MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       Mar 13 2018, 6:20 am

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
Barbara J. Simmons                                      Curtis T. Hill, Jr.
Oldenburg, Indiana                                      Attorney General of Indiana
Rory Gallagher                                          Matthew B. MacKenzie
Marion County Public Defender Agency                    Deputy Attorney General
Indianapolis, Indiana                                   Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Oluwaseyi Ojo,                                          March 13, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1707-CR-1636
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Stanley Kroh,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        49G03-1701-CM-4186



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018    Page 1 of 13
                                      Case Summary and Issue
[1]   Following a bench trial, Oluwaseyi Ojo was found guilty of resisting law

      enforcement by force, a Class A misdemeanor. Ojo now appeals challenging

      the sufficiency of the evidence. Concluding there was sufficient evidence to

      support the conviction, we affirm.



                                 Facts and Procedural History                             1




[2]   Around 8:30 A.M. on January 31, 2017, Officer Loren Eltzroth of the

      Indianapolis Metropolitan Police Department (“IMPD”), stopped at a Phillips

      66 gas station. While inside, a customer approached Officer Eltzroth and

      informed him that a black male wearing a purple coat was urinating in the alley

      on the west side of the building. Officer Eltzroth located a black male matching

      the description and approached him in full police uniform. The black male,

      later identified as Ojo, was found leaning against the building using his

      cellphone.2


[3]   Officer Eltzroth asked for Ojo’s identification. At first, Ojo ignored Officer

      Eltzroth and continued looking down at his cellphone but as Officer Eltzroth

      explained why he was there and why he needed to see identification, Ojo




      1
       We heard oral argument on this case February 8, 2018, at South Vermillion High School in Clinton,
      Indiana. We thank the teachers, staff, and students of South Vermillion High School for their generous
      hospitality and commend counsel for their skilled oral advocacy.
      2
          Ojo later testified that he was using the gas station’s Wifi.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018           Page 2 of 13
      attempted to talk over Officer Eltzroth “almost as if he were trying to

      intimidate,” while exhibiting a “belligerent, combative and argumentative”

      demeanor. Transcript, Volume 2 at 10. Ojo stated that he had only been

      stopped because he was a black male and demanded to know who had reported

      him. When back-up arrived in the form of IMPD Officer Hinshaw, Ojo

      attempted to “plead his case” to him, ignoring Officer Eltzroth who was still

      attempting to speak to him. Id. at 11.


[4]   With the two officers on either side of him, Ojo repeatedly stated that he

      “didn’t need to know me [sic] identification and he didn’t need to identify

      himself . . . .” Id. at 12. Finally, when Officer Hinshaw asked for

      identification, Ojo reached his left hand to his left pocket and began “digging

      into the pocket.” Id. Officer Eltzroth ordered Ojo two or three times to take his

      hand out of his pocket “immediately.” Id. Officer Eltzroth then reached

      forward and grabbed Ojo’s right wrist while Officer Hinshaw grabbed Ojo’s left

      wrist. As the two officers attempted to place Ojo in handcuffs, Ojo “forcibly

      pushed his arms forward in an effort to put his arms and hands in front of him.”

      Id. at 14. Officers secured Ojo in handcuffs after about “25 seconds.” Id. at 15.


[5]   When Officer Eltzroth informed Ojo that he was under arrest for resisting, Ojo

      became cooperative, stating, “Well, I was just getting my identification.” Id. at

      16. Ojo’s identification was, in fact, located in his left pocket.


[6]   A bench trial was conducted on June 23, 2017. There, after hearing the

      presentation of evidence, the court concluded:


      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018   Page 3 of 13
               I have to tell you I saw two officers walk into this courtroom who
               appeared to be extremely physically fit. They both testified it
               took 20 to 25 seconds to get Mr. Ojo to comply and put his hands
               behind his back and that to the Court is sufficient evidence. I’m
               more inclined to follow Judge Vaidik’s [dissenting] Opinion in
               [Berberena v. State, 914 N.E.2d 780 (Ind. Ct. App. 2009)] . . . . I
               know different panels at our Indiana Court of Appeals have
               looked at this force issue many times, but being the person here
               observing the officers, being able to evaluate their testimony and
               their actions while they testified, this – in the Court’s view, the
               evidence shows much, much more than just passive resistance[.]


