                                                                                        Jun 25 2015, 10:18 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Suzy St. John                                             Gregory F. Zoeller
Marion County Public Defender                             Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                     Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Lakisha Jordan,                                           June 25, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A04-1410-CR-467
        v.                                                Appeal from the Marion Superior
                                                          Court

State of Indiana,                                         The Honorable Christina Klinemann,
Appellee-Plaintiff.                                       Commissioner

                                                          Cause No. 49F10-1401-CM-5065




Brown, Judge.




Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015                   Page 1 of 20
[1]   Lakisha Jordan appeals her convictions for resisting law enforcement as a class

      A misdemeanor and disorderly conduct as a class B misdemeanor. Jordan

      raises two issues which we consolidate and restate as whether the evidence is

      sufficient to sustain her convictions. We affirm in part, reverse in part, and

      remand.


                                       Facts and Procedural History

[2]   On January 31, 2014, Indianapolis Metropolitan Police Officer Christopher

      Nieves was wearing his police uniform and driving his marked police car in the

      midafternoon. Officer Nieves frequently runs plates “just to check registrations

      and what not” and determined that the vehicle he was following was a Grand

      Am but the license plate was registered to a Buick. Transcript at 8. Officer

      Nieves then activated his lights and initiated a traffic stop of the vehicle driven

      by Jordan in the 3000 block of Michigan. He approached the driver’s side

      window and asked Jordan to roll down her windows because “she had dark

      tinted windows.” Id. Jordan said that the windows were broken, and Officer

      Nieves asked her to open her door so he could speak with her, and Jordan

      opened the door.


[3]   Officer Nieves told Jordan why he stopped her and asked for her license and

      registration. Jordan gave him her license but did not have the registration or

      the title in the vehicle. He then asked her if she had any weapons in the car

      which was standard procedure for him, and Jordan immediately became

      belligerent. Jordan asked “very belligerently” why he asked her if she had a

      weapon, and Officer Nieves told her it was standard procedure. Id. at 10.
      Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015    Page 2 of 20
      Jordan started yelling at him and told him he “was just asking because she was

      Black. Why would she have a weapon, so on and so forth.” Id. Officer Nieves

      asked her to lower her voice or stop yelling, but she continued to yell. Id.


[4]   Officer Nieves collected her information and went back to his vehicle to issue a

      citation. Indianapolis Metropolitan Police Officer Adrian Aurs arrived at the

      scene when Officer Nieves was writing the citations. At some point a tow truck

      was called because Jordan had a suspended license, she did not have a title to

      the vehicle, the license plate did not belong to the vehicle, and “the VIN was

      also expired.” Id. at 22.


[5]   When Officer Nieves returned to Jordan’s vehicle to give her the citations and

      inform her that she could retrieve anything out of the vehicle because he was

      going to impound it, Jordan was “very angry,” yelled at him, and was “talking

      over [him] to the point where [he] could not even describe the citation to her,

      what [he] was giving her, etc.” Id. at 11. Officer Nieves and Officer Aurs asked

      Jordan to stop yelling multiple times. Jordan continued to yell, yelled

      expletives, screamed over Officer Nieves, and called him a motherf----- on

      several occasions. She cursed at the officers, used vulgarities, and said the

      officers “just stopped her because she was Black, and [they] needed religion,”

      and that they “couldn’t handle a Black woman.” Id. at 25. Jordan said: “Ya’ll

      think you run this place, and you’re giving me a citation because I’m Black.”

      Id. at 12. Officer Nieves “could never give her the citation, explain what it was,

      how long she had to pay it, etc.” Id. However, he eventually gave her the

      citations and confirmed that she had her property out of the car.

      Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015   Page 3 of 20
[6]   There was a liquor store in the vicinity and a convenience store on the corner

      directly west of the location and it was “mostly residential right there.” Id. at

      17. “People in the liquor store lot and across the street came out to see what the

      commotion was.” Id. at 26. Jordan was “being very loud and causing a scene

      there.” Id. at 25-26.


