MEMORANDUM DECISION
                                                                                     FILED
Pursuant to Ind. Appellate Rule 65(D),                                       Apr 06 2020, 11:49 am
this Memorandum Decision shall not be
                                                                                     CLERK
regarded as precedent or cited before any                                        Indiana Supreme Court
                                                                                    Court of Appeals
court except for the purpose of establishing                                          and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Christopher Taylor-Price                                  Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Josiah Swinney
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronald Leon Jenkins,                                      April 6, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2520
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable David Certo, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          49G12-1810-CM-35480



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2520 | April, 6, 2020                           Page 1 of 10
                                                  Case Summary

[1]   Ronald Jenkins appeals his conviction for resisting law enforcement, a Class A

      misdemeanor. We affirm.


                                                          Issue

[2]   Jenkins raises one issue for our review, which we restate as whether the

      evidence is sufficient to convict Jenkins of resisting law enforcement, a Class A

      misdemeanor.


                                                          Facts

[3]   On October 15, 2018, law enforcement was dispatched to a disturbance 1

      between a male and a female on the 3900 block of East 31st Street in Marion

      County around 2:00 a.m. Officer Jade Pierson, with the Indianapolis

      Metropolitan Police Department, arrived at the scene in her fully marked police

      vehicle and full police uniform.


[4]   A witness pointed at a vehicle 2 parked in a yard and told Officer Pierson two

      people were physically fighting in the vehicle. As Officer Pierson approached



      1
        Officer Pierson could not recall whether the report was of a “physical disturbance”; however, according to
      Officer Pierson, when she arrived on the scene, the witnesses reported that individuals were “physically
      fighting in the car.” Tr. Vol. II p. 13.
      2
        The parties dispute whether Officer Pierson was directed toward a gray vehicle or a red vehicle. Officer
      Pierson’s police report, in the Appellant’s appendix, notes that the disturbance was reported in the red car.
      Officer Pierson initially testified she was pointed toward a gray vehicle; the deputy prosecutor then asked:
      “And, so, you were notified that the red car was the disturbance you were called out for. What happened
      next when you found out this information?” Tr. Vol. II p. 7. Officer Pierson, later at the trial, also indicated
      that the nearby witnesses “specifically pointed to that vehicle” Jenkins was inside but did not indicate the
      color of the vehicle. Id. at 10. Regardless of the color of the vehicle, our review of the record leads us to


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2520 | April, 6, 2020                      Page 2 of 10
      the vehicle, a second witness pointed to the same vehicle and reported two

      people fighting in the vehicle.


[5]   As Officer Pierson approached the vehicle, she noticed the rear passenger

      window was down and a person was moving under a blanket inside the vehicle.

      Officer Pierson knocked on the window and identified herself as law

      enforcement, and a man, later identified as Jenkins, lifted his head from

      underneath the blanket. Officer Pierson asked Jenkins if he was okay and if

      there was anyone else in the vehicle with him. Jenkins responded that he was

      okay and that he was alone and sleeping.


[6]   Officer Pierson asked Jenkins for his name, to which Jenkins told Officer

      Pierson he would not provide his “f***ing name.” Tr. Vol. II p. 7. Officer

      Pierson asked Jenkins several more times for his name, and Jenkins continued

      to refuse to provide his name. Officer Ryan Salisbury arrived on the scene, and

      Jenkins continued to move under the blanket. To Officer Pierson, it appeared

      as if Jenkins was trying to conceal himself; thus, “for [officer] safety,” the

      officers opened the back door of the vehicle and asked Jenkins to get out of the

      vehicle. Id. When Jenkins got out of the vehicle, he was still “not really

      complying” with the officers’ requests. Id. The officers attempted to place

      Jenkins in handcuffs to “investigate further,” and Jenkins “jerked his arms




      conclude that Officer Pierson was only investigating and only pointed toward one vehicle. It does not appear
      there were two separate vehicles on the scene of Officer Pierson’s investigation.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2520 | April, 6, 2020                  Page 3 of 10
       away several times and then tensed up his body making it difficult for [officers]

       to place him in cuffs.” Id. at 7-8.


[7]    Officers then asked Jenkins to sit on the ground several times; Jenkins refused,

       and officers assisted Jenkins to the ground using a “leg sweep technique.” Id. at

       8. Jenkins continued to resist once on the ground as officers attempted to

       obtain identification and began yelling loudly. Officers told Jenkins to be quiet,

       but he continued to yell, drawing the attention of several neighbors.


