MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      Jul 31 2018, 9:16 am
regarded as precedent or cited before any
court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark F. James                                            Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Evan Matthew Comer
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Duane Lamar Herron,                                      July 31, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1712-CR-2798
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         71D03-1708-F6-708, 71D03-1708-
                                                         F6-710, 71D03-1501-F6-17



Altice, Judge.


                                          Case Summary


Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2798 | July 31, 2018           Page 1 of 8
[1]   Duane Lamar Herron appeals his convictions, under separate causes, for two

      counts of Level 6 felony invasion of privacy and one count of Class A

      misdemeanor resisting law enforcement. He argues that the evidence was

      insufficient to support each conviction.


[2]   We affirm.


                                          Facts & Procedural History


[3]   On February 21, 2017, Margaret Martinez obtained a protective order against

      Herron, her boyfriend of several months. A copy of the protective order was

      left on the door of Herron’s mother’s home two days later.1 Herron went to

      Martinez’s home several days later, and she called the police. When the police

      arrived, Herron denied knowledge of the protective order. Herron was arrested

      and charged with invasion of privacy. Following a bench trial, at which Herron

      represented himself and the protective order was admitted into evidence,

      Herron was found not guilty on April 5, 2017.


[4]   Thereafter, Herron discussed the protective order with Martinez on more than

      one occasion, as the two continued to see each other. Martinez filled out

      dismissal paperwork for the protective order at Herron’s direction and gave it to

      him to file with the court, but Herron never did so. The protective order

      remains active and is not set to expire until February 21, 2019.




      1
          Herron did not have his own residence and often stayed with his mother and received mail at her home.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2798 | July 31, 2018              Page 2 of 8
[5]   On July 25, 2017, Herron went to the fast food restaurant where Martinez was

      working. He was upset because Martinez had not been responding to his text

      messages. To calm him down and not make a scene, Martinez sat with him for

      a bit and then went outside with him. They began arguing outside. When

      Martinez turned to walk away, Herron grabbed her cellphone from her back

      pocket and fled on foot. The police were called to the scene, but Herron could

      not be located.


[6]   Two days later, Herron called Martinez and accused her of being with another

      man. He then showed up on her front porch. Herron threatened Martinez with

      violence and death and indicated that he would rather go back to prison than to

      let her go. Martinez refused to let him in, calling the police instead. Martinez

      informed dispatch that Herron might be armed with a knife.


[7]   Officers Shawn Fredenburg and Ryan O’Neill of the South Bend Police

      Department arrived on the scene. As they walked up to the residence in full

      police uniform, Martinez came onto the porch, and Herron demanded to know

      why the officers were there. Herron refused requests from the officers to come

      off the porch. The officers then went onto the porch to arrest Herron for

      violating the protective order.


[8]   When Herron refused to turn around to be handcuffed, each officer grabbed one

      of his arms. Herron then “started to try to pull away and thrash back and

      forth”. Transcript Vol. 2 at 132. The officers attempted to gain control of

      Herron for about thirty seconds in “just kind of [a] furious back and forth” as


      Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2798 | July 31, 2018   Page 3 of 8
       Herron tried to get away. Id. Officer Fredenburg then issued a knee strike to

       Herron, which proved ineffective. After an additional struggle, Officer

       Fredenburg punched Herron in the face and was able to gain control over him

       with Herron stating, “I’m done”. Id. at 119. A third officer who had just

       arrived on the scene was then able to place handcuffs on him.


[9]    On August 2, 2017, the State charged Herron under cause number 71D03-1798-

       F6-708 (F6-708) for the events of July 27, 2017: Class A misdemeanor invasion

       of privacy (Count I); Level 6 felony intimidation (Count II); Class A

       misdemeanor resisting law enforcement (Count III); and Level 6 felony

       invasion of privacy with a prior conviction for invasion of privacy 2 (Count IV).

       On that same date, the State charged Herron under cause number 71D03-1708-

       F6-710 (F6-710) regarding the events of July 25, 2017: Class A misdemeanor

       invasion of privacy (Count I); Class A misdemeanor conversion (Count II); and

       Level 6 felony invasion of privacy with a prior conviction for invasion of

       privacy (Count III).


[10]   In both cases, Herron waived his right to a jury trial and chose to represent

       himself. A bench trial was conducted in each cause on September 29, 2017,

       with F6-708 being heard in the morning and F6-710 being heard in the

       afternoon. The trial court took both matters under advisement and, thereafter,

       found Herron guilty as charged in both causes. At the joint sentencing hearing



       2
        Herron has a prior conviction under cause number 71D08-1507-F6-480 for three counts of Class A
       misdemeanor invasion of privacy. He was sentenced in that case on January 11, 2016.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2798 | July 31, 2018         Page 4 of 8
       on November 9, 2017, the trial court entered judgments of conviction on

       Counts II, III, and IV in F6-708 and Counts II and III in F6-710. The court

       imposed an aggregate sentence of sixty months in prison and recommended

       purposeful incarceration.