[7]   Officer Nieves asked Jordan if she had everything out of the vehicle, and Jordan

      said that she did. She stood five or ten feet from the wrecker driver trying to

      hook up her vehicle and continued to scream and yell expletives at Officer

      Nieves and Officer Aurs. Officer Nieves kept telling her to stop, that she was

      free to leave, that she needed to go, and to be quiet, and Jordan said that she

      did not need to go.


[8]   At some point, after Jordan refused to be quiet, Officer Nieves told her that she

      was under arrest and made a movement toward her to put her in handcuffs, and

      as soon as he stepped toward her, Jordan did “an immediate 180 and turn[ed]

      the other direction.” Id. at 13. She “attempted to run the other direction away

      from” Officer Nieves. Id. She had “a hard time getting some traction on the

      concrete” due to the ice and snow, and Officer Nieves followed behind her and

      “had to basically run after her” and was able to grab her shoulder after about

      four or five steps and pull her into him. Id. at 13, 27. As soon as he grabbed

      her right shoulder, Jordan yanked her shoulder away, twisted and turned, and

      started “firing her arms and pulling her body away from [him] so that [he]

      could not get control of her.” Id. at 14. He pulled her in toward him, and

      swept her legs out from under her to “get her on the ground.” Id. Jordan fell

      Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015   Page 4 of 20
       “face forward on some snow that was right next to the concrete that she was

       running on.” Id. at 14-15. Officer Nieves then tried to put her in handcuffs,

       and she kept trying to slip her wrists out of his hands. Officer Nieves finally

       was able to handcuff her.


[9]    On February 1, 2014, the State charged Jordan with Count I, resisting law

       enforcement as a class A misdemeanor; Count II, resisting law enforcement as

       a class A misdemeanor; and Count III, disorderly conduct as a class B

       misdemeanor.1


[10]   On September 8, 2014, the court held a bench trial. Officers Nieves and Aurs

       testified to the foregoing. During cross-examination, defense counsel asked

       Officer Nieves if Jordan mentioned any other documents that were forgotten in

       the car while it was being raised on the tow truck, and Officer Nieves said:

       “No.” Id. at 16. At one point, Officer Aurs testified that Jordan tried to pull

       her arm away when Officer Nieves was trying to put a handcuff on her, that she

       was trying to jerk away, that she was still yelling, and that he remembered “her

       purse was still caught up in her arms when [Officer Nieves] was cuffing her up.”

       Id. at 27.


[11]   After the close of the State’s evidence, Jordan moved to dismiss all three

       counts. Her counsel argued that Jordan’s statements regarding her race and her




       1
         Count I alleged that Jordan fled from Officer Nieves and/or Officer Aurs, and Count II alleged that she
       resisted, obstructed, or interfered with Officer Nieves and/or Officer Aurs.

       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015                          Page 5 of 20
       perception of police treatment toward her reflected nationwide political

       discourse. After some discussion, the court granted the motion to dismiss as to

       Count I because it did not think Jordan “was able to get very far, nor was there

       enough time for him to like tell her to stop,” and “her actions go more towards

       intentionally, forcibly resisting, not necessarily fleeing.” Id. at 40. The court

       denied the motion with respect to the other counts.


[12]   Jordan testified that she had no interactions with law enforcement before this

       incident, that her tone with the officers was “talking regular” before the officers

       towed her car, that her tone was still “regular” after the officers towed her car

       until she asked to retrieve the bill of sale from the car and one of the officers

       told her it was too late. Id. at 41. She testified that she did not leave the scene

       because the car belonged to her boyfriend and his school was right up the street,

       that she was never told she was under arrest, and that she did not hear any

       statements asking her to stop. When asked what movements she made after the

       officer grabbed her, Jordan answered: “I don’t remember any movements.

       There might have been a tug, but I can’t – I don’t remember there being – I

       don’t even remember anybody tugging at me to where it – because – at me

       being forceful for any reason. So, I don’t recall any, any of that.” Id. at 43.

       When asked to describe the area, Jordan mentioned a gas station, a

       supermarket, and houses.


