                                                           FILED
FOR PUBLICATION                                          Aug 28 2012, 8:52 am


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




ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

JOEL M. SCHUMM                                 GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

                                               MONIKA PREKOPA TALBOT
                                               Deputy Attorney General
                                               Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

K.W.,                                          )
                                               )
        Appellant-Respondent,                  )
                                               )
               vs.                             )       No. 49A02-1201-JV-9
                                               )
STATE OF INDIANA,                              )
                                               )
        Appellee-Petitioner.                   )


                     APPEAL FROM THE MARION SUPERIOR COURT
                      The Honorable Gary Chavers, Judge Pro Tempore
                             Cause No. 49D09-1109-JD-2341




                                     August 28, 2012


                               OPINION - FOR PUBLICATION


NAJAM, Judge
                            STATEMENT OF THE CASE

       K.W. appeals his adjudication as a delinquent child for committing resisting law

enforcement, as a Class D felony when committed by an adult. K.W. presents a single

issue for our review, namely, whether the State presented sufficient evidence to support

the true finding.

       We reverse.

                      FACTS AND PROCEDURAL HISTORY

       On August 30, 2011, K.W., a fifteen-year-old student at Ben Davis High School in

Indianapolis, was in a school hallway when he and another student indicated that they

were about to fight by “facing off” and raising their fists. Transcript at 3. A teacher

intervened and prevented the fight from occurring. The teacher detained K.W. until

Eugene Smith arrived.     Smith, an officer with the Indianapolis Metropolitan Police

Department (“IMPD”), at the time of his interaction with K.W. was working in his

capacity as a private “Liaison Officer” employed by the school. Id. at 2. Officer Smith

immediately attempted to place K.W. in handcuffs “for [K.W.’s] safety,” and K.W.

initially complied by putting one arm behind his back. Id. at 3. But as Officer Smith

began to place the handcuffs on him, K.W. took one or more steps and “pulled away”

from Officer Smith. Id. at 4. Officer Smith then initiated a “straight arm-bar takedown”

of K.W. in order to “subdue” him and complete the handcuffing process. Id. Officer

Smith struggled with K.W. to get him down to the floor and sustained injuries to his right

elbow and right shoulder in the course of the maneuver.




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       The State filed a delinquency petition against K.W. for resisting law enforcement,

as a Class D felony when committed by an adult. Following a hearing, the juvenile court

entered a true finding and adjudicated K.W. a delinquent child. This appeal ensued.

                            DISCUSSION AND DECISION

       K.W. contends that the State presented insufficient evidence to support his

adjudication as a delinquent child for committing resisting law enforcement, as a Class D

felony when committed by an adult. When presented with a challenge to the sufficiency

of the evidence upon review of a juvenile adjudication, this court will consider only the

evidence and reasonable inferences supporting the judgment. J.B. v. State, 748 N.E.2d

914, 916 (Ind. Ct. App. 2001). We will neither reweigh the evidence nor judge witness

credibility.   Id.   If there is substantial evidence of probative value from which a

reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable

doubt, we will affirm the adjudication. Id.

       To prove resisting law enforcement, as a Class D felony when committed by an

adult, the State had to show that K.W. 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 and that K.W. inflicted bodily injury on

or otherwise caused bodily injury to another person. See Ind. Code § 35-44-3-3. Here,

K.W. contends that the State presented insufficient evidence to prove three elements of

the offense, namely, whether Officer Smith was a law enforcement officer engaged in the

execution of his duties; whether K.W. forcibly resisted Officer Smith; and whether K.W.

inflicted bodily injury or otherwise caused bodily injury to Officer Smith. We find the

first of these contentions dispositive, namely, whether Officer Smith was a law
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enforcement officer lawfully engaged in the execution of his duties. Accordingly, we

need only address that issue to resolve this appeal.

       Indiana Code Section 35-41-1-17(a) defines “law enforcement officer” as: (1) a

police officer (including a correctional police officer), sheriff, constable, marshal,

prosecuting attorney, special prosecuting attorney, special deputy prosecuting attorney,

the securities commissioner, or the inspector general; (2) a deputy of any of those

persons; (3) an investigator for a prosecuting attorney or for the inspector general; (4) a

conservation officer; (5) an enforcement officer of the alcohol and tobacco commission;

or (6) an enforcement officer of the securities division of the office of the secretary of

state. We hold that Officer Smith, an IMPD officer working as a liaison officer at the

school, was a law enforcement officer at the time of K.W.’s arrest. See Harris v. State,

831 N.E.2d 848, 851 (Ind. Ct. App. 2005) (holding IPD officer working off-duty at

Goodwill Industries was a law enforcement officer for purposes of resisting law

enforcement statute), trans. denied.

       The question remains, however, whether the State presented sufficient evidence

that “the officer [was] lawfully engaged in the execution of the officer’s duties.” See I.C.

§ 35-44-3-3 (emphasis added). Officer Smith is a law enforcement officer because he is a

police officer, not because he is a liaison officer for the school. The statute requires that

an officer be lawfully engaged in the execution of his duties as a law enforcement officer

before a conviction for resisting law enforcement will stand. K.W. contends that the

evidence shows that Officer Smith was “not ‘lawfully engaged in the execution’ of the

duties of an IMPD officer when he handcuffed K.W. but was instead engaging in the


                                             4
duties of a school liaison officer, which is not covered by the statutory definition of law

enforcement officer.” Brief of Appellant at 7. We must agree.

