MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Mar 07 2017, 8:59 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
Erin L. Berger                                           Curtis T. Hill, Jr.
Evansville, Indiana                                      Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Roman Allen,                                             March 7, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         87A05-1606-CR-1277
        v.                                               Appeal from the Warrick Circuit
                                                         Court
State of Indiana,                                        The Honorable Greg A. Granger,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         87C01-1501-CM-4



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017                Page 1 of 7
[1]   Roman Allen was convicted of Resisting Law Enforcement, 1 a Class A

      Misdemeanor. He argues that the State did not offer sufficient evidence to

      prove that he resisted law enforcement, or, in the alternative, he was privileged

      to resist the arresting officers because they used excessive force against him.

      Finding sufficient evidence and no privilege, we affirm.


                                                       Facts     2




[2]   On January 2, 2015, Abbigail Roy was working as a bartender at the Southside

      Bar in Boonville. Allen was at the bar that night and started arguing with

      another customer, and Roy asked them to stop. When they continued to argue,

      Roy asked them to leave the bar, and Allen left. He then returned, saying that

      he needed to use the restroom. When Allen exited the restroom, a woman

      approached him, and he told the woman “to get out of his face.” Tr. p. 6. At

      some point during the night, someone said, “he can pull his [gun] faster than

      you can pull yours.”3 Id. at 8. Another employee who was at the bar but not

      working called the police.




      1
          Ind. Code § 35-44.1-3-1(a)(1).
      2
       Oral argument took place on Thursday, February 16, 2017, at Ivy Tech Community College in
      Indianapolis. We thank the school’s administration, faculty, and students for their hospitality and thoughtful
      post-argument questions. We also thank counsel for their informative arguments.
      3
       During direct examination, Roy testified, “I was told that he can pull his faster than you can pull yours.
      That’s all I was told, and then somebody said—.” Tr. p. 8. She testified that she did not know who said it.
      During cross-examination, counsel asked Roy, “But, is it true, ma’am, that you heard, he can pull his faster
      than you can pull yours? That’s something that you heard?” Id. at 15. Roy testified, “I did not hear that.
      Somebody came up and told me that, and that’s how the police got called was because somebody overheard
      that and said it to me, and said that she was going to call the police. I never heard that for myself.” Id.

      Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017               Page 2 of 7
[3]   Chandler Police Officer Matthew Tevault was dispatched to the Southside Bar.

      Once inside, he unholstered his weapon and ordered Allen and another man to

      show him their hands. Allen did not comply, instead keeping his hands in his

      pockets as he began approaching Officer Tevault with a dazed look. When

      Allen was within three feet of Officer Tevault, he put his hands up and

      continued to advance. Officer Tevault then kicked Allen’s sternum “to try to

      gain distance from him,” holstered his weapon, and “began to go hands on with

      him.” Id. at 32. Officer Tevault grabbed Allen’s left arm near his wrist and

      tried to escort him to the ground. The floor was slick, making it hard for

      Officer Tevault to gain control of Allen. He gave knee strikes to Allen’s mid-

      thigh to try to get him to the ground. At some point, Officer Dalton Spaulding

      arrived and tried to subdue Allen. Officer Spaulding grabbed Allen, who pulled

      away, causing Officer Spaulding to slam into a vending machine.


[4]   The officers told Allen that he would be tased if he did not comply. When

      Allen did not do as ordered, Officer Tevault tased him for a five-second cycle.

      Officer Spaulding tased him at the same time. While tasing Allen, Officer

      Tevault told him to put his hands behind his back as soon as the tasing was

      over. Instead of complying, Allen rolled onto his side, looked at Officer

      Tevault, and tucked his hands underneath himself. Officer Spaulding told

      Allen that if he did not put his hands behind his back, he would be tased again.

      Officer Tevault then tased Allen for a second five-second cycle, after which

      Allen put his hands behind his back, and Officer Spaulding handcuffed him.




      Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017   Page 3 of 7
[5]   On January 2, 2015, the State charged Allen with resisting law enforcement, a

      Class A misdemeanor. A bench trial took place on April 22, 2016, and the trial

      court took the matter under advisement. On April 25, 2016, the trial court

      issued an order finding Allen guilty, and entered a conviction against him. On

      May 20, 2016, the trial court sentenced Allen to twelve months at the Warrick

      County Security Center, with all of the sentence suspended to non-reporting

      probation except for five weekends.