[13]   After closing argument, the court stated: “I just don’t think it rises to the level of

       political speech. I think it was unreasonable, and she was given the opportunity

       to relax and she just didn’t – couldn’t do it.” Id. at 50. The court found her

       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015     Page 6 of 20
       guilty of Counts II and III, and sentenced her to 365 days for Count II, resisting

       law enforcement as a class A misdemeanor, and 180 days for Count III,

       disorderly conduct as a class B misdemeanor, all suspended except for time

       served.


                                                     Discussion

[14]   The issue is whether the evidence is sufficient to sustain Jordan’s convictions.

       When reviewing the sufficiency of the evidence to support a conviction, we

       must consider only the probative evidence and reasonable inferences supporting

       the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

       witness credibility or reweigh the evidence. Id. We consider conflicting

       evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

       unless “no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270

       (Ind. 2000)). It is not necessary that the evidence overcome every reasonable

       hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference

       may reasonably be drawn from it to support the verdict. Id.


       A. Disorderly Conduct


[15]   Jordan challenges whether the evidence is sufficient to sustain her conviction

       for disorderly conduct, with particular emphasis on whether her speech

       constituted free speech under the Indiana Constitution. The offense of

       disorderly conduct as a class B misdemeanor is governed by Ind. Code § 35-45-

       1-3, which provides that “[a] person who recklessly, knowingly, or intentionally

       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015   Page 7 of 20
       . . . makes unreasonable noise and continues to do so after being asked to stop .

       . . commits disorderly conduct, a Class B misdemeanor.”


[16]   The constitutionality of the disorderly conduct statute is determined on an as

       applied basis under Article 1, section 9 of the Indiana Constitution. Article 1,

       section 9 provides: “No law shall be passed, restraining the free interchange of

       thought and opinion, or restricting the right to speak, write, or print, freely, on

       any subject whatever: but for the abuse of that right, every person shall be

       responsible.” Jordan argues that her speech was “objectively political.”

       Appellant’s Brief at 6. She contends that her speech focused on race and the

       officers’ treatment of her as an African-American woman, that using profanity

       does not vitiate otherwise political expression, and that she criticized police

       conduct. She asserts that she would not know that police may randomly check

       license plates to determine if they match the car and conduct a traffic stop

       because she had no prior involvement with law enforcement, and “having

       committed no other apparent violation, she was not unreasonable to deduce

       that Officer Nieves ‘stopped her because she was Black.’” Id. at 7 (quoting

       Transcript at 26). She concedes that police may ask the driver if there are

       weapons in the car, but asserts that she would not know this because she had no

       prior dealings with law enforcement and could reasonably infer the inquiry was

       an assumption based on her race. She argues that her expression did not cause

       actual discomfort to persons of ordinary sensibilities or interfere with anyone’s

       comfortable enjoyment of privacy, and that her speech did not prevent the

       officers from performing their duties.


       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015    Page 8 of 20
[17]   The State argues Jordan has not met her burden to show that her dual nature

       speech is political and that her conviction should be affirmed under rationality

       review. The State also contends that even if Jordan’s speech is political, Jordan

       abused her right to speak. The State points to the facts that Jordan’s yelling

       caused nearby citizens to stop and watch the incident, Officer Nieves was

       unable to give Jordan the citations or explain them due to her screaming, and

       that she made false and defamatory comments about the alleged racially

       discriminatory motivations of Officer Nieves. The State also asserts that

       “[w]hen a person screams a loud, baseless accusation of racism, it has the

       potential to both injure the individual officer’s reputation in the community in

       which he works and potentially cause others nearby to also enter the encounter,

       creating a chaotic and dangerous situation.” Appellee’s Brief at 13.


[18]   We employ a two-step inquiry in reviewing the constitutionality of an

       application of the disorderly conduct statute. Barnes v. State, 946 N.E.2d 572,

       577 (Ind. 2011), clarified on reh’g, 953 N.E.2d 473. We “determine whether state

       action has restricted a claimant’s expressive activity” and “decide whether the

       restricted activity constituted an ‘abuse’ of the right to speak.” Id. (quoting

       Whittington v. State, 669 N.E.2d 1363, 1367 (Ind. 1996)).


