                                                    Oct 30 2014, 6:36 am

FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

HILARY BOWE RICKS                               GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                JODI KATHRYN STEIN
                                                Deputy Attorney General
                                                Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

M.J.,                                           )
                                                )
        Appellant-Respondent,                   )
                                                )
               vs.                              )       No. 49A05-1403-JV-121
                                                )
STATE OF INDIANA,                               )
                                                )
        Appellee-Petitioner.                    )


                     APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Marilyn Moores, Judge
                         The Honorable Scott Stowers, Magistrate
                            Cause Nos. 49D09-1307-JD-1954
                                 49D09-1206-JD-1621
                                 49D09-1209-JD-2393
                                 49D09-1305-JD-1286


                                     October 30, 2014

                               OPINION - FOR PUBLICATION


DARDEN, Senior Judge
       M.J. appeals his adjudication as a delinquent child for committing resisting law

enforcement as a Class A misdemeanor if committed by an adult.

       We reverse M.J.’s adjudication and vacate the February 19, 2014, dispositional

orders in Cause Numbers 49D09-1206-JD-1621 (CN 1621), 49D09-1209-JD-2393 (CN

2393), and 49D09-1305-JD-1286 (CN 1286), which modified prior orders and include

suspended commitments to the Indiana Department of Correction.

       The sole issue for our review is whether there is sufficient evidence to support M.J.’s

adjudication as a delinquent child.

       In the late morning hours of July 9, 2013, Indianapolis Metropolitan Police Officers

Brian Spengler and Vincent Leeds were dispatched to an apartment complex on the south

side of Indianapolis to investigate a report of a suspicious person. The officers were

looking for a young black male wearing a white t-shirt who was “seen around a [w]hite

Ford SUV.” Tr. p. 7. The officers arrived and looked around the complex but did not see

anything or anyone in the area. Officer Spengler checked the SUV’s license plate and

learned that it was a stolen vehicle.

       About thirty minutes after receiving the original dispatch, while the officers were

standing by the SUV, Officer Leeds noticed M.J., a young black male wearing a maroon

shirt, walking towards the officers with his head down looking at the ground. When he

looked up and saw the officers, M.J. immediately turned and headed east. He looked over

his shoulder at the officers, walked faster, and then began to run, which prompted Officer

Spengler to yell, “Police, come here!” Tr. p. 11. M.J. kept running, and when the officers



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lost sight of him, they activated the lights and sirens in their car and began looking for him.

The officers requested assistance, and police canines found M.J. hiding under some trees.

       On July 10, 2013, the State alleged that M.J. was a delinquent child for committing

resisting law enforcement, a Class A misdemeanor, if committed by an adult. As a result

of this allegation, the State filed petitions to modify the dispositional decrees in the

following three prior adjudications: 1) CN 1621 – auto theft, a Class D felony if committed

by an adult; 2) CN 2393 – theft, a Class D felony if committed by an adult; and 3) CN 1286

– theft, a Class D felony if committed by an adult.

       At a January 2014 hearing, Officer Spengler testified that he attempted to stop M.J.

because the young man ran. M.J. testified that he lived in a house in a nearby neighborhood

and cut through the apartment complex for a quicker route to the bus stop. He explained

that on July 9, 2013, his family overslept, and he was running to catch the bus to the Boys

and Girls Club. He further explained that he hid under the trees when he heard the sirens

because he “didn’t want to be a part of” whatever was happening. Tr. p. 27. M.J.’s father

testified that he overslept the morning of July 9, and was not able to take M.J. to the Boys

and Girls Club.

       On February 19, 2014, the juvenile court found that M.J. committed resisting law

enforcement, a Class A misdemeanor if committed by an adult, and placed him on

probation with a suspended commitment to the Indiana Department of Correction. The

juvenile court also modified the orders in CNs 1621, 2393, and 1286 to include the same

suspended commitment to the Indiana Department of Correction.               M.J. appeals his

adjudication and the modified orders in CNs 1621, 2393, and 1286.


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       M.J. argues that there is insufficient evidence to support his adjudication as a

delinquent child for committing resisting law enforcement as a Class A misdemeanor if

committed by an adult. Specifically, he contends that he:

       had an absolute right to turn and walk the other way when he saw Officers
       Spengler and Leeds. When they began to yell stop and chase him, the Fourth
       Amendment was implicated, and once that happened they needed a
       reasonable and articulable suspicion that M.J. was, had been, or was about to
       be engaged in criminal activity before [they] could stop him. . . . Because
       they did not, the True Finding and Dispositional Order on . . . Resisting Law
       Enforcement, a Class A misdemeanor if committed by an adult, must be
       vacated.

Appellant’s Br. p. 16.

