Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                                      Jun 06 2014, 8:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MICHAEL R. FISHER                                  GREGORY F. ZOELLER
Marion County Public Defender                      Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                              LARRY D. ALLEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CHARLES HOWLETT,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 49A04-1312-CR-600
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Clark H. Rogers, Judge
                            Cause No. 49F25-1307-FD-47459



                                          June 6, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       On July 20, 2013, members of the Indianapolis Metropolitan Police Department

(“IMPD”) responded to the scene of an alleged assault. Officer Michael Anderson, a trained

evidence technician, was dispatched to the scene to assist in the investigation. Upon arriving

at the scene, Officer Anderson learned that the victim, Jeffrey Hack, reported that his

neighbor, Appellant-Defendant Charles Howlett, broke into Hack’s home, hit him several

times, and bound Hack’s hands and mouth with tape. At some point, Officer Anderson

noticed a man matching the description of Howlett standing in what Hack described as

Howlett’s front yard. Officer Anderson approached Howlett. Officer Anderson grabbed

Howlett’s left arm after Howlett attempted to walk away from Officer Anderson and ignored

Officer Anderson’s instruction to stop. Howlett shoved Officer Anderson’s hand off of his

shoulder and cursed at Officer Anderson. Howlett was subsequently arrested.

       Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged Howlett

with a number of offenses, including one count of Class A misdemeanor resisting law

enforcement. Following a bench trial, the trial court found Howlett guilty of the resisting law

enforcement charge and not guilty of the remaining charges and imposed a 365-day sentence.

The trial court gave Howlett credit for time served and suspended the remainder of the

sentence. On appeal, Howlett contends that the State did not present sufficient evidence to

sustain his conviction for Class A misdemeanor resisting law enforcement. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On July 20, 2013, Hack called IMPD to report that his neighbor, Howlett, broke into

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Hack’s home, hit Hack several times, and bound Hack’s hands and mouth with tape. Officer

Anderson, a trained evidence technician, was dispatched to the scene to assist in the

investigation. Upon arriving at the scene, Officer Anderson met with Officer Ron Sayles to

discuss the investigation, including the evidence that needed to be gathered. Officer Sayles

informed Officer Anderson that Hack identified Howlett as his assailant and informed the

investigating officers of which home belonged to Howlett. Officer Anderson subsequently

took pictures of Hack and the damage to the front door of Hack’s residence. As Officer

Anderson, who was in full police uniform, was putting his camera equipment into the trunk

of his marked police cruiser, he saw a man standing in what Hack indicated was Howlett’s

front yard taking pictures of the police officers. The man also matched the description of

Howlett given by Hack.

       Recognizing that Howlett was a suspect in the ongoing assault investigation, Officer

Anderson approached Howlett, who was still standing in his front yard, and told Howlett that

the officers needed to speak to him regarding the ongoing investigation. Howlett attempted

to walk away from Officer Anderson, even after Officer Anderson instructed him to stop.

Officer Anderson grabbed Howlett’s left arm and began to walk with Howlett back towards

the street. Howlett then “shoved [Officer Anderson’s] hand off of his arm and said get the

f[***] off of me.” Tr. pp. 18, 20-21. Howlett was subsequently placed under arrest.

       On July 23, 2013, the State charged Howlett with Class D felony criminal

confinement, Class D felony residential entry, Class D felony intimidation, Class D felony

obstruction of justice, Class A misdemeanor battery on an officer, Class A misdemeanor

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resisting law enforcement, Class B misdemeanor battery, and three counts of Class A

misdemeanor invasion of privacy. On October 30, 2013, the trial court conducted a bench

trial during which Howlett admitted that he “did jerk away from” Officer Anderson. Tr. p.

37. Following the bench trial, the trial court found Howlett guilty of Class A misdemeanor

resisting law enforcement. The trial court found Howlett not guilty of each of the remaining

charges. On November 13, 2013, the trial court sentenced Howlett to a term of 365 days.

The trial court gave Howlett credit for time served prior to sentencing and suspended the

remainder of the sentence. This appeal follows.

                             DISCUSSION AND DECISION

       Howlett contends that the evidence is insufficient to sustain his conviction for Class A

misdemeanor resisting law enforcement.

       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. It is the fact-finder’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. To preserve this
       structure, when appellate courts are confronted with conflicting evidence, they
       must consider it most favorably to the trial court’s ruling. Appellate courts
       affirm the conviction unless no reasonable fact-finder could find the elements
       of the crime proven beyond a reasonable doubt. It is therefore not necessary
       that the evidence overcome every reasonable hypothesis of innocence. 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) (citations, emphasis, and quotations

omitted). “In essence, we assess only whether the verdict could be reached based on

reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968


                                              4
N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Upon review, appellate courts do not

reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d

433, 435 (Ind. 2002).

