 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before                                         Aug 08 2014, 9:05 am
 any court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                                     ATTORNEYS FOR APPELLEE:

DAVID BECSEY                                                GREGORY F. ZOELLER
Zeigler Cohen & Koch                                        Attorney General of Indiana
Indianapolis, Indiana
                                                            CYNTHIA L. PLOUGHE
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

R.C.,                                                )
                                                     )
        Appellant-Defendant,                         )
                                                     )
               vs.                                   )      No. 49A05-1401-JV-024
                                                     )
STATE OF INDIANA,                                    )
                                                     )
        Appellee-Plaintiff.                          )


        APPEAL FROM THE MARION SUPERIOR COURT, JUVENILE DIVISION
                     The Honorable Marilyn A. Moores, Judge
                         Cause No. 49D09-1307-JD-1920


                                           August 8, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
        R.C. was adjudicated a delinquent child for committing an act that would

constitute Resisting Law Enforcement1 as a class A misdemeanor if committed by an

adult. R.C. presents one issue for our review: Did the State present sufficient evidence

to support the true finding?

       We affirm.

       The facts favorable to the adjudication follow. R.C. was born on August 29, 1996.

On July 5, 2013, just after midnight, R.C. was walking northbound on Meridian Street.

Officer Christopher Faulds and other officers with the Indianapolis Metropolitan Police

Department encountered R.C. near the intersection of Meridian and New York Streets.

R.C. was with a group of about nine other individuals, some of whom appeared to be

juveniles. Officer Faulds’s attention was drawn to the group when, from a block away,

he heard loud voices and some noise coming from the group. Officer Faulds specifically

identified R.C. as one of the individuals being loud. Officer Faulds also noted that the

group was in the vicinity of “several apartment complexes.” Transcript at 9.

       Officer Faulds and the other officers approached the group and asked them “to

stop the noise.” Id. The group did not respond to the request, and R.C. “just started to

walk away, ignoring and just kept going on.” Id. at 10. Officer Faulds then directed the

entire group to “stop.” Id. After a second order to stop, some of the individuals in the

group complied. R.C., however, continued walking. Officer Faulds attempted to stop

R.C. by reaching out and taking ahold of R.C.’s right upper arm. R.C. “jerked his arm


1
 Ind. Code Ann. § 35-44.1-3-1(a) (West, Westlaw current with all 2014 Public Laws of the 2014 Second
Regular Session and Second Regular Technical Session of the 118th General Assembly).


                                                 2
out of [Officer Faulds’s] hand and pushed [Officer Faulds] back and kept then kept [sic]

walking.” Id. at 11. The contact was “hard enough” that Officer Faulds nearly lost his

balance. Id.

       The other officers then attempted to place R.C. in handcuffs, at which point R.C.

started to kick and “flail his arms about.” Id. The officers had to “take [R.C.] to the

ground to get his limbs under control.” Id. Once on the ground, R.C. continued to kick

at the officers and also began spitting at them. The officers were eventually able to place

R.C. in handcuffs, at which point R.C. sat up and stopped struggling.

       On July 8, 2013, the State filed a delinquency petition alleging that R.C. was a

delinquent child for committing an act that would constitute class A misdemeanor

resisting law enforcement if committed by an adult. On November 13, 2014, the juvenile

court held a fact-finding hearing and adjudicated R.C. a delinquent child. A disposition

hearing was held on December 23, 2013. The juvenile court placed R.C. on probation

with suspended commitment to the Department of Correction.

       On appeal, R.C. argues that the evidence is insufficient to support his adjudication.

Our standard of review in this regard is well settled.

       When the State seeks to have a juvenile adjudicated to be a delinquent for
       committing an act that would be a crime if committed by an adult, the State
       must prove every element of that crime beyond a reasonable doubt. Upon
       review, we apply the same sufficiency standard used in criminal cases.
       When reviewing the sufficiency of evidence, we do not reweigh the
       evidence or judge the credibility of witnesses. Instead we look to the
       evidence of probative value and the reasonable inferences that support the
       determination.




                                              3
A.E.B. v. State, 756 N.E.2d 536, 540 (Ind. Ct. App. 2001) (citations omitted). Further,

the uncorroborated testimony of a single witness can provide sufficient evidence.

See McCarthy v. State, 749 N.E.2d 528 (Ind. 2001).