       To convict M.J. of resisting law enforcement as charged, the State was required to

prove beyond a reasonable doubt that M.J. fled from law enforcement officers after the

officers, by visible or audible means, identified themselves and ordered M.J. to stop. See

Griffin v. State, 997 N.E.2d 375, 379 (Ind. Ct. App. 2013), trans. denied, (citing Ind. Code

§ 35-44-3-3). Although the resisting law enforcement statute, on its face, does not

expressly require the order to stop to be lawful, in order to interpret the statute as

constitutional, the Indiana Supreme Court has explained that such an order to stop must be

understood to require probable cause or reasonable suspicion. Gaddie v. State, 10 N.E.3d

1249, 1254, 55 (Ind. 2014). Absent proof that an officer’s order to stop rests on probable

cause or specific, articulable facts that would lead the officer to reasonably suspect that

criminal activity was afoot, the evidence will be insufficient to establish the offense of

resisting law enforcement. Id. at 1255.

       For example, in Gaddie, a police officer was dispatched to a disturbance at an

Indianapolis residence. When he arrived, he saw several people standing on the front porch

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and in the front yard screaming and yelling. The officer also saw Gaddie and several others

walking along a side yard toward the back of the house. The officer told the group to return

to the front yard. Everyone but Gaddie complied. The officer identified himself as a police

officer and told Gaddie to stop. Gaddie continued walking toward an alley, and the officer

followed him and repeated his order to stop. Gaddie looked back at the officer two or three

times but continued walking. The officer, who had not seen Gaddie commit a crime before

ordering him to stop, radioed for help, and another officer stopped Gaddie at the next street

over. The trial court convicted Gaddie of resisting law enforcement.

       On appeal, Gaddie argued that there was insufficient evidence to support his

conviction because the officer did not have reasonable suspicion to believe that criminal

activity had occurred or was afoot. The Indiana Supreme Court agreed. Specifically, the

Court explained that the officer was dispatched to a disturbance and had not seen the

defendant committing a crime before ordering him to stop. Id. at 1255. The report of a

disturbance, without more, is not a sufficient basis upon which to conduct an investigatory

stop. Id. Further, refusal to cooperate, without more, does not furnish the minimal level

of justification needed for a detention or seizure. Id. at 1256. (Citing Florida v. Bostick,

501 U.S. 429, 437, 111 S.Ct. 2382, 2387, 115 L.Ed.2d 389, 400 (1991)). The Indiana

Supreme Court therefore reversed Gaddie’s conviction. Id.

       Similarly, in Griffin, 997 N.E.2d at 375, Griffin was walking down the street when

a police officer passed him in a marked car. When the officer looked in his rearview mirror,

Griffin appeared to be gesturing at him. Believing Griffin might be unstable, the officer

called for backup as he turned his car around and drove back to Griffin. Officer Miller got


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out of his car and asked Griffin what was happening. Griffin, shouting in a somewhat

incoherent manner, accused Miller of trying to run over him. Griffin, who was standing

fifteen feet away from the officer, threw two shadow punches and ran away from the

officer. The officer pursued Griffin, shouting at him to stop and warning him that he would

use his taser if necessary. Griffin did not stop, and the officer deployed his taser, which

caused Griffin to fall to the ground. Griffin stood up and struck the officer as the officer

attempted to handcuff him. Several officers arrived, tackled Griffin, tased him four times,

and eventually handcuffed him. The trial court convicted Griffin of battering the officer

and of resisting law enforcement in relation to disregarding the officer’s command to stop.

       On appeal, Griffin argued that there was insufficient evidence to support his

conviction of resisting law enforcement because the evidence did not reflect any suggestion

of criminal activity afoot. This Court agreed and noted that although Griffin appeared to

be unstable and threw shadow punches from a considerable distance before running away,

none of his actions suggested any criminal offense.         Id. at 380. Without evidence

demonstrating grounds for detention, we reversed Griffin’s conviction for resisting law

enforcement. Id.

       The facts before us are similar to those in Gaddie and Griffin. Here, the officers

were dispatched to an apartment complex on the south side of Indianapolis to investigate a

report of a suspicious young black male wearing a white t-shirt who was seen “around” a

white SUV. Tr. p. 7. The officers found nothing when they arrived at the complex. It was

thirty minutes after the officers were dispatched to the scene that they noticed M.J., a young

black male wearing a maroon t-shirt, approaching them in the distance. When M.J. looked


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up and saw the officers, he turned, looked over his shoulder, began to walk faster, and then

began to run, which prompted Officer Spengler to yell at M.J. to stop. Here, as in Gaddie

and Griffin, none of M.J.’s actions suggested there was any criminal activity afoot.

Without evidence demonstrating grounds for detention, we reverse M.J.’s adjudication as

a delinquent. We also vacate the February 19, 2014 dispositional orders entered in CN678-

098s 1621, 2393, and 1286.

       Reversed in part and vacated in part.

Friedlander, J., and May, J., concur.




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