MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
                                                                        Feb 04 2019, 10:31 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Deborah Markisohn                                         Curtis T. Hill, Jr.
Marion County Public Defender Agency                      Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                     Matthew B. MacKenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

R.R.,                                                     February 4, 2019
Appellant-Respondent,                                     Court of Appeals Case No.
                                                          18A-JV-1783
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marilyn A.
Appellee-Petitioner.                                      Moores, Judge
                                                          The Honorable Scott Stowers,
                                                          Magistrate
                                                          Trial Court Cause No.
                                                          49D09-1802-JD-197



Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019                 Page 1 of 12
                                           Case Summary
[1]   On February 2, 2018, R.R. inserted herself into a situation involving her

      boyfriend and several members of the Indianapolis Public Schools (“IPS”)

      police force. She was subsequently alleged to have committed what would be

      the following crimes if committed by an adult: (1) Count One – Level 6 felony

      intimidation, (2) Counts Two and Three – Level 6 felony resisting law

      enforcement, and (3) Counts Four through Six – Level 6 felony battery against

      a public safety official. Following a hearing, the juvenile court adjudicated

      R.R. delinquent after entering true findings as to the first three counts and not-

      true findings as to the remaining counts.


[2]   R.R. challenges the delinquent adjudication, arguing that the evidence was

      insufficient to sustain the true findings and that she could not have been found

      to have committed two separate acts of what would be resisting law

      enforcement if she were an adult. Consistent with a recent decision of the

      Indiana Supreme Court, we conclude that because R.R. was involved in only

      one altercation with police, she may only be found delinquent for committing

      one act of what would be resisting law enforcement if committed by an adult.

      We further conclude that the evidence is sufficient to sustain the juvenile court’s

      true findings for Counts One and Two. We therefore affirm in part, reverse in

      part, and remand the matter to the juvenile court with instructions for the

      juvenile court to vacate the true finding relating to Count Three.



                            Facts and Procedural History
      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019   Page 2 of 12
[3]   On February 2, 2018, Sheldon Floyd, an assistant principal at IPS’s Arsenal

      Technical High School (“Arsenal Tech”), was summoned by a teacher to

      handle a classroom incident involving R.R.’s boyfriend, Q.A. Floyd requested

      assistance from IPS police officers. R.R. approached while Floyd and the

      officers were talking with Q.A. Floyd instructed R.R. to “go to class, do not

      follow” as he, Q.A., and the officers made their way to the Dean’s office. Tr. p.

      9. R.R. did not follow Floyd’s instructions.


[4]   After entering the Dean’s office, Floyd and IPS police officers John Dunker,

      Fred McIntire, and Kevin Rogers attempted to calm Q.A. Shortly thereafter,

      R.R. aggressively entered the office, inserting herself into the situation. As R.R.

      entered, Q.A. became more agitated, balling his hands into fists and calling

      Floyd a “bi[***] as[*] ni[****].” Tr. p. 35. Officer Rogers restrained R.R.

      against a far wall in the office and instructed her not to interfere.


[5]   After Officer Rogers restrained R.R., she pushed away from him and the pair

      hit another wall before falling to the ground. R.R. was kicking, punching, and

      rolling around on the ground. She refused numerous instructions to put her

      hands behind her back. At some point during the altercation, she threatened to

      “cut” Officer Rogers. Tr. p. 37. Officers Dunker and Rogers were eventually

      able to subdue and handcuff R.R. During the struggle, Officer Rogers suffered

      a cut between his ring and pinkie fingers.


[6]   On February 13, 2018, the State filed a delinquency petition alleging that R.R.

      committed the following delinquent acts: (1) Count One – Level 6 felony


      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019   Page 3 of 12
      intimidation, (2) Counts Two and Three – Level 6 felony resisting law

      enforcement, and (3) Counts Four through Six – Level 6 felony battery against

      a public safety official. The juvenile court adjudicated R.R. to be a delinquent

      child following a June 1, 2018 evidentiary hearing, entering true findings on

      Counts One through Three and not true findings on Counts Four through Six.

      R.R. was subsequently placed on probation.