      Id. at 38.


[7]   Ojo was found guilty of resisting law enforcement by force, a Class A

      misdemeanor, and sentenced to a 180-day term of probation. Ojo now

      appeals.



                                   Discussion and Decision
                                  I. Sufficiency of the Evidence
                                          A. Standard of Review
[8]   Ojo challenges the sufficiency of the evidence to support his conviction of

      resisting law enforcement by force.3




      3
        We note that Ojo failed to contest the constitutionality of his arrest at trial and he never objected to the
      State’s admission of evidence regarding his arrest. See e.g., Raess v. Doescher, 883 N.E.2d 790, 796 (Ind. 2008)
      (“Only trial objections . . . are effective to preserve claims of error for appellate review.”). Ojo therefore
      waived any error in its admission. Townsend v. State, 632 N.E.2d 727, 730 (Ind. 1994) (noting that if an error
      is not objected to at trial, it cannot be raised on appeal). Waiver prohibits an appellant from raising the issue

      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018                Page 4 of 13
               When reviewing the sufficiency of the evidence needed to
               support a criminal conviction, we neither reweigh the evidence
               nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003,
               1005 (Ind. 2009). “We consider only the evidence supporting the
               judgment and any reasonable inferences that can be drawn from
               such evidence.” Id. We will affirm if there is substantial
               evidence of probative value such that a reasonable trier of fact
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


      Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied. The

      evidence need not overcome every hypothesis of innocence; rather, the

      evidence is sufficient if an inference may “reasonably be drawn from it to

      support the verdict.” Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007).


                                  B. Resisting Law Enforcement
[9]   Indiana Code section 35-44.1-3-1 provides:


               (a) A person who knowingly or intentionally:


                        (1) forcibly resists, obstructs, or interferes with a law
                            enforcement officer or a person assisting the officer




      on appeal unless the appellant can show fundamental error. Clark v. State, 915 N.E.2d 126, 131 (Ind. 2009).
      Ojo did not allege fundamental error in his appellant’s brief.
      Ojo also fails to contest the constitutionality of his arrest on appeal. Although there was discussion of
      constitutional issues at oral argument, this is insufficient to avoid waiver. See Humphrey v. State, 73 N.E.3d
      677, 687 n.2 (Ind. 2017) (noting that constitutional argument raised for the first time in oral argument is
      waived). This court “cannot reverse on grounds not argued by the appellant unless the violations constitute
      fundamental error.” Ashworth v. State, 901 N.E.2d 567, 571 n.3 (Ind. Ct. App. 2009), trans. denied.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018              Page 5 of 13
                           while the officer is lawfully engaged in the execution of
                           the officer’s duties;


                           ***


               commits resisting law enforcement, a Class A misdemeanor . . . .


[10]   The State was therefore required to show that Ojo: 1) knowingly or

       intentionally; 2) forcibly resisted, obstructed, or interfered with; 3) a law

       enforcement officer while he was lawfully engaged in the execution of his

       duties. However, as our supreme court recently noted in Walker v. State, “Such

       a seemingly simple statute . . . has proven to be complex and nuanced in its

       application.” 998 N.E.2d 724, 726 (Ind. 2013).


[11]   Walker v. State is also our supreme court’s most recent exploration of the

       resisting law enforcement statute. There, an officer arrived on scene to find two

       men yelling at each other in an intersection before beginning to throw punches.

       The officer announced his presence and ordered them to stop and to lay down

       on the ground; when they did not comply within ten or fifteen seconds, the

       officer threatened to use his taser. One man dropped to the ground while the

       defendant turned toward the officer, who was about ten feet away, and

       approached with his fists clenched. The defendant was tased, arrested, and

       convicted of resisting law enforcement. Our supreme court explained that:


               In Spangler v. State, we 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
       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018   Page 6 of 13
               interference. 607 N.E.2d 720, 722-23 (Ind. 1993). We also held
               that the word meant “something more than mere action.” Id. 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.