        Here, the delinquency petition provided that R.C. did “knowingly or intentionally

forcibly resist, obstruct or interfere with a law enforcement officer, that is: Police officer

Christopher Faulds, Indianapolis Metropolitan Police Department, who was lawfully

engaged in the execution of his duties as an officer.”2 Appellant’s Appendix at 18. One

“forcibly resists” law enforcement when “strong, powerful, violent means are used to

evade a law enforcement official’s rightful exercise of duties.” Stansberry v. State, 954

N.E.2d 507 (Ind. Ct. App. 2011) (quoting Spangler v. State, 607 N.E.2d 720, 723 (Ind.

Ct. App. 1993)). The force necessary to sustain a conviction, however, need not rise to

the level of mayhem, and our Supreme Court has acknowledged that a “modest level

of resistance” may suffice.           See Graham v. State, 903 N.E.2d 963, 965 (Ind.

2009) (citing Johnson v. State, 833 N.E.2d 516, 517 (Ind. Ct. App. 2005)).

        R.C. contends that the evidence is insufficient to support his adjudication because

the officers were not legally engaged in the performance of their duties when, without

explanation or warning, they grabbed him from behind, took him to the ground, and

placed him in handcuffs. R.C. maintains that under the circumstances, his response to the

conduct of the officers was reasonable.


2
  See I.C. § 35-44.1-3-1(a)(1) (“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.”).


                                                     4
      We first consider whether Officer Faulds and the other IMPD officers were

“lawfully engaged” in the execution of their duties as police officers. It is well settled

that “police may, without a warrant or probable cause, briefly detain an individual for

investigatory purposes if, based on specific and articulable facts, the officer has a

reasonable suspicion that criminal activity ‘may be afoot.’” State v. Calmes, 894 N.E.2d

199, 202 (Ind. Ct. App. 2008) (citation omitted).

      Here, the officers observed a group of individuals, some of whom appeared to be

teenagers, talking loudly and making noise as they walked along Meridian Street in

downtown Indianapolis shortly after midnight on Friday, July 5, 2013. The officers had

reasonable suspicion to believe that R.C. and others within the group were out past

curfew in violation of Ind. Code Ann. § 31-37-3-2 (West, Westlaw current with all 2014

Public Laws of the 2014 Second Regular Session and Second Regular Technical Session

of the 118th General Assembly). That statute provides that it is a curfew violation for a

child between fifteen and seventeen years of age to be in a public place after 11 p.m. on

Sunday, Monday, Tuesday, Wednesday, or Thursday or before 5 a.m. on Monday,

Tuesday, Wednesday, Thursday, or Friday, so long as the child does not have a legal

defense. Being before 5 a.m. on a Friday morning, the officers therefore saw R.C.

committing a delinquent act and had authority to stop him. See I.C. § 31-37-3-2 (West,

Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and

Second Regular Technical Session of the 118th General Assembly) (stating that a child

who commits a curfew violation commits a delinquent act).



                                            5
       Officer Faulds also testified that the group caught his and the other officers’

attention by being loud and talking with raised voices in an area of downtown

Indianapolis where there were apartments.         The officers therefore had reasonable

suspicion to believe that R.C. was committing an act that would be class B misdemeanor

disorderly conduct if committed by an adult. To be sure, the officers observed R.C.

making “unreasonable noise and continu[ing] to do so after being asked to stop.” See

Ind. Code Ann. § 35-45-1-3 (West, Westlaw current through 2012 Second Regular

Session).

       The officers were lawfully engaged in their execution of their duties as police

officers when they were patrolling streets in downtown Indianapolis and came upon a

group of individuals who the officers believed to be in violation of curfew and who were

being unreasonably loud for the location and time. Either of these offenses provided the

officers with authority to stop R.C. and inquire into their suspicions about his activity.

R.C.’s argument that he was grabbed from behind without explanation or warning, taken

to the ground, and placed him in handcuffs is merely an invitation for this could to

reweigh the evidence and adopt his version of events. This we will not do.