[19]   The first prong may be satisfied based solely on the police restricting a

       claimant’s loud speaking during a police investigation. Id. (citing Whittington,

       669 N.E.2d at 1370). Here, the record reveals that Jordan was arrested for

       disorderly conduct after she screamed and swore at the officers. Jordan has

       established that the State restricted her expressive activity. See Johnson v. State,

       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015     Page 9 of 20
       719 N.E.2d 445, 449 (Ind. Ct. App. 1999) (holding that a person’s conviction

       for making unreasonable noise based on loud speaking during a police

       investigation constitutes state action restricting defendant’s expressive activity).


[20]   We now turn to whether the restricted activity constituted an “abuse” of the

       right to speak. This second prong hinges on whether the restricted expression

       constituted political speech. Barnes, 946 N.E.2d at 577 (citing Whittington, 669

       N.E.2d at 1369-1370). If the claimant demonstrates under an objective

       standard that the impaired expression was political speech, the impairment is

       unconstitutional unless the State demonstrates that the “magnitude of the

       impairment” is slight or that the speech amounted to a public nuisance such

       that it “inflict[ed] ‘particularized harm’ analogous to tortious injury on readily

       identifiable private interests.” Id. (quoting Whittington, 669 N.E.2d at 1369-

       1370 (quoting Price v. State, 622 N.E.2d 954, 964 (Ind. 1993), reh’g denied)). “If

       the expression, viewed in context, is ambiguous, it is not political speech, and

       we evaluate the constitutionality of the impairment under standard rationality

       review.” Id. (quoting Whittington, 669 N.E.2d at 1370). Where expression is

       not political, we must apply rationality review in determining whether the state

       could reasonably have concluded that the defendant’s expressive activity,

       because of its volume, was an “abuse” of the right to speak or was, in other

       words, a threat to peace, safety, and well-being. Whittington, 669 N.E.2d at

       1371.


[21]   Expressive activity is political, for the purposes of the responsibility clause, if its

       point is to comment on government action and includes criticizing the conduct

       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015     Page 10 of 20
       of an official acting under color of law. Id. at 1370. “[W]here an individual’s

       expression focuses on the conduct of a private party—including the speaker

       himself or herself—it is not political.” Id. The burden of proof is on the

       claimant to demonstrate that her expression would have been understood as

       political. Id. If the expression, viewed in context, is ambiguous, a reviewing

       court should find that the claimant has not established that it was political and

       should evaluate the constitutionality of any state-imposed restriction of the

       expression under standard rationality review. Id.


[22]   The State cites Blackman v. State, 868 N.E.2d 579 (Ind. Ct. App. 2007), trans.

       denied, in support of its argument that Jordan’s speech was not political. In

       Blackman, Latoya Blackman was sitting in the back seat of a parked vehicle.

       868 N.E.2d at 582. Blackman’s brother was seated next to her, and her sister

       was in the front seat. Id. Indianapolis Police Officer Brent Brinker approached

       the vehicle and arrested Blackman’s brother on narcotics charges pursuant to an

       ongoing investigation. Id. Officer Brinker advised Officer Emily Perkins that

       he had observed a “substantial amount of forward movement” in the backseat

       of the vehicle and asked Officer Perkins to conduct a pat down search of

       Blackman’s outer clothing. Id. When Officer Perkins asked Blackman to exit

       the vehicle, Blackman became belligerent and loud. Id. at 582-583. Both

       during and after the pat down search, Blackman repeatedly shouted “this is f* *

       *ing bulls* * *,” and “this [is] unconstitutional.” Id. at 583. She also asked,

       “[W]hy are you treating us like animals?” and “Why are you talking down to

       me?” Id. Officer Perkins’ search yielded no evidence, and she instructed

       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015   Page 11 of 20
       Blackman to leave the scene. Id. Blackman refused, shouting that “she had

       every right to be there, that she did not have to leave the scene.” Id. Blackman

       raised her voice increasingly louder, ultimately shouting loudly enough to draw

       a crowd. Id. Despite being asked to leave at least five times, Blackman

       remained at the scene. Id. At one point, she stepped aggressively close to

       Officer Perkins and shouted at her, pointing her finger in Officer Perkins’ face.

