MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any
                                                                   Jul 30 2019, 7:40 am
court except for the purpose of establishing
the defense of res judicata, collateral                                 CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
estoppel, or the law of the case.                                        and Tax Court




ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Rory S. Gallagher                                        Curtis T. Hill, Jr.
Valerie K. Boots                                         Attorney General of Indiana
Marion County Public Defender Agency
                                                         Tyler G. Banks
Appellate Division                                       Deputy Attorney General
Indianapolis, Indiana                                    Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Cameron Jermaine Hawkins,                                July 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-3007
        v.                                               Appeal from the
                                                         Marion County Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      Amy M. Jones, Judge
                                                         Trial Court Cause No.
                                                         49G08-1806-CM-20859



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3007 |July 30, 2019                Page 1 of 8
[1]   Cameron Jermaine Hawkins (“Hawkins”) appeals his conviction for resisting

      law enforcement1 as a Class A misdemeanor, raising the following restated

      issues for our review:


                 I. Whether there was sufficient evidence presented to sustain his
                    conviction for resisting law enforcement; and


                 II. Whether the trial court abused its discretion in its
                     determination of indigency.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On June 20, 2018, Hawkins was ordered to be processed by the Indianapolis

      Metropolitan Police Department for a separate action. Appellant’s App. Vol II. at

      104. On June 26, a pretrial conference was held for that action, and the trial

      court ordered Hawkins to report for processing to perform a buccal swab or be

      sent to jail. Tr. at 15, 29. Deputy Ryan Wilson (“Deputy Wilson”), with the

      Marion County Sherriff’s Office (“Sheriff’s Office”), was on duty in the

      courtroom during the pretrial conference. Id. at 28. As Hawkins was leaving

      the courtroom, he tried to exit through an improper door. Id. at 29. Deputy

      Wilson lightly touched Hawkins’s elbow to stop him from exiting through the




      1
          See Ind. Code § 35-44.1-3-1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3007 |July 30, 2019   Page 2 of 8
      door and notified him of his mistake. Id. at 16. When Deputy Wilson notified

      Hawkins, Hawkins shouted, “don’t fucking touch me.” Id. at 17.


[4]   Deputy Wilson then attempted to escort Hawkins downstairs. Id. at 29.

      Deputy Wilson asked Hawkins if he was going to comply with the judge’s

      order, and Hawkins responded, “no. . . fuck that.” Id. at 30. Deputy Wilson

      then attempted to handcuff Hawkins, but Hawkins pushed Deputy Wilson’s

      hands away. Id. at 18. Deputy Wilson ordered Hawkins multiple times to stop

      resisting. Id. Deputy Rayshond Hatfield (“Deputy Hatfield”), also with the

      Sheriff’s Office, saw the interaction and began assisting Deputy Wilson by

      trying to turn Hawkins around. Id. Hawkins then lunged towards Deputy

      Wilson. Id. Deputy Wilson and Deputy Hatfield tried to get Hawkins on the

      floor, but Hawkins stiffened his legs, and the officers were unable to arrest him.

      Id. Hawkins kept moving his hands and Deputy Wilson could not grab them.

      Id. at 19. A third officer, Sheriff’s Office Deputy Stephanie Gravos (“Deputy

      Gravos”), arrived and assisted the other two officers. Id. at 20. Deputy Gravos

      ordered Hawkins to “put his hands behind his back” or she would tase him. Id.

      Hawkins refused to comply, so Deputy Gravos tased Hawkins. Id. After being

      tased, Hawkins submitted to being handcuffed and was arrested. Id.


[5]   On June 27, 2018, the State charged Hawkins with Class A misdemeanor

      resisting law enforcement. Appellant’s Vol. II at 6. A jury trial was held on

      November 19, 2018, and Hawkins was found guilty of resisting law

      enforcement. Tr. at 78. At the November 27, 2018 sentencing hearing, the

      trial court sentenced Hawkins to one year of probation. Id. at 1, 93. The trial
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3007 |July 30, 2019   Page 3 of 8
      court then asked Hawkins about his employment history and his current

      employment. Id. at 89. Hawkins testified he works either twenty-four or forty

      hours a week. Id. He also testified that he has three children, two of whom

      attend college. Id. Hawkins stated that he does not have a vehicle and lives

      with his mother and his grandmother. Id. at 89-90. Lastly, Hawkins stated that

      he helps his grandmother pay her bills due to her illness. Id. at 89. The trial

      court considered this information and declared Hawkins indigent as to court

      costs. Id. at 94. The trial court then placed Hawkins on a sliding fee scale for

      probation costs. Id. Hawkins now appeals.


