MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                FILED
regarded as precedent or cited before any                                    Apr 30 2019, 11:39 am

court except for the purpose of establishing                                         CLERK
the defense of res judicata, collateral                                          Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Frederick Vaiana                                         F. Aaron Negangard
Voyles Vaiana Lukemeyer Baldwin &                        Chief Deputy Attorney General
Webb                                                     Sierra A. Murray
Indianapolis, Indiana                                    Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jewarr Woodson,                                          April 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2708
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Marshelle D.
Appellee-Plaintiff.                                      Broadwell, Magistrate
                                                         Trial Court Cause No.
                                                         49G17-1807-F6-22863



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2708 | April 30, 2019                           Page 1 of 9
[1]   Jewarr Woodson appeals his conviction for resisting law enforcement as a level

      6 felony. Woodson raises one issue which we revise and restate as whether the

      evidence is sufficient to sustain his conviction. We affirm.


                                      Facts and Procedural History

[2]   On July 13, 2018, Officer Zachary Miller and Officer Tyler Swoveland of the

      Indianapolis Metropolitan Police Department were dispatched to an address on

      East 17th Street in Marion County related to a reported disturbance. The

      officers were in full uniform. When he arrived at the scene, Officer Swoveland

      spoke with a woman, R.H. After several minutes of speaking with her,

      Woodson came to a window and spoke to the officers through the window.

      The officers asked Woodson to exit the residence, but he initially did not do so.

      Woodson opened the door, and Officer Swoveland attempted to approach him

      while he was standing in the door, and Woodson shut the door. The officers

      did not believe Woodson was going to exit the residence willingly, and Officer

      Miller spoke to a detective about applying for a search warrant.


[3]   Several minutes later, Woodson exited the residence and walked towards the

      sidewalk. Woodson started to walk past Officer Miller. Officer Miller told

      Woodson to stop, turn around, and place his hands behind his back. Officer

      Miller attempted to grab Woodson’s right wrist, and Woodson “pulled his arm

      back in a jerking, aggressive motion to uh Officer Miller’s grasp uh failed and

      he wasn’t able to hold onto him.” Transcript Volume 2 at 16. Officer Miller

      “tried to reengage with him and tried to grab him again,” and at that point,

      Woodson turned around and “took both of his hands and pushed Officer Miller
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2708 | April 30, 2019   Page 2 of 9
      in the upper chest and caused him to fall backwards and land on the sidewalk.”

      Id. As he was falling, Officer Miller reached up to grab Woodson, the two men

      fell to the ground, and Officer Miller’s elbow hit the concrete and he was

      injured. Wilson was arrested.


[4]   The State charged Woodson, as amended, with: Count I, criminal confinement

      as a level 6 felony; Count II, strangulation as a level 6 felony; Count III, battery

      resulting in bodily injury as a class A misdemeanor; Count IV, resisting law

      enforcement as a class A misdemeanor; Count V, domestic battery as a class A

      misdemeanor; and Count VI, resisting law enforcement as a level 6 felony. At

      the start of Woodson’s bench trial, the prosecutor indicated the State was

      proceeding on Counts IV and VI. Officer Miller indicated that, when he arrived

      on the scene, he identified the parties to the disturbance. When asked “when

      [Woodson] came out of the house, how did he resist,” Officer Miller testified,

      “at that point, we had just said - or we came to the conclusion that a crime did

      occur and that we needed to uhm detain him for the investigation and he

      attempted to away after I told him . . . to stop.” Id. at 7. When asked “[a]nd

      you ultimately, through your investigation, had decided a crime had been

      committed, correct,” he replied “[c]orrect.” Id. at 10. Officer Swoveland

      testified that “after several minutes – minutes of speaking to [R.H.] outside,

      [Woodson] came to a window” and that, at the time Woodson exited the

      residence and Officer Miller told him to turn around, he believed a crime had

      been committed. Id. at 14. Officer Swoveland also testified “Officer Miller was

      speaking to a detective because originally, we believed [Woodson] wasn’t going


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2708 | April 30, 2019   Page 3 of 9
      to come out of the residence willingly, so we were going to have to apply for a