       Id. When Officer Brinker turned his back to Blackman, she followed him, still

       shouting and pointing her finger at him. Id. Officer Perkins then handcuffed

       Blackman and advised her she was being arrested for disorderly conduct. Id.


[23]   On appeal, the court observed that some of Latoya Blackman’s outbursts were

       political in nature because she was criticizing the conduct of officers. Id. at 585-

       586. Specifically, Blackman’s comment – “this [is] unconstitutional” – was

       directed to the legality and appropriateness of the pat-down search and the

       repeated orders that she leave the scene of the investigation. Id. at 586. On the

       other hand, Blackman’s comment that “‘she had every right to be there, that she

       did not have to leave the scene,’ constituted expression focused on the conduct

       of a private party, Blackman herself.” Id. This court held that Blackman was

       saying nothing about State action and that “this comment could be construed to

       reflect nothing more than [Blackman’s] opinion that [s]he can do what [s]he

       wants, when [s]he wants.” Id. (quoting Johnson, 719 N.E.2d at 449). The court

       held that “[t]his dual nature of Blackman’s outbursts, coupled with her

       unreasonable noise levels, her refusal to comply with the officers’ instructions,

       and the resulting disruption of the police investigation, lead us to conclude that

       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015   Page 12 of 20
       although Blackman’s expressive activity began as political speech, it did not end

       as such.” Id. The court concluded that Blackman’s speech was ultimately

       ambiguous as to whether she was commenting on her own conduct or that of

       the officers and that her expression was not political and therefore subject to

       rational review. Id.


[24]   The State asserts that Jordan’s statements asking why would she have a

       weapon, that the officers needed religion, and that they “couldn’t handle a

       Black woman,” did not constitute political speech. Transcript at 26. However,

       we cannot say that these statements focused on her conduct as opposed to the

       officers’ conduct. Officer Nieves testified that he kept telling Jordan that she

       needed to go and that Jordan told him that she did not need to go. We view

       this statement as a comment on police authority. Also, unlike the present case,

       Blackman involved a police investigation of narcotics and the defendant in that

       case stepped aggressively close to the officer and pointed her finger in the

       officer’s face. Under the circumstances, we conclude that Jordan’s overall

       complaint and the aim or focus of her statements was to criticize the actions of

       the police, and thus her speech was political. See Price, 622 N.E.2d at 957, 961

       (holding that the defendant’s overall complaint which included her statement

       that she had not done anything after being threatened with arrest constituted

       political speech); Dallaly v. State, 916 N.E.2d 945, 953 (Ind. Ct. App. 2009)

       (concluding that the aim or focus of the defendant’s expressive activity was to

       criticize the actions of the police officers and constituted political expression);

       U.M. v. State, 827 N.E.2d 1190, 1193 (Ind. Ct. App. 2005) (holding that the


       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015    Page 13 of 20
       defendant’s speech in regard to his companion’s inability to hold up his arms

       was an expression regarding the legality and appropriateness of police conduct

       toward his companion); Johnson v. State, 747 N.E.2d 623, 630-631 (Ind. Ct.

       App. 2001) (holding that the defendant criticized the conduct of an official

       acting under color of law and that this speech was protected political speech).


[25]   As noted, if the claimant demonstrates under an objective standard that the

       impaired expression was political speech, the impairment is unconstitutional

       unless the State demonstrates that the “magnitude of the impairment” is slight

       or that the speech amounted to a public nuisance such that it “inflict[ed]

       ‘particularized harm’ analogous to tortious injury on readily identifiable private

       interests.” Barnes, 946 N.E.2d at 577 (quoting Whittington, 669 N.E.2d at 1369-

       1370 (quoting Price, 622 N.E.2d at 964)). We cannot say that the State

       demonstrated that the magnitude of the impairment was slight. Nor can we say

       that the harm suffered by the people in the liquor store lot and across the street

       rose above the level of a fleeting annoyance or that the State demonstrated that

       the speech amounted to a public nuisance such that it inflicted particularized

       harm analogous to tortious injury on readily identifiable private interests.