       Id. at 726-27. After examining a number of other cases, the court determined:


               [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.


       Id. at 727.


[12]   Although our supreme court declined to create a “strict bright-line test”

       regarding “forcibly,” it explained, “[g]iven the definition we have articulated,

       we feel confident that triers of fact will make the proper determinations when

       confronted with the facts of the cases before them, and our body of case law

       provides ample guideposts for appellate review.” Id. at 728. Applying that

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018   Page 7 of 13
       reasoning to the facts presented, the court held the evidence was sufficient to

       support a conviction because the defendant’s actions—disobeying orders while

       approaching the officer with clenched fists—constituted a threat of force. Id. at

       728-29.


[13]   Here, unlike the threat of force at issue in Walker, Ojo argues that his action did

       not constitute “forcible” resistance. The term “forcibly” is a distinct element of

       the offense that modifies all three verbs “resists, obstructs, or interferes.” A.A. v.

       State, 29 N.E.3d 1277, 1281 (Ind. Ct. App. 2015). In support of his argument,

       Ojo relies on Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2010), trans. denied.

       There, officers were serving a search warrant at an apartment and upon entry

       observed the defendant in the living room with his hands in his pockets. After

       officers ordered the defendant to remove his hands and he refused, officers

       “physically had to place him on the ground and handcuff him.” Id. at 307. On

       appeal, we reversed the defendant’s conviction for resisting law enforcement,

       explaining:


               The officers testified only that Colvin was not complying with the
               officers’ commands and that the officers had to use force to
               execute the arrest. 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. Indeed, the testimony
               shows that Colvin kept his hands in his pockets during the
               struggle. There is no evidence that Colvin stiffened his arms or
               otherwise forcibly resisted officers.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018   Page 8 of 13
       Id. at 309 (citation omitted). Ojo emphasizes the fact that here, as in Colvin, the

       State failed to present evidence that Ojo made a “strong or powerful action” to

       contribute to the struggle with officers. Brief of Appellant at 10.


[14]   Next, Ojo argues that “pulling his hands away” was not a threatening or violent

       action. Id. at 11. Relying on Berberena v. State, 914 N.E.2d 780 (Ind. Ct. App.

       2009), trans. denied, Ojo advances the proposition that simply because officers

       struggled to handcuff him, that alone is insufficient to support his conviction.

       In Berberena, an officer observed the defendant commit a battery then ordered

       him to place his hands behind his back. When the defendant failed to comply,

       the officer had to “forcefully place [the defendant] against the wall of the

       building . . . and [the officer] had to struggle with him to grab his hands and

       place them in handcuffs.” Id. at 781. We again reversed the defendant’s

       conviction on appeal, reasoning that the officer’s testimony was “ambiguous”

       and that there was no evidence that the defendant either stiffened his arms or

       otherwise “made threatening or violent actions” to contribute to the struggle.

       Id. at 782. Similarly, Ojo argues this record lacks such evidence; we disagree.


[15]   Although both cases initially appear favorable to Ojo’s position, a closer

       reading reveals the contrary. The cases Ojo cites involve force used by officers,

       not the defendant, and the record here reveals that Ojo actively pulled his arms

       forward while two officers attempted to handcuff him. On this point, we

       reviewed an analogous situation in Jordan v. State, 37 N.E.3d 525, 535 (Ind. Ct.

       App. 2015). There, the defendant turned belligerent after a traffic stop and

       attempted to run away from an officer. When the officer grabbed her shoulder,

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018   Page 9 of 13
       she “yanked” away, “twisted and turned,” and pulled her arms forward. Id. at

       529. The officer then swept her feet out from under her and handcuffed her

       after momentarily struggling to take control of her wrists. Appealing her

       conviction, the defendant mounted a similar argument to the one now before

       us, citing both Berberena and Colvin. And, as we do again today, we

       distinguished those cases because the State had failed to present evidence of the

       defendant’s use of force whereas in Jordan, there was ample evidence that the

       defendant had used force. We therefore affirmed the defendant’s conviction.


