                                                                      FILED
                                                               Oct 31 2018, 10:03 am

                                                                      CLERK
                                                                Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Rory Gallagher                                             Curtis T. Hill, Jr.
Marion County Public Defender                              Attorney General of Indiana
Indianapolis, Indiana                                      Andrew A. Kobe
                                                           Section Chief, Criminal Appeals
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Laperria Marie Brooks,                                     October 31, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-759
        v.                                                 Appeal from the Marion Superior
                                                           Court
State of Indiana,                                          The Honorable Amy M. Jones,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           49G08-1707-CM-26623



Pyle, Judge.




                                   Statement of the Case




Court of Appeals of Indiana | Opinion 18A-CR-759 | October 31, 2018                      Page 1 of 7
[1]   Laperria Brooks (“Brooks”) was convicted following a bench trial of Class A

      misdemeanor criminal trespass,1 Class A misdemeanor resisting law

      enforcement,2 and Class B misdemeanor disorderly conduct.3 On appeal,

      Brooks argues that there was insufficient evidence to support only her

      conviction for resisting law enforcement. Finding that there was insufficient

      evidence to support her conviction, we reverse her conviction for resisting law

      enforcement. We remand with instructions for the trial court to vacate the

      Class A misdemeanor resisting law enforcement conviction and enter a new

      sentencing order and abstract of judgment to reflect the vacated conviction.


[2]   We reverse.


                                                       Issue

      Whether there was sufficient evidence to support Brooks’ resisting law
      enforcement conviction.

                                                       Facts

[3]   On July 19, 2017, Brooks attempted to cash a check at a Kroger store in

      Indianapolis. Brooks became upset when the manager told her that Kroger

      would not cash her check because she did not have proper identification.

      Brooks started yelling loudly and “disrupting the whole store.” (Tr. 8). The



      1
          IND. CODE § 35-43-2-2.
      2
          I.C. § 35-44.1-3-1.
      3
          I.C. § 35-45-1-3.


      Court of Appeals of Indiana | Opinion 18A-CR-759 | October 31, 2018       Page 2 of 7
      manager informed Brooks that she needed to leave the store several times, but

      she refused. The manager then called the police.


[4]   Officer Jonathon Willey (“Officer Willey”) of the Indianapolis Metropolitan

      Police Department arrived at the Kroger store and found Brooks refusing to

      leave the store. Brooks was still yelling loudly and attracting the attention of

      other customers. Officer Willey told Brooks multiple times to stop yelling and

      to leave the store, but Brooks refused. Eventually, Officer Willey put his arm

      around Brooks and tried to walk her out of Kroger. Brooks recoiled at Officer

      Willey’s touch. Brooks told Officer Willey that she would walk out of the store

      if he took his arm off her. Officer Willey removed his arm, and Brooks left the

      store.


[5]   After Brooks left Kroger, Officer Willey told her that she needed to leave the

      parking lot as well. Brooks refused and continued to be “very loud” even after

      Officer Willey warned her multiple times that she would be arrested for

      trespassing if she did not leave. (Tr. 15). Brooks refused to leave the parking

      lot. Officer Willey informed Brooks that she was under arrest and to put her

      hands behind her back. When Officer Willey tried to handcuff Brooks, “[s]he

      tensed up and wouldn’t give [him] her arms.” (Tr. 15). At trial, the State asked

      Officer Willey, “[w]as [Brooks] using force to get away?” (Tr. 16). Officer

      Willey responded, “[s]he was using her physical stature to not give us her

      arms.” (Tr. 16). With the assistance of a second officer, Officer Willey was

      able to handcuff Brooks and place her under arrest.



      Court of Appeals of Indiana | Opinion 18A-CR-759 | October 31, 2018        Page 3 of 7
[6]   On July 20, 2017, the State charged Brooks with: Count I, criminal trespass, a

      Class A misdemeanor; Count II resisting law enforcement, a Class A

      misdemeanor; and Count III, disorderly conduct, a Class B misdemeanor. The

      matter proceeded to a bench trial on March 9, 2018. Brooks, the Kroger

      manager, and Officer Willey testified to the facts above. The trial court found

      Brooks guilty of all three counts. The trial court sentenced Brooks to

      concurrent sentences of one (1) year on Counts I and II, with a concurrent

      sentence of 180 days on Count III. The court suspended the sentence, except

      for time served, and sentenced Brooks to 361 days of probation.