       Accordingly, we conclude that Jordan may not be punished, consistent with the

       Indiana Constitution, for her particular speech. See Price, 622 N.E.2d at 964-

       965.




       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015   Page 14 of 20
       B. Resisting Law Enforcement


[26]   Jordan also challenges whether the evidence was sufficient to convict her of

       resisting law enforcement as a class A misdemeanor. Initially, we observe that

       “in Indiana the general rule 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.’” Johnson, 747 N.E.2d at 632 (quoting Casselman

       v. State, 472 N.E.2d 1310, 1315 (Ind. Ct. App. 1985) (quoting Williams v. State,

       160 Ind. App. 294, 311 N.E.2d 619, 621 (1974))).


[27]   The offense of resisting law enforcement as a class A misdemeanor is governed

       by Ind. Code § 35-44.1-3-1, which provides that “[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 . . . .” Thus, to convict Jordan of resisting law

       enforcement as a class A misdemeanor, the State needed to prove that she

       knowingly or intentionally forcibly resisted, obstructed, or interfered with

       Officer Nieves and/or Officer Aurs while they were lawfully engaged in the

       execution of their duties.


[28]   Jordan asserts that her actions of turning away from the encounter and leaning

       or pulling away from Officer Nieves’s grasp showed no force. She contends

       that the most reasonable inference from the evidence is that she did not comply


       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015    Page 15 of 20
       with handcuffing at first because her purse was tangled in her arms. The State

       argues that the evidence is sufficient and that the evidence most favorable to the

       verdict shows that Jordan “‘tried to jerk away,’ ‘fir[ed] her arms and pull[ed]

       her body away . . . so that [Officer Nieves] could not get control of her,’ moved

       her arms and wrists to avoid being handcuffed, and ‘tr[ied] to jerk away.’”

       Appellee’s Brief at 15.


[29]   The Indiana Supreme Court has held that “[s]uch a seemingly simple statute . .

       . has proven to be complex and nuanced in its application.” Walker v. State, 998

       N.E.2d 724, 726 (Ind. 2013). In Spangler v. State, 607 N.E.2d 720, 722-723 (Ind.

       1993), the Indiana Supreme Court held that the word “forcibly” is an essential

       element of the crime and modifies the entire string of verbs—resists, obstructs,

       or interferes—such that the State must show forcible resistance, forcible

       obstruction, or forcible interference. The Court also held that the word meant

       “something more than mere action.” Spangler, 607 N.E.2d at 724. “[O]ne

       ‘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.”

       Id. at 723. “[A]ny action to resist must be done with force in order to violate

       this statute. It is error as a matter of law to conclude that ‘forcibly resists’

       includes all actions that are not passive.” Id. at 724.


[30]   “But even so, ‘the statute does not demand complete passivity.’” Walker, 998

       N.E.2d at 727 (quoting K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013)). In

       Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009), the Court clarified that “[t]he

       force involved need not rise to the level of mayhem.” “In fact, even a very

       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015     Page 16 of 20
       ‘modest level of resistance’ might support the offense.” Walker, 998 N.E.2d at

       727 (quoting Graham, 903 N.E.2d at 966) (“even ‘stiffening’ of one’s arms when

       an officer grabs hold to position them for cuffing would suffice”)). The Indiana

       Supreme Court held:

               So in summary, not every passive—or even active—response to a
               police officer constitutes the offense of resisting law enforcement, even
               when that response compels the officer to use force. Instead, a person
               “forcibly” resists, obstructs, or interferes with a police officer when he
               or she uses strong, powerful, violent means to impede an officer in the
               lawful execution of his or her duties. But this should not be
               understood as requiring an overwhelming or extreme level of force.
               The element may be satisfied with even a modest exertion of strength,
               power, or violence. Moreover, the statute does not require
               commission of a battery on the officer or actual physical contact—
               whether initiated by the officer or the defendant. It also contemplates
               punishment for the active threat of such strength, power, or violence
               when that threat impedes the officer’s ability to lawfully execute his or
               her duties.


       Id.