                                 Discussion and Decision
            I. Multiple Counts of Resisting Law Enforcement
[7]   The Indiana Supreme Court recently held that “the resisting law enforcement

      statute, as written, was intended to permit only one conviction for each act of

      resisting[.]” Paquette v. State, 101 N.E.3d 234, 239 (Ind. 2018). The Court

      reasoned that “resisting law enforcement is inherently an offense against

      authority, not the individual officers. So, whether a defendant resists one

      officer or twenty-five officers, the offense remains the same.” Id. at 239–40.

      Stated differently, “the offense that involves a single affray with police will

      continue to be a single harm to the peace and dignity of the State, regardless of

      how many other people are [injured].” Id. at 240.


[8]   In this case, the juvenile court determined that R.R. committed two counts of

      what would be Level 6 felony resisting law enforcement if she were an adult. It

      is undisputed that both of these counts stemmed from a single altercation with

      police. As such, pursuant to the Indiana Supreme Court’s opinion in Paquette,

      R.R. could only have been found to have committed one of these counts.
      Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019   Page 4 of 12
                                II. Sufficiency of the Evidence
[9]    R.R. challenges the sufficiency of the evidence to sustain the juvenile court’s

       true findings.


               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).


                                               A. Count One
[10]   R.R. challenges the juvenile court’s true finding that she committed what would

       be Level 6 felony intimidation if committed by an adult. Indiana Code section

       35-45-2-1(a)(2) provides that “[a] person who communicates a threat to another

       person, with the intent: … that the other person be placed in fear of retaliation

       for a prior lawful act … commits intimidation, a Class A misdemeanor.”

       However, the offense is a Level 6 felony if “the person to whom the threat is


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019   Page 5 of 12
       communicated … is a law enforcement officer[.]” Ind. Code § 35-45-2-

       1(b)(1)(B)(ii). Thus, in order to prove that R.R. committed what would be

       Level 6 felony intimidation if committed by an adult, the State was required to

       prove that R.R. communicated a threat to a law enforcement officer with the

       intent that the officer would be placed in fear of retaliation for a prior lawful

       act.


[11]   “Whether a communication is a threat is an objective question for the trier of

       fact.” Ajabu v. State, 677 N.E.2d 1035, 1041 (Ind. Ct. App. 1997), trans. denied.

       “Although direct communication to the intended victim is not required under

       the [i]ntimidation statute, communication such as to influence conduct or place

       a person in fear of retaliation is required.” Soucy v. State, 22 N.E.3d 683, 686

       (Ind. Ct. App. 2014). In determining whether the communication of a threat

       was sufficient to prove intimidation, we consider whether the individual knew

       or had good reason to believe that their threat would reach the threatened

       individual. See generally Ajabu, 677 N.E.2d at 1043 (providing that the evidence

       supported the conclusion that Ajabu used the media to communicate threats

       that he knew or had good reason to believe would reach the threatened

       individuals).


[12]   With regard to Count One, the delinquency petition alleged as follows:


               On or about the 2nd day of February, 2018, [R.R.] did
               communicate a threat to another person, to wit: Kevin Rogers, a
               person who is a law enforcement officer, to wit: to cut Officer
               Rogers, with the intent that said Kevin Rogers, be placed in fear


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019   Page 6 of 12
               of retaliation for a prior lawful act, to wit: having restrained
               [R.R.].


       Appellant’s App. Vol. II p. 17. The evidence clearly establishes that the threat

       of retaliation was made to Officer Rogers while he and R.R. were engaged in a

       struggle.


[13]   Officer Rodgers restrained R.R. against a wall in the school administrator’s

       office after R.R., in an aggressive manner, attempted to insert herself into a

       situation involving a school administrator, IPS police officers, and Q.A. After

       Officer Rogers restrained R.R. against the wall, R.R. pushed Officer Rogers and

       they “ended up going into another wall, before landing on the ground.” Tr. p.

       72. Once on the ground, the struggle continued as R.R. attempted to fight off

       Officer Rogers’s attempts to place her in handcuffs. Officer Dunker testified

       that he assisted Officer Rogers in restraining R.R. after he observed Officer

       Rogers struggling with R.R. and heard R.R. threaten to “cut” Officer Rogers.