[8]    On October 15, 2018, Jenkins was charged with Count I, resisting law

       enforcement, a Class A misdemeanor, and Count II, disorderly conduct, a

       Class B misdemeanor. Jenkins’ bench trial was held September 26, 2019.


[9]    During the trial, the deputy prosecutor asked Officer Pierson if she was

       “lawfully engaged in [her] duties to investigate during [the] entire occurrence,”

       to which Officer Pierson responded affirmatively. Id. at 9. Officer Pierson

       testified that she was still investigating when Jenkins got out of the vehicle. On

       cross-examination, Officer Pierson agreed that there was no emergency during

       the investigation.


[10]   At the end of the State’s presentation of evidence, Jenkins moved for a motion

       to dismiss under Indiana Trial Rule 41(b). Jenkins argued in his Rule 41(b)

       motion that the disturbance call was not a specific, articulable fact that

       supported a finding of reasonable suspicion to support Officer Pierson’s

       investigative stop of Jenkins. After the trial court denied the motion, Jenkins

       testified in his defense. Jenkins testified that: (1) he was asleep when the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2520 | April, 6, 2020   Page 4 of 10
       officers arrived but recalled being pulled to his feet; (2) Jenkins was working on

       his girlfriend’s car, which had broken down and was parked in the front yard of

       his mother’s home; and (3) Jenkins’ mother brought him food, a pillow, and a

       blanket just moments prior to Jenkins going to sleep in the vehicle.


[11]   At the close of the evidence, the trial court found Jenkins guilty of Count I, and

       not guilty of Count II. The trial court sentenced Jenkins to three hundred and

       sixty-five days in the Marion County jail with three hundred and sixty-three

       days suspended. Jenkins now appeals his conviction.


                                                     Analysis

[12]   Jenkins argues the evidence presented was insufficient to support his

       conviction. When there is a challenge to the sufficiency of the evidence, “[w]e

       neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51

       N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind.

       1985), cert. denied), cert. denied. Instead, “we ‘consider only that evidence most

       favorable to the judgment together with all reasonable inferences drawn

       therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the

       judgment if it is supported by ‘substantial evidence of probative value even if

       there is some conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at

       84); see also McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that,

       even though there was conflicting evidence, it was “beside the point” because

       that argument “misapprehend[s] our limited role as a reviewing court”). “We

       will affirm the conviction unless no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt.” Love v. State, 73
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2520 | April, 6, 2020   Page 5 of 10
       N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007)).


[13]   Pursuant to Indiana Code Section 35-44.1-3-1(a)(1), for a defendant to be

       convicted of resisting law enforcement, the State must prove that the defendant

       knowingly or intentionally “forcibly resists, obstructs, or interferes with a law

       enforcement officer . . . while the officer is lawfully engaged in the execution of

       the officer’s duties.” Jenkins’ specific argument is that the State failed to

       present sufficient evidence that Officer Pierson was lawfully engaged in her

       duties when conducting the investigatory stop and subsequently placing Jenkins

       in handcuffs because she did not have reasonable suspicion.


[14]   “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.” Woodson v. State, 123 N.E.3d 175, 178 (Ind. Ct. App. 2019) (citing

       Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App. 2000), reh’g denied, trans.

       denied). Questions of individual liberties, however, are at issue. Under Terry v.

       Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868 (1968), an officer may “stop and briefly

       detain a person for investigative purposes,” so long as he can “point to specific

       and articulable facts which, taken together with rational inferences from those

       facts, reasonably warrant that intrusion.” Kelly v. State, 997 N.E.2d 1045, 1051

       (Ind. 2013) (internal citations omitted). “A Terry stop, thus, is permissible

       without a warrant or probable cause if the officer has reasonable suspicion to

       justify the stop.” Id.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2520 | April, 6, 2020   Page 6 of 10
[15]   In making his arguments, Jenkins compares his case to Gaddie v. State, 10

       N.E.3d 1249 (Ind. 2014). In Gaddie, Gaddie was charged with resisting law

       enforcement for fleeing from law enforcement. The police officer was

       responding to a call regarding a “disturbance” and arrived at a house with

       several people outside. Gaddie and a few other individuals were walking along

       the side of the house. Gaddie, 10 N.E.3d at 1252. One of the officers attempted

       to gather the group to the front of the house and asked Gaddie to join the

       group. Instead of complying with the officers’ requests, Gaddie walked away.

       At the time, officers did not see Gaddie commit a crime, and Gaddie was not

       under arrest. Police ordered Gaddie to stop, and Gaddie failed to comply with

       their orders. Gaddie was charged with resisting law enforcement by fleeing

       from officers.