      search warrant.” Id. at 18. Woodson’s counsel moved for dismissal and argued

      the officers did not have reasonable suspicion of criminal activity and were not

      lawfully engaged in their duties. The prosecutor argued that the officers had

      investigated and then determined that Woodson had committed a crime. The

      court denied the motion to dismiss. The court found the State met its burden as

      to Counts IV and VI. At sentencing, it stated that it would vacate the class A

      misdemeanor under Count IV, sentenced Woodson to 200 days for resisting

      law enforcement as a level 6 felony under Count VI, and ordered him to pay

      restitution.


                                                   Discussion

[5]   The issue is whether the evidence is sufficient to sustain Woodson’s conviction

      for resisting law enforcement as a level 6 felony. When reviewing the

      sufficiency of the evidence to support a conviction, appellate courts must

      consider only the probative evidence and reasonable inferences supporting the

      verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the factfinder’s

      role, not that of appellate courts, to assess witness credibility and weigh the

      evidence to determine whether it is sufficient to support a conviction. Id. We

      will affirm unless no reasonable factfinder could find the elements of the crime

      proven beyond a reasonable doubt. Id. The evidence is sufficient if an

      inference may reasonably be drawn from it to support the verdict. Id. at 147.


[6]   Woodson argues that the record fails to support the finding that the officers

      were lawfully engaged in their duties when they sought to restrain him. He
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2708 | April 30, 2019   Page 4 of 9
      argues the record contains no evidence as to what crime the officers suspected

      him to have committed and no specific articulable facts that formulate

      reasonable suspicion or probable cause that he had committed a crime. He

      contends that a mere disturbance is insufficient reason to place someone in

      custody.


[7]   The State maintains that a person may not use force in resisting a peaceful

      arrest regardless of the lawfulness of the arrest and that Woodson knew the

      officers were performing their duties when he forcibly resisted. It argues that an

      individual does not have the freedom to physically assault a police officer as

      Woodson did when he turned and pushed Officer Miller. It also argues that the

      officers had reasonable suspicion that Woodson had committed a crime.


[8]   Ind. Code § 35-44.1-3-1(a) provides:

              A person who knowingly or intentionally:

                       (1) forcibly resists, obstructs, or interferes 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;

                       (2) forcibly resists, obstructs, or interferes with the authorized
                       service or execution of a civil or criminal process or order of
                       a court; or

                       (3) flees from a law enforcement officer after the officer has,
                       by visible or audible means, including operation of the law
                       enforcement officer’s siren or emergency lights, identified
                       himself or herself and ordered the person to stop;

              commits resisting law enforcement, a Class A misdemeanor, except
              as provided in subsection (b).
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2708 | April 30, 2019     Page 5 of 9
      The offense is a level 6 felony if the person inflicts bodily injury on or otherwise

      causes bodily injury to another person. See Ind. Code § 35-44.1-3-1(b)(1)(B).

      The State alleged in its information for Count VI that Woodson committed

      resisting law enforcement under Ind. Code § 35-44.1-3-1(a)(1) and Ind. Code §

      35-44.1-3-1(b)(1)(B).


[9]   The general rule in Indiana is that a private citizen may not use force to resist a

      peaceful arrest by an individual who he knows, or has reason to know, is a

      police officer performing his duties, regardless of whether the arrest in question

      is lawful. Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App. 2000) (citations