       Tr. p. 37. Specifically, Officer Dunker heard R.R. say “I’ll cut you” to Officer

       Rogers during the struggle. Tr. p. 37.


[14]   R.R. challenges the sufficiency of the evidence to prove that the threat was

       made in retaliation for a prior lawful act, arguing that because the threat was

       made during the struggle between she and Officer Rogers, it was made

       contemporaneously with Officer Rogers’s lawful act of restraining her. The

       threat was made during a physical struggle between R.R. and Officer Rogers.

       The evidence indicates that R.R. initiated this struggle after Officer Rogers

       lawfully restrained her against the wall. One may therefore reasonably infer
       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019   Page 7 of 12
       that R.R. made the statement with the intent to place Officer Rogers in fear for

       his safety in retaliation for his prior lawful act of restraining her.


[15]   Furthermore, we are unconvinced by R.R.’s claims that the evidence is

       insufficient to sustain the juvenile court’s true finding merely because the record

       does not establish that Officer Rogers heard the threat. Neither party asked

       Officer Rogers during the evidentiary hearing if he heard the threat. However,

       the record indicates that R.R. was in close proximity to and was engaged in a

       physical struggle with Officer Rogers when she made the threat. The threat was

       overheard by Officer Dunker, who was standing nearby. Because R.R. made

       the threat at a volume level that was loud enough that Officer Dunker could

       hear it, one may reasonably infer that it was made loudly enough that Officer

       Rogers could have heard it as well. These facts support the reasonable

       inference that when R.R. communicated her threat, she had good reason to

       believe that her threat would reach Officer Rogers. As such, we conclude that

       the evidence is sufficient to sustain the juvenile court’s true finding. R.R.’s

       challenge to the sufficiency of the evidence effectively amounts to a request that

       we reweigh the evidence, which we will not do. See Stewart v. State, 768 N.E.2d

       433, 435 (Ind. 2002) (“We do not reweigh the evidence or assess the credibility

       of witnesses.”).


                                              B. Count Two
[16]   R.R. also challenges the juvenile court’s true finding that she committed what

       would be Level 6 felony resisting law enforcement if she were an adult. Indiana

       Code section 35-44.1-3-1(a)(1) provides that: “[a] person who knowingly or
       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019   Page 8 of 12
       intentionally … 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 … commits resisting law enforcement, a

       Class A misdemeanor[.]” However, the offense is a Level 6 felony if while

       committing the offense, the person “inflicts bodily injury on or otherwise causes

       bodily injury to another person[.]” Ind. Code § 35-44.1-3-1(b)(1)(B). Thus, in

       order to prove that R.R. committed what would be Level 6 felony resisting law

       enforcement if committed by an adult, the State was required to prove that R.R.

       inflicted bodily injury on Officer Rogers while forcibly resisting, obstructing, or

       interfering with Officer Rogers while he was engaged in the execution of his law

       enforcement duties.


[17]   With regard to Count Two, the delinquency petition alleged as follows:


               On or about the 2nd day of February, 2018, [R.R.] did knowingly
               or intentionally forcibly resist, obstruct or interfere with a law
               enforcement officer, or a person assisting a law enforcement
               officer, to wit: Kevin Rogers, while the officer was lawfully
               engaged in the execution of his duties as a law enforcement
               officer and [R.R.] inflicted bodily injury on Kevin Rogers, to wit:
               a cut to Officer Rogers’[s] hand.


       Appellant’s App. Vol. II, p. 17. R.R. argues that the evidence is insufficient to

       prove that she knowingly or intentionally inflicted a bodily injury on Officer

       Rogers. We disagree. During the altercation, R.R. threatened to cut Officer

       Rogers. The evidence establishes that Officer Rogers suffered a cut between his

       ring and pinkie fingers during this altercation with R.R. One may therefore


       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019   Page 9 of 12
       reasonably infer that R.R. intended to complete the threatened act and was

       responsible for Officer Rogers’s injury.


[18]   While not raised as an argument in Count One, R.R. also argues that the State

       failed to establish that she had “reason to know that [Officers] Dunker, Rogers

       and McIntire were law enforcement officers.” Appellant’s Br. p. 20.

