FOR PUBLICATION


ATTORNEY FOR APPELLANT:                        ATTORNEYS FOR APPELLEE:

SUZY ST. JOHN                                  GREGORY F. ZOELLER
Indianapolis, Indiana                          Attorney General of Indiana

                                               AARON J. SPOLARICH
                                               Deputy Attorney General
                                               Indianapolis, Indiana

                                                                             Jan 30 2013, 8:50 am
                               IN THE
                    COURT OF APPEALS OF INDIANA

DEMETRIUS WALKER,                              )
                                               )
       Appellant-Defendant,                    )
                                               )
              vs.                              )       No. 49A02-1205-CR-380
                                               )
STATE OF INDIANA,                              )
                                               )
       Appellee-Plaintiff.                     )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Linda Brown, Judge
                           Cause No. 49F10-1203-CM-19943


                                    January 30, 2013

                              OPINION – FOR PUBLICATION

RILEY, Judge
                                 STATEMENT OF THE CASE

        Appellant-Defendant, Demetrius Walker (Walker), appeals his conviction for

resisting law enforcement, a Class A misdemeanor, Ind. Code § 35-44.1-3-1.1

        We affirm.

                                               ISSUE

        Walker raises one issue on appeal which we restate as:                   Whether the State

presented sufficient evidence beyond a reasonable doubt to sustain his conviction.

                           FACTS AND PROCEDURAL HISTORY

        At approximately 12:25 a.m. on March 25, 2012, Officer Jason Ehret (Officer

Ehret) of the Indianapolis Metropolitan Police Department was dispatched to a fight in

progress. At the intersection of South Sheffield Avenue and West Ray Street, the Officer

was flagged down by a group of twenty-five to thirty people. He noticed two men, later

identified as Cory Finch (Finch) and Walker, standing at the intersection, “[y]elling and

cussing back and forth at each other.” (Transcript p. 8). At the time the Officer arrived,

Walker appeared to walk away from Finch. However, Finch “was yelling towards”

Walker and Walker then started walking back to Finch. (Tr. p. 8). Officer Ehret ordered

the men to stay separate and then lay flat on the ground. Walker and Finch ignored the

order and continued to move towards each other.                  Finch “threw a punch towards

[Walker][;]” Walker retaliated and “they threw a couple more” for about ten to fifteen


1
 At the time of Walker’s offense, resisting law enforcement was codified at Ind. Code § 35-44-3-3.
However, effective July 1, 2012, Public Law 126-2012 repealed that section and codified the offense
under I.C. § 35-44.1-3-1. The Legislature did not alter the language or the requirements of the offense.


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seconds. (Tr. p. 9). Officer Ehret repeatedly ordered the men to stop fighting and to lay

on the ground. Finally, the Officer gave them a final warning, announcing that if they

refused to comply they would be tased. Once the Officer said “tased,” Finch dropped to

the ground with his arms out flat. (Tr. p. 11). Walker turned towards the Officer “with

his clinched fists, and kind of stared at [the Officer] for a second, and then walk[ed]

towards [him]. (Tr. p. 11). The Officer repeated his instruction to drop to the ground, but

Walker continued to walk towards him with his “arms and fists [] clinched in an

aggressive manner.” (Tr. p. 11). When Walker was about three to four feet away from

the Officer, the Officer tased Walker. Walker fell to the ground and submitted to being

handcuffed without incident.

       On March 25, 2012, the State filed an Information charging Walker with Count I,

resisting law enforcement, a Class A misdemeanor, I.C. § 35-44.1-3-1 and Count II,

disorderly conduct, a Class B misdemeanor, I.C.§ 35-45-1-3. On April 18, 2012, the trial

court conducted a bench trial. At the close of the State’s evidence, Walker moved for

involuntary dismissal of both Counts. The trial court denied the motion as to Count I but

granted the motion as to Count II. After Walker rested, the trial court found him guilty of

Count I and sentenced Walker to ninety days in the Marion County Jail.

       Walker now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

       Walker contends that the State failed to present sufficient evidence to sustain his

conviction for resisting law enforcement. When reviewing a sufficiency of the evidence

claim, we neither reweigh the evidence nor assess the credibility of the witnesses.


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Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. denied. We may

look only to the evidence most favorable to the judgment and reasonable inferences

therefrom and will affirm if we conclude that evidence of probative value exists such that

a reasonable fact finder could find the elements of the underlying crime proven beyond a

reasonable doubt. Id.

       To convict Walker of resisting law enforcement as a Class A misdemeanor, the

State was required to establish beyond a reasonable doubt that Walker knowingly or

intentionally forcibly resisted, obstructed, or interfered 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. See I.C. § 35-44.1-3-1. Focusing on the “forcibly resisting” element of

the charge, Walker argues that because he did not physically resist the Officer but merely

disobeyed his command to drop to the floor, he cannot be found guilty under the statute.