[16]   As our supreme court explained in Walker, forcible resistance does not require

       an “overwhelming or extreme level of force,” rather, the statute may be satisfied

       with “even a modest exertion of strength, power, or violence.” 998 N.E.2d at

       726. Applying such standard here, we must agree with the trial court:


               I have to tell you I saw two officers walk into this courtroom who
               appeared to be extremely physically fit. They both testified it
               took 20 to 25 seconds to get Mr. Ojo to comply and put his hands
               behind his back and that to the Court is sufficient evidence.


       Tr., Vol 2 at 38. We therefore affirm Ojo’s conviction.


                                            II. Ojo’s Arrest
[17]   Although the foregoing discussion adequately disposes of the narrow question

       before us, we would be remiss if we did not discuss the curious juxtapositions

       created by the underlying facts of this case and, more importantly, question to

       what extent this case was even necessary.


       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018   Page 10 of 13
[18]   Our supreme court has explained:


                In [Terry v. Ohio], the Supreme Court [of the United States] held
                that an officer may, consistent with the Fourth Amendment,
                conduct a brief, investigatory stop when, based on a totality of
                the circumstances, the officer has a reasonable, articulable
                suspicion that criminal activity is afoot. A Terry stop is a lesser
                intrusion on the person than an arrest and may include a request
                to see identification and inquiry necessary to confirm or dispel
                the officer’s suspicions.


       Hardister v. State, 849 N.E.2d 563, 570 (Ind. 2006). For our purposes, we need

       not tread into the highly fact-sensitive inquiry of whether—or at what point—

       Officer Eltzroth developed reasonable suspicion. We will simply assume, as the

       State argued at trial, that Officer Eltzroth possessed reasonable suspicion and

       that Ojo was seized for the purposes of Terry.4


[19]   Instead, we turn our attention to the course of investigation. The record reveals

       that Officer Eltzroth was informed that an individual had urinated behind the

       gas station and that he eventually located Ojo, “leaning up against the building,

       look[ing] like he was doing something on his cell phone.” Tr., Vol. 2 at 8.


[20]   Public urination is not—in and of itself—a crime. We are mindful, of course, of

       the public policy concerns to prevent such activity: it was, after all, 8:30 A.M.




       4
         The State asserted during closing argument that “Officer Eltzroth briefly detained the defendant in order to
       ask him questions in order – in the course of his investigation. He asked the defendant to produce his
       identification.” Tr., Vol. 2 at 43. “[Ojo] was being briefly detained because the officers had a reasonable
       suspicion that he was – that he had committed a crime.” Id. at 45.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018            Page 11 of 13
       on a Tuesday in a busy location in Indianapolis. But if Officer Eltzroth

       intended only to address public urination, in the words of Judge Crone, “[t]his

       leaves [us] wondering why the officer did not merely admonish [Ojo] to leave

       the [gas station] . . . .” Johnson v. State, 38 N.E.3d 658, 665 (Ind. Ct. App. 2015)

       (J. Crone, dissenting), trans. denied.


[21]   If, however, Officer Eltzroth suspected that criminal activity was afoot, we

       must ask what steps were taken to either confirm, or dispel, those suspicions.

       Hardister, 849 N.E.2d at 570. And although public urination could serve as a

       tell-tale indicator of several crimes, the record is absent any subsequent inquiry

       or supporting facts. See e.g., Florida v. Royer, 460 U.S. 491, 500 (1983)

       (acknowledging that the methods employed in a Terry stop “should be the least

       intrusive means reasonably available to verify or dispel the officer’s suspicion in

       a short period of time.”). Instead, it appears that Officer Eltzroth was

       singularly focused on obtaining Ojo’s identification, regardless of whether or

       not a crime had been committed. While we leave for another day the question

       of whether an officer may persist in requesting identification during a Terry stop

       even after the initial reasonable suspicion has been dispelled, we note that the

       question is certainly presented on these facts.



                                              Conclusion
[22]   For the reasons set forth above, we conclude the State presented sufficient

       evidence to convict Ojo of resisting law enforcement by force, a Class A

       misdemeanor, and we therefore affirm Ojo’s conviction.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018   Page 12 of 13
[23]   Affirmed.


       Najam, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1707-CR-1636 | March 13, 2018   Page 13 of 13