       R.C. also argues that his conduct in response to the officers’ actions was

reasonable under the circumstances. While the encounter with R.C. was not initiated in

order to effect an arrest, we find the following helpful. The general rule in Indiana is that

“a private citizen may not use force in resisting a peaceful arrest by an individual who he

knows, or has reason to know, is a police officer performing his duties regardless of

whether the arrest in question is lawful or unlawful.” Shoultz v. State, 735 N.E.2d 818,

                                             6
823 (Ind. Ct. App. 818, 823 (Ind. Ct. App. 2000) (quoting Casselman v. State, 472

N.E.2d 1310, 1315 (Ind. Ct. App. 1985)), trans. denied. When, however, an officer uses

unconstitutionally excessive force in effecting an arrest, that officer is no longer lawfully

engaged in the execution of his or her duty. Shoultz v. State, 735 N.E.2d 818.

       On this point, we note that even after being ordered to stop a second time, R.C.

continued walking. Officer Faulds then reached out and touched R.C. on his shoulder, at

which point, R.C. pushed Officer Faulds with enough force that Officer Faulds nearly lost

his balance. Nothing about Officer Faulds’s conduct warranted being pushed by R.C. in

such manner. The other officers who witnessed the hostile reaction by R.C. attempted to

take control of the situation, and R.C. immediately responded by kicking and spitting at

the officers and flailing his arms.

       Contrary to R.C.’s claim, the circumstances of this case are not akin to the

situation presented in Shoultz, wherein the defendant was only verbally aggressive with

the police officer and did not physically and with force interfere with the officer’s

investigation. Further, in Shoultz, the officer had “no basis” for concluding that Shoultz

had committed any crime before using considerable force against him. Id. at 824. Here,

Officer Faulds witnessed R.C. commit two delinquent acts. When approached, R.C.

physically pushed Officer Faulds such that he nearly lost his balance.

       The situation did not escalate and the officers did not employ force on R.C. until

after R.C. acted in a forceful manner. Officer Faulds approached the group and asked

them to quiet down. The group did not comply, so Officer Faulds ordered the group to

stop. R.C. ignored this order as well, and when Officer Faulds attempted to stop him,

                                             7
R.C. responded by forcefully pushing Officer Faulds and then he continued to ignore the

order to stop by walking away.            R.C.’s behavior was not reasonable under the

circumstances.

       R.C. asserts that the force used against him was excessive.

       Claims that law enforcement officers have used excessive force in the
       course of an arrest of a free citizen are analyzed under the Fourth
       Amendment to the United States Constitution and its “reasonableness”
       standard. Graham v. Connor, 490 U.S. 386, 395, 109 S.Ct. 1865, 1871,
       104 L.Ed.2d 443 (1989). Because the Fourth Amendment test of
       reasonableness is not capable of precise definition or mechanical
       application, its proper application requires careful attention to the facts and
       circumstances of each particular case, including the severity of the crime at
       issue, whether the suspect poses an immediate threat to the safety of the
       officers or others, and whether he is actively resisting arrest or attempting
       to evade arrest by flight. 490 U.S. at 396, 109 S.Ct. at 1872. The
       “reasonableness” of a particular use of force must be judged from the
       perspective of a reasonable officer on the scene, rather than with the 20-
       20 vision of hindsight. Id. However, the “reasonableness” inquiry in an
       excessive force case is an objective one: the question is whether the
       officers’ actions are “objectively reasonable” in light of the facts and
       circumstances confronting them, without regard to their underlying intent
       or motivation. 490 U.S. at 396–97, 109 S.Ct. at 1872.

Shoultz v. State, 735 N.E.2d at 823-24.

       The underlying offenses – a curfew violation and disorderly conduct – were

relatively innocuous.    Nevertheless, it was after midnight when the police officers

approached a group of approximately ten individuals who were being loud and refusing

to comply with orders to quiet down and ultimately, to stop. The reaction of R.C. was to

immediately use physical force against the officer by shoving him. The officers, being

outnumbered, reasonably attempted to take control of R.C. and the situation. R.C. only

escalated the situation by kicking, flailing his arms, and spitting on the officers. There is


                                              8
nothing in the facts as presented by the State that indicates the officers used excessive

force under the circumstances.

       In sum, the evidence presented by the State was sufficient to prove beyond a

reasonable doubt that R.C. forcibly resisted, obstructed, or interfered with a law

enforcement officer while the officer was lawfully engaged in the execution of the

officer’s duties.

       Judgment affirmed.

       MATHIAS, J., and PYLE, J., concur.




                                           9