[11]   Herron appeals, arguing that the evidence was insufficient with respect to his

       convictions for invasion of privacy and resisting law enforcement. He does not

       challenge his convictions for intimidation and conversion on appeal.


                                           Discussion & Decision


[12]   When we consider a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,

       51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and

       reasonable inferences supporting the conviction. Id. We will affirm if there is

       probative evidence from which a reasonable trier of fact could have found the

       defendant guilty beyond a reasonable doubt. Id.


[13]   With respect to the convictions for invasion of privacy, Herron argues that he

       did not knowingly violate the protective order because he lacked knowledge of

       its existence. Specifically, he asserts that he was not served with notice of the

       protective order and that Martinez allowed him to be around her on many

       occasions despite the protective order.


[14]   The State was required to prove beyond a reasonable doubt that Herron

       knowingly or intentionally violated the protective order. See Ind. Code § 35-46-


       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2798 | July 31, 2018   Page 5 of 8
       1-15.1. The State, however, was not required to establish that Herron was

       actually served with the protective order. See Joslyn v. State, 942 N.E.2d 809,

       811-12 (Ind. 2011). All that was required was evidence that Herron had actual

       knowledge of the order and adequate indication of its terms. See Tharp v. State,

       942 N.E.2d 814, 818 (Ind. 2011).


[15]   The evidence clearly establishes that Herron had actual knowledge of the

       protective order and its terms when he had contact with Martinez on July 25

       and 27, 2017. Indeed, only months earlier he had been arrested, charged, and

       tried on allegations that he had violated the very same protective order. Herron

       represented himself at that trial. Further, Herron had multiple conversations

       with Martinez regarding the protective order and his desire that she have it

       dismissed. He even went so far as to have her fill out a form seeking dismissal

       of the protective order. He took that form but never filed it with the court.

       Herron’s self-serving claims that he was not aware that the protective order was

       in effect lack merit. Further, Martinez’s alleged willingness to allow Herron to

       be around her despite the protective order is of no moment. See Smith v. State,

       999 N.E.2d 914, 918 (Ind. Ct. App. 2013) (“when determining whether

       [defendant] committed the offense of invasion of privacy, we do not consider

       whether [victim] knowingly ignored the protective order but, rather, whether

       [defendant] knowingly violated the order”), trans. denied; see also Ind. Code § 34-

       26-5-11 (“If a respondent is excluded from the residence of a petitioner or

       ordered to stay away from a petitioner, an invitation by the petitioner to do so

       does not waive or nullify an order for protection.”).


       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2798 | July 31, 2018   Page 6 of 8
[16]   Turning to the conviction for resisting law enforcement, Herron argues that the

       State failed to establish that he forcibly resisted the officers.3 He asserts –

       wrongly – that Officers Fredenburg and O’Neill testified he was “only pulling

       his arms away.” Appellant’s Brief at 9.


[17]   Our Supreme Court has summarized the “forcibly” element as follows:


                [N]ot 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.


       Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013). See also Graham v. State, 903

       N.E.2d 963, 965 (Ind. 2009) (“force involved need not rise to the level of

       mayhem”; “even ‘stiffening’ of one’s arms when an officer grabs hold to

       position them for cuffing would suffice”).




       3
        Ind. Code § 35-44.1-3-1(a)(1) provides that a person commits resisting law enforcement when they
       knowingly or intentionally forcibly resist, obstruct, or interfere with a law enforcement officer or person
       assisting the officer while the officer is lawfully engaged in the execution of the officer’s duties.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2798 | July 31, 2018                 Page 7 of 8
[18]   The State presented ample evidence that Herron forcibly resisted attempts by

       Officers Fredenburg and O’Neill to arrest him. He not only pulled away but

       “thrash[ed] back and forth” and tried to get away by engaging in a “furious

       back and forth” with the officers. Transcript Vol. 2 at 132. Herron continued to

       struggle with the officers even after Officer Fredenburg issued a knee strike to

       try to take Herron to the ground. It took a punch in the face and the arrival of a

       third officer in order to subdue Herron. In sum, the evidence shows that

       Herron used strong, powerful means to impede the officers’ in their lawful

       execution of their duties.


[19]   Judgments affirmed.


       Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1712-CR-2798 | July 31, 2018   Page 8 of 8