       Indiana courts have grappled with the issue of when resistance, obstruction, or

interference rises to the level of forcible resistance, obstruction or interference.        In

Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993), our supreme court clarified that

“forcibly modified the entire string of verbs in that particular section of the statute, due to

the placement of the adverb before the string of verbs in that particular section.” As such,

the supreme court noted that “one forcibly resists law enforcement when strong,

powerful, violent means are used to evade a law enforcement officer’s rightful exercise of

his or her duties.” Id. We tempered the Spangler definition of forceful in Johnson v.

State, 833 N.E.2d 516, 519 (Ind. Ct. App. 2005), when we stated that “our jurisprudence

has not read ‘violent’ to mean that which is thought of in common parlance.” We


                                              4
concluded that “until we are instructed otherwise by our [s]upreme [c]ourt, we see no

reason to apply what appears to be an overly strict definition of ‘forcibly resisting[.]’” Id.

Our supreme court relied on Johnson, when it declared that “the force involved need not

rise to the level of mayhem” and recognized that a “modest level of resistance may

suffice.” Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009).

       On the other hand, passive inaction is insufficient to rise to the level of forcible

resistance.   In A.C. v. State, 929 N.E.2d 907, 911 (Ind. Ct. App. 2010), we determined

that refusing to stand, without more, does not trigger the statute.         Even if passive

resistance requires police officers to use force, it is insufficiently forceful. See, e.g.,

Colvin v. State, 916 N.E.2d 306, 307-09 (Ind. Ct. App. 2009), trans. denied (refusing to

comply with officers’ commands to remove hands from pockets is not forcible resistance

even though officers had to physically place defendant on the ground); Braster v. State,

596 N.E.2d 278, 280 (Ind. Ct. App. 1992), trans. denied (defendant remained standing

after being ordered to lie on the floor and the officer swept defendant’s legs out from

underneath him).

       Moreover, even if a defendant’s resistance, obstruction, or interference is not

passive, it still may fall short of being considered “forcible.” In Spangler, 607 N.E.2d at

721, when a sheriff’s deputy attempted to serve the defendant with process, the defendant

told the officer “I told you not to bother me at work . . . Don’t you ever bother me at work

again.” The defendant then turned around and walked away from the officer. Id. Even

though the officer told Spangler to “come back here,” Spangler refused.             Id.   The

Spangler court held that this was resistance, but not forcible resistance. Id. at 724-25.


                                              5
However, adhering to the rule that the statute requires only modest levels of force, our

supreme court has indicated that merely stiffening one’s arms instead of presenting them

for handcuffing suffices for force. Graham, 903 N.E.2d at 966.

       Recently, in Pogue v. State, 937 N.E.2d 1253, 1258 (Ind. Ct. App. 2010), trans.

denied, we declared that merely showing “strength and a threat of violence” is sufficient

to prove forcible resistance, obstruction, or interference. In Pogue, a police officer

ordered the defendant to drop a box cutter that he was holding. Id. at 1256. When Pogue

attempted to move the box cutter unto his pocket, the officer tackled Pogue to the ground.

Id.

       In Stansberry v. State, 954 N.E.2d 507, 509 (Ind. Ct. App. 2011), the defendant

pulled his shirt over the top of his head and charged at the officer from ten feet away.

The officer drew his pepper spray and announced that he would spray Stansberry if he

continued moving closer. Id. Stansberry disobeyed and kept charging, so the officer

sprayed him in the face from six feet away. Id. After citing to Pogue with approval, the

Stansberry court nevertheless reversed the conviction:

       Here, the trial court stated that “I’m satisfied that the attempted resisting
       was forcible.” Thus the trial court expressly found that Stansberry did not
       resist, obstruct, or interfere with [the officer’s] execution of his duties. If
       we were working on a blank slate, we may have reached a different
       conclusion on these facts. However, given the trial court’s findings,
       Stansberry could not be convicted of [r]esisting [l]aw [e]nforcement.

Id. at 511.

       The situation before us clearly falls within Pogue and its progeny. After Officer

Ehret told Walker and Finch that he would use his tazer if they failed to comply with his



                                             6
order to drop to the ground, Walker disobeyed. Instead, Walker turned towards the

Officer, stared at him, clinched his fists in an aggressive manner, and started walking

towards him. Officer Ehret continued to demand Walker to drop to the floor, but when

Walker was three to four feet away from the Officer, the Officer deployed his tazer. By

these actions, we conclude that Walker displayed his “strength and a threat of violence”

to satisfy the charge of forcibly resisting law enforcement. See Pogue, 937 N.E.2d at

1258.

                                    CONCLUSION

   Based on the foregoing, we conclude that the State presented sufficient evidence

beyond a reasonable doubt to sustain Walker’s conviction.

        Affirmed.

BAKER, J. and BARNES, J. concur




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