MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                  Mar 23 2018, 10:06 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
Timothy J. Burns                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Desmond Bland,                                           March 23, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1710-CR-2421
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy M. Jones,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G08-1612-CM-47184



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018               Page 1 of 6
                                           Case Summary
[1]   Desmond Bland (“Bland”) appeals his conviction for Resisting Law

      Enforcement, as a Class A misdemeanor,1 presenting the sole issue of whether

      there is sufficient evidence of force to support the conviction. We affirm.



                                Facts and Procedural History
[2]   On December 8, 2016, Marcus Triplett (“Triplett”), a behavioral specialist

      employed by Northwest High School in Indianapolis, observed a man talking

      with some students in the middle school wing of the building. The man, later

      identified as Bland, told Triplett that he was on school property to pick up a

      cousin. However, Bland had no visitor’s pass and could not provide the

      cousin’s last name. Triplett directed Bland to leave the building and Bland

      complied; Bland then re-entered the building through another door. Observing

      this, Triplett summoned the school police.


[3]   Indianapolis School Police Officers Dallas Gaines and Jeffrey Brunner

      responded. Officer Gaines asked Bland to identify himself; Bland said that he

      was “D” and was picking up a cousin. (Tr. Vol. II, pg. 52.) Officer Gaines

      then advised Bland that he could not be inside the school without a pass and an




      1
          Ind. Code § 35-44.1-3-1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018   Page 2 of 6
      escort; he also directed Bland to remove his right hand from his pocket. Bland

      responded “why?” (Tr. Vol. II, pg. 74.)


[4]   Bland had assumed a stance that Officer Gaines described as “blading” his

      body and Officer Gaines suspected that Bland was attempting to conceal

      something. (Tr. Vol. II, pg. 54.) Officer Gaines again asked Bland to remove

      his hand, but Bland did not comply. Officer Gaines “took [Bland] to the

      ground” and Bland fell face-down. (Tr. Vol. II, pg. 75). After the fall, Bland

      shoved his left hand under his body. Together, the officers took control of

      Bland’s hands and placed handcuffs on him. During the incident, Bland tensed

      his arms and tried to pull away. Inside Bland’s pockets were flyers about a shoe

      exchange.


[5]   On December 8, 2016, the State charged Bland with Resisting Law

      Enforcement, as a Class A misdemeanor. On September 25, 2017, a jury found

      him guilty as charged. Bland was sentenced to one year of imprisonment, with

      361 days suspended. He was also ordered to pay a $500.00 fine. Bland now

      appeals.



                                Discussion and Decision
[6]   In reviewing a sufficiency of the evidence claim, we do not reweigh the

      evidence or assess the credibility of witnesses. K.W. v. State, 984 N.E.2d 610,

      612 (Ind. 2013). We look to the evidence and reasonable inferences drawn

      therefrom that support the judgment, and affirm if there is probative evidence


      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018   Page 3 of 6
      from which a reasonable factfinder could have found the defendant guilty

      beyond a reasonable doubt. Id. We will reverse if there is no evidence or

      reasonable inference to support any one of the necessary elements of the

      charged offense. Id.


[7]   The basic offense of resisting law enforcement has five essential elements. See

      id. Pursuant to Indiana Code Section 35-44.1-3-1, a defendant has committed

      resisting law enforcement when he (1) knowingly or intentionally (2) forcibly

      (3) resisted, obstructed, or interfered with (4) a law enforcement officer (5)

      while the officer was lawfully engaged in the execution of the officer’s duties.

      Id. One “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. (citing Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993)).


[8]   The level of force need not rise to the level of mayhem, but the statute does not

      demand complete passivity. Id. Merely walking away from a law-enforcement

      encounter, leaning away from an officer’s grasp, or twisting and turning a little

      bit against an officer’s actions are examples of conduct that do not amount to

      “forcible” resistance. Id. It is error as a matter of law to conclude that forcible

      resistance includes all actions that are not passive. Spangler, 607 N.E.2d at 724.

      However, stiffening one’s arms when an officer grabs hold to position them for

      cuffing “would suffice” to “constitute use of force.” Graham v. State, 903

      N.E.2d 963, 966 (Ind. 2009).




      Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018   Page 4 of 6
[9]    Here, the State elicited testimony from Triplett and both arresting officers.

       Triplett described the interaction he observed as the officers “wrestling” with

       Bland and Bland “struggling.” (Tr. Vol. II, pgs. 37-38). Officer Gaines

       described Bland’s movements after he was taken to the floor, as follows: Bland

       “tensed him arms,” pulled away, and “was trying to stiffen his body.” (Tr. Vol.

       II, pg. 56.) Officer Brunner testified that Bland tried to “jerk away” from

       Officer Gaines. (Tr. Vol. II, pg. 75.)


[10]   Bland argues that he was “completely surprised” by being taken to the floor and

       was rendered unable to resist. Appellant’s Brief at 10. He claims that the State

       lacked evidence that he reacted with force, akin to the evidentiary deficiency

       found in Colvin v. State, 916 N.E.2d 306, 309 (Ind. Ct. App. 2009) (officers

       restrained defendant after he refused to remove his hands from his pockets but

       there was “no evidence that [defendant] stiffened his arms or otherwise forcibly

       resisted the officers”) and Berberena v. State, 914 N.E.2d 780, 782 (Ind. Ct. App.

       2009) (defendant refused to comply with commands and the officer placed the

       defendant against a wall and struggled with him to place handcuffs; the

       testimony was ambiguous as to whether only the officer acted forcibly), trans.

       denied. We disagree with Bland’s contention that the State presented no

       evidence of force on his part. There was testimony that he struggled and

       attempted to pull away from an officer’s grasp. As such, there is sufficient

       evidence to establish the essential element of force.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018   Page 5 of 6
                                               Conclusion
[11]   Sufficient evidence supports Bland’s conviction for Resisting Law Enforcement.


[12]   Affirmed.


       Crone, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1710-CR-2421 | March 23, 2018   Page 6 of 6