      omitted), reh’g denied, trans. denied. Woodson cites Gaddie v. State, 10 N.E.3d

      1249 (Ind. 2014), in support of his position. In that case, a police officer

      responded to a report of a disturbance at a residence, when he arrived he saw

      about eight people on a porch and in the front yard screaming and yelling, and

      he saw several other people including the defendant walking along a side yard

      toward the back. 10 N.E.3d at 1252. The officer eventually headed toward the

      back, identified himself as an officer, and told the defendant to stop, but the

      defendant continued walking toward an alley. Id. The officer, screaming

      extremely loud, repeated his order to stop, and the defendant looked back at the

      officer two or three times but continued walking. Id. Another officer

      intercepted the defendant at the next street over. Id. The defendant was

      charged with resisting law enforcement by fleeing after being ordered to stop by

      a law enforcement officer and found guilty as charged. Id.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2708 | April 30, 2019   Page 6 of 9
[10]   The Indiana Supreme Court stated that the defendant’s appeal was predicated

       upon a claim of insufficient evidence but the defendant did not specify the

       element of the offense for which the proof was allegedly lacking, that the

       relevant part of the resisting law enforcement statute was Ind. Code § 35-44.1-3-

       1(a)(3), and that, “[b]ecause the defendant’s argument focuses on whether the

       defendant had a duty to stop, we view his claim as alleging insufficient evidence

       to prove the element ‘after the officer has . . . ordered the person to stop.’” Id.

       at 1252-1253. The Court held that “the statutory element ‘after the officer has .

       . . ordered the person to stop’ must be understood to require that such order to

       stop rest on probable cause or reasonable suspicion, that is, specific, articulable

       facts that would lead the officer to reasonably suspect that criminal activity is

       afoot” and that “[a]bsent proof that an officer’s order to stop meets such

       requirements, the evidence will be insufficient to establish the offense of

       Resisting Law Enforcement by fleeing.” Id. at 1255 (footnote omitted). The

       Court found that the officer had responded to “just a disturbance,” that “the

       mere existence of a disturbance, standing alone,” does not identify specific

       articulable facts that lead an officer to reasonably suspect that criminal activity

       is afoot, and thus that the circumstances of the disturbance did not provide

       sufficient evidence to prove the element that the order to stop was supported by

       probable cause or reasonable suspicion. Id. at 1255-1256.


[11]   In Gaddie, the defendant was charged with resisting law enforcement by fleeing

       after being ordered to stop, and the relevant part of the statute was subsection

       (a)(3). Here, the State charged Woodson with resisting law enforcement under


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2708 | April 30, 2019   Page 7 of 9
       subsection (a)(1) of the statute and alleged that he “did knowingly or

       intentionally forcibly resist, obstruct or interfere with Zachary Miller, a law

       enforcement officer, while said officer was lawfully engaged in his duties as a law

       enforcement officer . . . .” Appellant’s Appendix Volume II at 74-75. Further, the

       law enforcement officers in this case relied upon more than the mere existence of a

       disturbance or report of a disturbance in ordering Woodson to stop. The record

       reveals that the officers spoke with R.H. for several minutes before speaking

       with Woodson through a window. The officers asked Woodson to exit the

       residence, but he initially did not do so. Woodson opened the door, Officer

       Swoveland attempted to approach him, and Woodson shut the door. The

       officers did not believe Woodson was going to exit the residence and Officer

       Miller spoke to a detective regarding a search warrant. Officer Miller testified

       that, through his investigation, he had decided that a crime had been

       committed, and Officer Swoveland similarly testified that, at the time Officer

       Miller told Woodson to turn around and place his hands behind his back, he

       believed that a crime had been committed. After Officer Miller attempted to

       grab Woodson’s wrist, Woodson pulled his arm back, and when Officer Miller

       attempted to grab him again, Woodson turned around and “took both of his

       hands and pushed Officer Miller in the upper chest,” causing the officer to fall

       with Woodson and injure his elbow. Transcript Volume 2 at 16.


[12]   Based upon our review of the evidence as set forth above and in the record, we

       conclude that the State presented evidence of a probative nature from which a




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2708 | April 30, 2019   Page 8 of 9
       trier of fact could find beyond a reasonable doubt that Woodson committed the

       crime of resisting law enforcement as a level 6 felony.


[13]   For the foregoing reasons, we affirm Woodson’s conviction.


[14]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2708 | April 30, 2019   Page 9 of 9