       In the context of searches and seizures in a school setting, our courts have

recognized a clear distinction between a search and seizure for the purpose of furthering

“educationally related goals” and for the purpose of a criminal investigation. See T.S. v.

State, 863 N.E.2d 362, 371 (Ind. Ct. App. 2007), trans. denied. In particular, in Myers v.

State, 839 N.E.2d 1154, 1160 (Ind. 2005), cert. denied, 547 U.S. 1148 (2006), our

supreme court reiterated that a reasonableness standard applies where a school official

conducts a search or seizure alone or with only minimal police involvement, but the

ordinary Fourth Amendment standard applies where “outside” police officers initiate or

are predominantly involved in a search and seizure “for police investigative purposes.”

And in T.S., following a search of a student and seizure of marijuana found on his person,

the student was ultimately escorted to a police station by an officer with the Indiana

Public Schools Police working in Broad Ripple High School. In holding that the officer’s

conduct was subject to the reasonableness standard, we observed that the officer was

initially only concerned with a possible violation of school rules and had intended to take

T.S. to the Dean’s office. Thus, we concluded that, at the time of the search and seizure,

the officer had “acted as a school resource officer acting to further educationally related

goals.” T.S., 863 N.E.2d at 371.

       Likewise, in State v. C.D., 947 N.E.2d 1018 (Ind. Ct. App. 2011), a student

suspected of being intoxicated at school was questioned by an assistant principal and an

officer with the Mooresville Police Department employed by the school as a security

officer. The officer concluded that the student was under the influence of marijuana, and
                                            5
the assistant principal searched the student’s backpack and found two Adderall pills

inside.     In addressing the student’s argument that the evidence should have been

suppressed because of violations of his Fifth Amendment rights, we held that no custodial

interrogation occurred to trigger those rights. In particular, we stated:

          We note that in C.D.’s case, unlike in G.J.[ v. State, 716 N.E.2d 475 (Ind.
          Ct. App. 1999)], C.D. was examined by a school security officer in police
          uniform rather than a school administrator. Under the circumstances of this
          case, we conclude that this difference is not significant. [Officer] Richhart
          was not independently investigating the matter. Instead, [Officer] Richhart
          examined C.D. at [Assistant Principal] Vanwanzeele’s request and in
          Vanwanzeele’s presence.        Furthermore, after the examination was
          complete, Vanwanzeele did not immediately ask [Officer] Richhart to take
          C.D. into custody but instead advised C.D. that he would be suspended.
          This evidence indicates that [Officer] Richhart was acting to fulfill an
          educational purpose. Therefore, the fact that [Officer] Richhart, rather than
          Vanwanzeele, examined and questioned C.D. did not transform the
          examination into a custodial interrogation. See T.S. v. State, 863 N.E.2d
          362, 371 (Ind. Ct. App. 2007), trans. denied (determining, in the context of
          a student’s challenge to being seized by a school security officer, that a
          search and seizure by a school security officer is reviewed pursuant to a
          less-stringent standard if the officer was “acting to further educationally
          related goals”).

(Emphases added).

          We conclude that the factors which distinguish between law enforcement officers

investigating crimes and those serving as school security officers promoting a safe school

environment, as set out in Myers, T.S., and C.D., apply here. Officer Smith testified that,

as a liaison officer for Ben Davis High School, his duties included serving “as security

for all staff [and] students, and enforc[ing] some dress code policies and all other rules

and procedures.” Transcript at 2. On August 30, 2011, Officer Smith had observed K.W.

and another student “facing off” in the hallway before a teacher intervened. Id. As

Officer Smith approached K.W., he asked K.W. to turn around, and he “handcuffed him

                                               6
for his safety[.]” Transcript at 3. Officer Smith further testified that that was “a normal

procedure [he] normally do[es]” in such a situation “so neither student would attempt to

strike the other one[.]” Id. at 3, 6.

       The State did not present any evidence that Officer Smith placed K.W. in

handcuffs for purposes of a criminal investigation. Neither did the State allege or present

any evidence that K.W. had engaged in criminal behavior, such as disorderly conduct,

prior to Officer Smith’s attempt to handcuff him. Rather, the evidence shows that Officer

Smith intervened and handcuffed K.W. only for K.W.’s safety, which was his “normal

procedure” as liaison officer. Id. at 3.

       The only reasonable inference to be drawn from the evidence is that Officer Smith

was acting in his capacity as the school’s liaison officer and only with the intent to further

an educational purpose, namely, to control a potential disturbance in the school hallway.

But for the crime of resisting law enforcement to have been committed, Indiana Code 35-

44-3-3 requires that a law enforcement officer be engaged in his duties as a law

enforcement officer at the time of the offender’s forcible resistance. A school liaison

officer is not a law enforcement officer under the statute, and neither is there any

evidence in the record that Officer Smith was acting in his capacity as a law enforcement

officer when he handcuffed K.W. Thus, we hold that K.W.’s adjudication for resisting

law enforcement cannot stand.

       Reversed.

KIRSCH, J., and MAY, J., concur.




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