[16]   In resolving whether there was sufficient evidence to sustain Gaddie’s

       conviction, our Supreme Court held that evidence of reasonable suspicion or

       probable cause that criminal activity was afoot was required in order for it to be

       a crime for Gaddie to walk away from law enforcement when ordered to stop.

       In assessing reasonable suspicion, our Supreme Court also held that a report of

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

       investigatory stop,” and that specific, articulable facts are required. Id. at 1255.


[17]   The State argues this case is more analogous to Woodson, 123 N.E.3d at 175. In

       Woodson, officers responded to a call regarding a disturbance and, after speaking

       with a woman, Woodson appeared at the window and began speaking with

       officers through the window. Sometime after asking Woodson to exit the

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2520 | April, 6, 2020   Page 7 of 10
       residence, which he would not do, Woodson left the residence and began

       walking down the sidewalk. As he walked past the officers, the officers told

       Woodson to stop; Woodson did not comply. Officers grabbed Woodson by the

       arm, and Woodson began jerking away from the officers’ grasp. A scuffle

       ensued, and Woodson was charged, among other things, with resisting law

       enforcement, a Class A misdemeanor.


[18]   Woodson argued the evidence was insufficient that officers were lawfully

       engaged in their duties. Specifically, Woodson argued the record contained

       “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.” Woodson, 123 N.E.3d at 177. In

       affirming Woodson’s conviction, a panel of our Court noted that the officers in

       Woodson relied on significantly more facts than a call regarding a disturbance.


[19]   We agree with the State that Jenkins’ case is more similar to Woodson than

       Gaddie. 3 Officer Pierson’s investigation was not merely based on the call of a

       disturbance alone. Instead, Officer Pierson had the following specific and

       articulable facts: (1) a disturbance was reported on a specific block in

       Indianapolis; (2) after arriving on the scene, Officer Pierson was directed to the

       vehicle Jenkins was inside by two witnesses who claimed two persons were

       physically fighting inside the vehicle; (3) Officer Pierson approached the vehicle



       3
        Aside from the factual differences, Gaddie is also distinguishable because at issue was Indiana Code Section
       35-44.1-3-1(a)(3) (2012), which made it a crime to flee from law enforcement.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2520 | April, 6, 2020                   Page 8 of 10
       and found Jenkins under a blanket; (4) Jenkins appeared to be concealing

       himself from Officer Pierson’s vision; (5) after asking Jenkins his name, Jenkins

       responded angrily, telling officers he would not give them his “f***ing name”,

       tr. vol. II p. 7; (6) Jenkins was still not complying when he exited the vehicle;

       and (7) Jenkins resisted law enforcement attempting to detain him for

       investigation. While it is possible Officer Pierson did not have reasonable

       suspicion after the initial call, as was the case in Gaddie, the additional specific,

       articulable facts warranted a continuing investigation. Based on these same

       specific, articulable facts, we reject Jenkins’ argument that Officer Pierson

       should have suspended the investigation after realizing there was no

       emergency.


[20]   Moreover, as it relates to the officers placing Jenkins in handcuffs, Officer

       Pierson was permitted to do so because of Jenkins’ continued noncooperation. 4

       See Perez v. State, 981 N.E.2d 1242, 1249 (Ind. Ct. App. 2013) (finding that

       police have the “legal right to take reasonable steps to stabilize a situation”

       during an investigation, including “placing an individual in handcuffs to enable

       the officers to conduct their investigation and ensure their own safety or the

       safety of others”) (citations omitted), trans. denied. At the time officers placed




       4
         To the extent Jenkins argues that Indiana Code Section 35-41-3-2(i), the provision regarding “[u]se of force
       to protect person or property,” would allow him to resist an unlawful arrest, this argument is waived, as it
       was raised for the first time in Jenkins’ reply brief. See Appellant’s Reply Br. p. 11. See Jones v. State, 22
       N.E.3d 877 (Ind. Ct. App. 2014) (noting that parties may not raise issues for the first time in their reply
       briefs).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2520 | April, 6, 2020                    Page 9 of 10
       Jenkins in handcuffs, the officers’ investigation was still ongoing based on the

       specific, articulable facts discussed above.


[21]   The evidence was sufficient to support the fact finder’s conclusion that Officer

       Pierson was lawfully engaged in her duties during the investigatory stop of

       Jenkins.


                                                   Conclusion

[22]   The State presented sufficient evidence to support Jenkins’ conviction for

       resisting law enforcement. We affirm.


[23]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2520 | April, 6, 2020   Page 10 of 10
