” (Tr. at 31),

       and that element of resisting law enforcement exists only in the subsection

       (a)(1) definition. Thus, although the State cited the wrong statute in the

       information, Brown had notice of the crime alleged so that he could prepare his

       defense, and we find no reversible error. See Hestand v. State, 491 N.E.2d 976,

       980 (Ind. 1986) (no error when citation incorrect but information language

       adequately informed defendant of the charges). As the State proved the

       elements of resisting law enforcement as charged,6 we affirm Brown’s

       conviction.




       6
        Brown does not challenge the sufficiency of the evidence to prove he resisted law enforcement as charged.
       Officer Smith testified Brown had “clenched his fists and stared [sic] to pull his arms back down to his side
       and back around the front of him as [Officer Smith] was trying to pull them behind his back.” (Tr. at 16.)
       Brown continued to “pull[] and walk[] away,” (id. at 17), resulting in the two men ending up in “the middle

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-774 | February 27, 2017            Page 6 of 7
                                                  Conclusion
[11]   As the language in the charging information put Brown on notice he was being

       charged under Indiana Code Section 35-44.1-1-3(a)(1), we find no error in his

       conviction. However, we remand for the trial court to correct the sentencing

       order to indicate the proper statutory citation. See Willey v. State, 712 N.E.2d

       434, 446 (Ind. 1999) (remanding to trial court “for correction of the clerical

       errors”). Accordingly, we affirm and remand.


[12]   Affirmed and remanded.


       Najam, J., and Bailey, J., concur.




       of the street.” (Id.) This evidence was sufficient to prove the crime alleged in the charging information. See,
       e.g., Johnson v. State, 833 N.E.2d 516, 518 (Ind. Ct. App. 2005) (“turning away and pushing away” sufficient
       evidence to prove Johnson resisted law enforcement).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1604-CR-774 | February 27, 2017             Page 7 of 7