       Specifically, R.R. asserts that “[t]he State presented no evidence whether the

       [IPS] police officers at [Arsenal Tech] that day were uniformed police officers,

       displayed a badge or had orally identified themselves as police officers.”

       Appellant’s Br. p. 20. Thus, R.R. claims that “[o]n the record presented, it is

       possible that R.R. did not know the men were police officers, rather than

       security guards, school-liaison officers, school resource officers, or other adults

       employed at the high school who do not fall under the gambit of the resisting

       law enforcement statute.”1 Appellant’s Br. p. 21 (citing K.W. v. State, 984

       N.E.2d 610, 613 (Ind. 2013) (distinguishing between off-duty law enforcement

       officers acting as liaison or resource officers and law enforcement officers

       performing law-enforcement duties and providing that the resisting law

       enforcement statute only applies to the latter)).


[19]   While the record indicates that Officers Dunker, McIntire, and Rogers were law

       enforcement officers performing law enforcement duties on the date in




       1
         While the quoted language from R.R.’s appellate brief includes the terms security guards in arguing that
       the State failed to prove that she resisted law enforcement, we note that authority cited by R.R. in support
       does not include any mention of the security guards.

       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019                  Page 10 of 12
question, the record does not indicate whether the officers were wearing full

police uniforms or badges or whether they introduced themselves as police

officers when they approached R.R. Officers Dunker, McIntire, and Rogers

each testified, however, that they had become familiar with R.R. and her

boyfriend through the course of their employment as IPS police officers at

Arsenal Tech. It is reasonable to infer that if the officers were familiar with

R.R., she was also familiar with them.2 This inference is supported by the fact

that at the time of the altercation, R.R. was in her second year at Arsenal Tech

and each of the officers had been stationed at Arsenal Tech for some time.3

Furthermore, even assuming that R.R. did not initially know that Officers

Dunker, McIntire, and Rogers were law enforcement officers, R.R. was

instructed to stop resisting at least five different times. The first of these

instructions should have been sufficient to alert her to the fact that Officers

Dunker, McIntire, and Rogers were law enforcement officers and that

continued resistance could lead to possible juvenile exposure. In light of the

totality of the evidence coupled with our deferential standard of review, we




2
  While we agree with R.R. that the State could easily have questioned the officers about whether they were
wearing their police uniforms or badges or otherwise identified themselves as police officers, we must note
that in challenging the juvenile court’s true finding for intimidation, R.R. does not argue that Officer Rogers’s
act of restraining her was not lawful. This fact arguably concedes that R.R. knew that Officer Rogers was a
police officer as it would not have been lawful for a random individual to restrain her against a wall. In
addition, R.R. did not claim below that she did not know that Officers Dunker, McIntire, and Rogers were
law enforcement officers.
3
  Officer Dunker had been with the IPS police for “[a]pproximately six and a half years,” Officer McIntire
for “[t]wenty-seven years,” and Officer Rogers for approximately one year. Tr. pp. 34, 50, 70. Thus, it
would have been clear simply by looking at the officers that they were not fellow students but rather were
some type of public-safety figure whose instructions should be followed.

Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019                   Page 11 of 12
       conclude that the evidence was sufficient to sustain the juvenile court’s

       determination that R.R. committed what would be Level 6 felony resisting law

       enforcement if she were an adult. Again, R.R.’s challenge to the sufficiency of

       the evidence effectively amounts to a request that we reweigh the evidence,

       which we will not do. See Stewart, 768 N.E.2d at 435.



                                               Conclusion
[20]   We conclude that the evidence is sufficient to sustain the juvenile court’s true

       findings for Counts One and Two. Further, given our conclusion that R.R.

       may only be found to have committed one act of resisting law enforcement, we

       need not consider the sufficiency of the evidence to sustain the juvenile court’s

       true finding for Count Three. We affirm the juvenile court’s determination that

       R.R. was delinquent for committing what would be Level 6 felony intimidation

       and one count of Level 6 felony resisting law enforcement if committed by an

       adult. However, we remand the matter to the juvenile court with instructions

       for the court to vacate its true finding for Count Three.


[21]   The judgment of the juvenile court is affirmed in part, reversed in part, and

       remanded with instructions.


       Bailey, J, and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-JV-1783 | February 4, 2019   Page 12 of 12