       The offense of resisting law enforcement is governed by Indiana Code section 35-44-

3-3, which provides, in relevant part, that “(a) A person who knowingly or intentionally: (1)

forcibly resists, obstructs, or interferes with a law enforcement officer … while the officer is

lawfully engaged in the execution of the officer’s duties … commits resisting law

enforcement, a Class A misdemeanor.” The word “forcibly” modifies “resists, obstructs, or

interferes,” making force an element of the offense. See Graham v. State, 903 N.E.2d 963,

965 (Ind. 2009); Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). Thus, to convict

Howlett of Class A misdemeanor resisting law enforcement, the State needed to prove that

Howlett: (1) knowingly or intentionally (2) forcibly resisted, obstructed, or interfered with

Officer Anderson (3) while Officer Anderson was lawfully engaged in the execution of his

duties. One “forcibly resists,” for purposes of forcibly resisting law enforcement, when one

uses “strong, powerful, violent means” to evade a law enforcement official’s rightful exercise

of his or her duties. Graham, 903 N.E.2d at 965; Spangler, 607 N.E.2d at 726.

       In Graham, the Indiana Supreme Court held that in determining that an individual

forcibly resisted, the force involved need not rise to the level of mayhem, and discussed with

approval this court’s determination in Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App. 2005),

that a defendant had forcibly resisted law enforcement officers by “push[ing] away with his

shoulders while cursing and yelling” as the officer attempted to search him and by

                                               5
“stiffen[ing] up” as officers attempted to put him into a police vehicle, requiring the officers

to “get physical in order to put him inside.” Graham, 903 N.E.2d at 965-66. In Glenn v.

State, 999 N.E.2d 859, 862 (Ind. Ct. App. 2013), this court concluded that the defendant

exhibited sufficient force to sustain her conviction for resisting law enforcement when the

defendant “on more than one occasion, ‘aggressively’ tried to pull away” from the arresting

officer. In Lopez v. State, 926 N.E.2d 1090, 1094 (Ind. Ct. App. 2010), trans. denied, this

court concluded that the defendant exhibited sufficient force to sustain his conviction for

resisting law enforcement when the defendant refused to stand or uncross his arms upon

being ordered to do so by the arresting officer and attempted to pull away from the arresting

officer, requiring the officer to use physical force to arrest him. Likewise, in J.S. v. State,

843 N.E.2d 1013, 1017 (Ind. Ct. App. 2006), trans. denied, this court concluded that the

evidence was sufficient to sustain the juvenile’s adjudication for what would be resisting law

enforcement if committed by an adult when the evidence demonstrated that the juvenile

“pulled,” “yanked,” and “jerked” away from the officer, and was “flailing her arms,”

“squirming her body,” and “making it impossible for [the officer] to hold her hands.”

       Howlett claims on appeal that the evidence is insufficient to sustain a determination

that he forcibly resisted Officer Anderson. The evidence, however, demonstrates that

Howlett, a suspect in the ongoing assault investigation, used force to resist Officer

Anderson’s attempt to detain Howlett. Officer Anderson approached Howlett, who was

standing in his front yard, and told Howlett that the officers needed to speak to him regarding

the ongoing investigation. Howlett attempted to walk away from Officer Anderson, even

                                               6
after Officer Anderson instructed him to stop. Officer Anderson grabbed Howlett’s left arm

and began to walk back towards the street. Howlett then “shoved [Officer Anderson’s] hand

off of his arm and said get the f[***] off of me.” Tr. pp. 18, 20-21. In addition, Howlett

subsequently admitted at trial that he “did jerk away from” Officer Anderson. Tr. p. 37. We

conclude that Howlett’s act of jerking away from Officer Anderson or shoving Officer

Anderson’s hand off his shoulder while cursing at Officer Anderson is sufficient to prove

that Howlett forcibly resisted Officer Anderson.

       Howlett also claims that the evidence is insufficient to sustain a determination that

Officer Anderson was lawfully engaged in the execution of his duties when he approached

Howlett. In support, Howlett argues that Officer Anderson had no reason to suspect him of

any wrongdoing and, as such, could not lawfully detain Howlett. Thus, Howlett asserts that

his encounter with Officer Anderson was nothing more than a consensual encounter and, as

such, he was entitled to exert minimal resistance to protect himself from the unlawful entry

onto his property by Officer Anderson. Howlett’s argument, however, is without merit as the

evidence demonstrates that Officer Anderson had probable cause to believe that Howlett was

a suspect in an ongoing police investigation. See generally Robles v. State, 510 N.E.2d 660,

664 (Ind. 1987) (providing that probable cause exists where facts and circumstances within

the knowledge of the officer, when based on reasonably trustworthy information, are

sufficient for a reasonable person to believe an offense has been committed by the

defendant).

       Again, after recognizing Howlett as the person described by Hack to be his attacker,

                                             7
Officer Anderson approached Howlett, who was standing in his front yard taking pictures of

police, and indicated that the officers needed to speak to him regarding the ongoing

investigation. Officer Anderson testified at trial that his “sole reason of going onto

[Howlett’s] property” was to apprehend the suspect of an alleged assault. Tr. p. 19. The

evidence demonstrates that, despite Howlett’s claim to the contrary, Officer Anderson had

probable cause to believe that Howlett had assaulted Hack and, as such, was lawfully

engaged in the execution of his police duties when he approached and detained Howlett. See

generally Robles, 510 N.E.2d at 664.

       The evidence presented at trial is sufficient to sustain the trial court’s determination

that Howlett forcibly resisted Officer Anderson while Officer Anderson was lawfully

engaged in the execution of his duties. Howlett’s claim to the contrary effectively amounts to

an invitation for this court to reweigh the evidence, which we will not do. See Stewart, 768

N.E.2d at 435.

       The judgment of the trial court is affirmed.

RILEY, J., and ROBB, J., concur.




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