                                                    Decision

[7]   Brooks challenges the sufficiency of the evidence for only her resisting law

      enforcement conviction. Our standard of review for sufficiency of evidence

      claims is well settled. We do not assess the credibility of the witnesses or

      reweigh the evidence in determining whether the evidence is sufficient. Drane v.

      State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only the probative

      evidence and reasonable inferences supporting the verdict. Id. Reversal is

      appropriate only when no reasonable fact-finder could find the elements of the

      crime proven beyond a reasonable doubt. Id.


[8]   In order to convict Brooks of resisting law enforcement, the State was required

      to prove beyond a reasonable doubt that: (1) Brooks; (2) knowingly; (3) forcibly

      resisted, obstructed, or interfered with; (4) Jonathan Willey, a law enforcement

      officer; (6) while said officer was lawfully engaged in his duties as a law

      Court of Appeals of Indiana | Opinion 18A-CR-759 | October 31, 2018           Page 4 of 7
      enforcement officer. I.C. § 35-44.1-3-1(a)(1) (emphasis added). On appeal,

      Brooks maintains that the evidence is insufficient to show that she forcibly

      resisted Officer Willey. We agree.


[9]   Our supreme court held that any action to resist must be done with force.

      Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993) (reversing defendant’s

      conviction for resisting law enforcement because there was insufficient evidence

      of force where defendant merely resisted service of process by vehemently

      refusing to accept service and turning and walking away). “[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

      (emphasis added). The forcible resistance element requires “some form of

      violent action toward another.” Id. at 724. “It is error as a matter of law to

      conclude that ‘forcibly resists’ includes all actions that are not passive.” Id.

      “The force involved need not rise to the level of mayhem.” Graham v. State, 903

      N.E.2d 963, 965 (Ind. 2009). Indeed, “turn[ing] [and] pull[ing] away” from a

      law enforcement encounter, K.W. v. State, 984 N.E.2d 610, 612-13 (Ind. 2013),

      leaning away from an officer’s grasp, A.C. v. State, 929 N.E.2d 907, 912 (Ind.

      Ct. App. 2010), refusing to present arms for handcuffing, Graham, 903 N.E.2d

      966, “twisting and turning ‘a little bit’” against an officer’s actions, Ajabu v.

      State, 704 N.E.2d 494, 495-96 (Ind. Ct. App. 1998), or walking away from a law

      enforcement encounter, Spangler, 607 N.E.2d at 724, do not establish forcibly

      resisting law enforcement.



      Court of Appeals of Indiana | Opinion 18A-CR-759 | October 31, 2018          Page 5 of 7
[10]   In the instant case, both Officer Willey and Brooks testified to the events

       surrounding her arrest. Officer Willey testified in relevant part as follows:


               [Officer Willey]: She tensed up and wouldn’t give me her arms.

                                                         * * *

               [Officer Willey]: She just kept tensing up and pulling away.

                                                         * * *

               [State]: Was she using force to get away?

               [Officer Willey]: She was using her physical stature to not give
               us her arms.

       (Tr. 15-16). Brooks testified on direct examination as follows:


               [Brooks’ Attorney]: And you admit that you did tense up when
               he touched you. Right?

               [Brooks]: Yes sir.

               [Brooks’ Attorney]: And you pulled away some?

               [Brooks]: Yes sir.

       (Tr. 23).

[11]   Here, nothing in the testimony from Officer Willey or Brooks suggests that she

       employed any “strength, power, or violence” against the officers. See Spangler,

       607 N.E.2d at 724. There is no specific testimony to even suggest that Officer

       Willey had to use force to execute the arrest. There was no movement or

       threatening gesture made in the direction of Officer Willey. Indeed, Officer

       Willey was specifically asked whether or not Brooks used force to get away,

       and he did not answer in the affirmative.

       Court of Appeals of Indiana | Opinion 18A-CR-759 | October 31, 2018        Page 6 of 7
[12]   The State argues that Brooks “used physical force against the officer to prevent

       the officer from handcuffing her . . . .” (State’s Br. 7). As detailed above, the

       facts supporting this argument are not found within the record. The evidence

       “demonstrates obnoxious disrespect for authority, but not the use of any force”

       by Brooks. See Graham, 903 N.E.2d at 964. Accordingly, we hold that the State

       failed to present sufficient evidence to prove beyond a reasonable doubt that

       Brooks forcibly resisted the officer. Therefore, we reverse Brooks’ conviction

       for Class A misdemeanor resisting law enforcement.


[13]   Reversed.


       Najam, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-759 | October 31, 2018        Page 7 of 7