[31]   In Berberena v. State, which is cited by Jordan, a police officer “gave several loud

       verbal commands” for Edwin Berberena to stop. 914 N.E.2d 780, 780-781

       (Ind. Ct. App. 2009), trans. denied. The police officer ordered Berberena to put

       his hands behind his back, but Berberena did not comply. Id. at 781. The

       officer then “had to forcefully place [Berberena] against the wall of the building.

       [Berberena’s] chest was facing the building, and [the officer] had to struggle

       with him to grab his hands and place them in handcuffs.” Id. The trial court

       found Berberena guilty of resisting law enforcement. Id. On appeal, the court


       Court of Appeals of Indiana | Opinion 49A04-1410-CR-467 | June 25, 2015         Page 17 of 20
       held that the officer’s testimony “that he struggled to place the handcuffs on

       Berberena’s wrists [was] ambiguous.” Id. at 782. The court also observed that

       the officer “did not testify, and there [was] no evidence, that Berberena stiffened

       his arms or otherwise ‘made threatening or violent actions’ to contribute to the

       struggle.” Id. (quoting Ajabu v. State, 704 N.E.2d 494, 496 (Ind. Ct. App.

       1998)). Lastly, the court observed that the officer “could not remember what

       Berberena was doing with his hands, and the struggle did not last very long.”

       Id. The court concluded that the evidence was insufficient to support

       Berberena’s conviction. Id. at 783.


[32]   Jordan also cites Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009), trans.

       denied. In that case, Curtis Colvin kept his hands in his pockets during a

       struggle with officers and did not comply with officers’ commands, and the

       officers had to use force to execute the arrest. 916 N.E.2d at 309. The State did

       not present any evidence that Colvin used force or made threatening or violent

       actions to contribute to the struggle with the officers. Id. The court held that

       the evidence did not support a reasonable inference that Colvin did more than

       passively resist the officers. Id.


[33]   Here, unlike in Berberena and Colvin, we cannot say that the State did not

       present any evidence that Jordan used force. After Officer Nieves told Jordan

       that she was under arrest and made a movement toward her to put her in

       handcuffs, Jordan did “an immediate 180,” and attempted to run the other

       direction. Transcript at 13. Officer Nieves followed Jordan, and as soon as he

       grabbed her right shoulder, Jordan yanked her shoulder away, twisted and

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       turned, and started “firing her arms and pulling her body away from [him] so

       that [he] could not get control of her.” Id. at 14. While Officer Nieves tried to

       place handcuffs on Jordan, she kept trying to slip her wrists out of his hands.

       Officer Aurs testified that when Officer Nieves grabbed her to put her in

       handcuffs, Jordan tried to “jerk away.” Id. at 27.


[34]   Based upon the record, we conclude that there exists evidence of probative

       value from which a reasonable trier of fact could find that Jordan exercised at

       least a modest exertion of strength, power, or violence that impeded the officer

       in the lawful execution of his duties, and that she was guilty beyond a

       reasonable doubt of resisting law enforcement as a class A misdemeanor. See

       Lopez v. State, 926 N.E.2d 1090, 1093-1094 (Ind. Ct. App. 2010) (holding that

       the evidence was sufficient to prove that the defendant acted with the requisite

       force in resisting the officers in the execution of their duties where the defendant

       refused to stand and “started to pull away” when the officers tried to physically

       pull him up from the couch and where the officers were unable to pull his arms

       out from under the defendant), trans. denied; Johnson v. State, 833 N.E.2d 516,

       518-519 (Ind. Ct. App. 2005) (holding that the defendant forcibly resisted police

       officers by turning away and pushing away with his shoulders as they attempted

       to search him, refusing to enter the transport vehicle, and stiffening up, thus

       requiring the officers to exert force to place him inside the transport vehicle).


                                                     Conclusion

[35]   For the foregoing reasons, we affirm Jordan’s conviction for resisting law

       enforcement as a class A misdemeanor, reverse her conviction for disorderly
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       conduct as a class B misdemeanor, and remand for entry of an acquittal on the

       disorderly conduct count.


[36]   Affirmed in part, reversed in part, and remanded.


       Crone, J., and Pyle, J., concur.




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