                                     Discussion and Decision

                                       I.       Sufficient Evidence
[6]   When we review the sufficiency of evidence, we do not determine the

      credibility of the witnesses or reweigh the evidence. Boggs v. State, 928 N.E.2d

      855, 864 (Ind. Ct. App. 2010), trans. denied. We consider only the evidence

      most favorable to the verdict and the reasonable inferences that can be drawn

      from the evidence. Fuentes v. State, 10 N.E.3d 68, 75 (Ind. Ct. App. 2014), trans.

      denied. We also consider conflicting evidence in the light most favorable to the

      trial court’s ruling. Oster v. State, 992 N.E. 871, 875 (Ind. Ct. App. 2013), trans.

      denied. We will not disturb the jury’s verdict if there is substantial evidence of

      probative value to support it. Id. As the reviewing court, we respect “the jury’s

      exclusive province to weigh conflicting evidence.” McHenry v. State, 820

      N.E.2d 124, 126 (Ind. 2005).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3007 |July 30, 2019   Page 4 of 8
[7]   To convict Hawkins of resisting law enforcement as a Class A misdemeanor,

      the State was required to prove beyond a reasonable doubt that Hawkins

      knowingly or intentionally forcibly resisted, obstructed, or interfered with a law

      enforcement officer or a person assisting the officer while the officer was

      lawfully engaged in the execution of the officer’s duties. Ind. Code § 35-44.1-3-

      1(a)(1). Hawkins argues that there was insufficient evidence that the officers

      were acting within the lawful execution of their duties because there was no

      justification for the arrest. Hawkins states that he was not ordered to submit to

      a buccal swab on June 26 and that the subsequent arrest for not complying with

      the order was unwarranted and unlawful.2 Hawkins also contends that the

      officers used excessive force in apprehending him.


[8]   Regardless of whether an arrest is lawful, a citizen cannot resist a peaceful

      arrest by a police officer. Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App.

      2000), trans. denied. See also Dora v. State, 783 N.E.2d 322, 327 (Ind. Ct. App.

      2003) (holding that determining the lawfulness of an arrest should be decided

      by the courts and not by emotional citizens). Hawkins is prevented by law from

      resisting an arrest that he thinks is unlawful. The jury reasonably found that

      Hawkins resisted the orders of the officers, and we will not reweigh the




      2
       Appellant premises his argument on the lawfulness of the buccal swab. We do not address this issue
      because the lawfulness of the buccal swab is under a separate action and is not related to the lawfulness of the
      arrest currently at issue.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-3007 |July 30, 2019                        Page 5 of 8
       evidence as to the lawfulness of the arrest. Therefore, there was sufficient

       evidence to support his conviction.


[9]    Hawkins further argues that the officers used excessive force because he was not

       arrested “on the suspicion of a crime.” Appellant’s Br. at 16. Force is excessive

       when it is “disproportionate to the situation.” Shoultz, 735 N.E.2d at 823.

       Here, the officers did not use excessive force; they used only the force required

       to subdue Hawkins. When Deputy Wilson attempted to arrest Hawkins,

       Hawkins “pulled away” from Wilson. Tr. at 30. Deputy Wilson then tried to

       place Hawkins on the ground to handcuff him, but Hawkins resisted and

       ignored Deputy Wilson’s orders. Id. at 18. Because Hawkins continued to fight

       back, three officers were required to subdue him. Id. at 20. Thus, the force

       used by the officers was not disproportionate to the force used by Hawkins to

       resist his arrest. We conclude that the officers did not use excessive force when

       they arrested Hawkins.


                                    II.     Indigency Determination
[10]   Fees imposed by the trial court are “reviewed under an abuse of discretion

       standard.” Johnson v. State, 27 N.E.3d 793, 794 (Ind. Ct. App. 2015). Fees and

       costs are included in sentencing orders. Id. “An abuse of discretion has

       occurred when the sentencing decision is ‘clearly against the logic and effect of

       the facts and circumstances before the court, or the reasonable, probable, and

       actual deduction to be drawn therefrom.’” Id. (quoting McElroy v. State, 856

       N.E.2d 584, 588 (Ind. 2007)). “If the fees imposed by the trial court fall within


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3007 |July 30, 2019   Page 6 of 8
       the parameters provided by the statute, we will not find an abuse of discretion.”

       Id. (quoting Berry v. State, 950 N.E.2d 798, 799 (Ind. Ct. App. 2011)).


[11]   Hawkins argues that the trial court improperly delegated the indigency

       determination to the probation department. We disagree. Under Indiana Code

       section 35-38-2-1(b), a trial court may impose fees when the defendant is

       convicted of a misdemeanor. A trial court is required to conduct an indigency

       hearing prior to imposing costs. Ind. Code § 33-37-2-3. An indigency hearing

       may be conducted at any point but should take place before the defendant

       completes his sentence. Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct. App.

       2017). An indigency hearing is sufficient when the trial court asks questions to

       determine a defendant’s “ability to pay.” Id.


[12]   Here, it was the trial court, not the probation department, that ascertained

       sufficient information to make the determination that Hawkins was indigent.

       The trial court asked Hawkins about his employment, his living situation, his

       transportation, and his dependent children. This information was sufficient to

       determine Hawkins’s ability to pay court costs. Thus, an indigency hearing was

       held and was properly conducted. Placing Hawkins on the sliding fee scale for

       probation was not an abuse of discretion because the trial court found that

       Hawkins’ job afforded him the ability to pay a portion of probation costs. In

       doing so, the trial court did not abuse its discretion.


[13]   Affirmed.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-3007 |July 30, 2019   Page 7 of 8
Vaidik, C.J., and Altice, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-3007 |July 30, 2019   Page 8 of 8