                                   Discussion and Decision
[6]   Allen argues that there was insufficient evidence to convict him of resisting law

      enforcement, and that even if he did resist, he was privileged to do so because

      the officers used excessive force against him during his arrest.


                              I. Sufficiency of the Evidence
[7]   Allen argues that the State did not present sufficient evidence to support his

      conviction. When considering a challenge to the sufficiency of the evidence, we

      do not reweigh the evidence or judge the credibility of the witnesses. McHenry

      v. State, 820 N.E.2d 124, 126 (Ind. 2005). We will affirm if the probative

      evidence and the reasonable inferences drawn therefrom could have allowed a

      reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

      Id. To convict Allen of resisting law enforcement, the State needed to prove

      beyond a reasonable doubt that Allen knowingly or intentionally forcibly

      resisted, obstructed, or interfered with a law enforcement officer or a person



      Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017   Page 4 of 7
       assisting the officer while the officer was lawfully engaged in the execution of

       his duties. I.C. § 35-44.1-3-1(a)(1).


[8]    Our Supreme Court has considered the elements of this crime, noting that the

       word “forcibly” modifies “resists, obstructs, or interferes” and that force is an

       element of the offense. Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009)

       (discussing Spangler v. State, 607 N.E.2d 720 (Ind. 1993)). An individual

       “‘forcibly resists’” when “‘strong, powerful, violent means are used to evade a

       law enforcement official’s rightful exercise of his or her duties.’” Id. (quoting

       Spangler, 607 N.E.2d at 723). The force involved does not need to rise to the

       level of mayhem. Id. “It is error as a matter of law to conclude that ‘forcibly

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


[9]    Here, Allen forcibly resisted the officers as they tried to place him on the

       ground and handcuff him. The evidence shows that when Officer Tevault told

       Allen to show his hands, Allen did not comply and began approaching Officer

       Tevault with his hands in his pocket, which made Officer Tevault consider

       Allen a threat. Even when Allen did put his hands up, he continued to advance

       on the officer. Officer Tevault kicked Allen to get some distance and gave knee

       strikes to Allen’s mid-thigh to get him to the ground, but Allen still did not

       comply.


[10]   Had these actions been the only ones that Allen took during the incident, this

       case might be different. However, as Officer Tevault tried to put Allen on the

       ground, Allen pulled away from him and tried to stay on his feet. When Officer


       Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017   Page 5 of 7
       Spaulding grabbed Allen, Allen’s movements made Officer Spaulding slam into

       a vending machine. We find that this movement constitutes a strong and

       powerful act used to evade the officers. Accordingly, sufficient evidence

       supports Allen’s resisting law enforcement conviction.


                                       II. Privilege to Resist
[11]   Allen next argues that if he did resist the officers, he was privileged to do so

       because they used excessive force against him during his arrest. The general

       rule in Indiana provides 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. Shoultz v. State, 735 N.E.2d 818, 823 (Ind. Ct. App. 2000). But that

       general rule was not intended to “criminalize any conduct evincing resistance

       where the means used to effect an arrest are unlawful.” Id. (emphasis original).


[12]   Claims that law enforcement officers have used excessive force in the course of

       an arrest of a free citizen are analyzed under the Fourth Amendment to the

       United States Constitution and its “reasonableness” standard. Id. at 823-24

       (citing Graham v. Connor, 490 U.S. 386, 395 (1989)). The reasonableness

       standard requires “careful attention to the facts and circumstances of each

       particular case, including the severity of the crime at issue, whether the suspect

       poses an immediate threat to the safety of the officers or others, and whether he

       is actively resisting arrest or attempting to evade arrest by flight.” Id. at 824.

       Whether a particular use of force was reasonable must be judged from the


       Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017   Page 6 of 7
       perspective of a reasonable officer on the scene. Id. In an excessive force case,

       the reasonableness inquiry is objective: “the question is whether the officers’

       actions are ‘objectively reasonable’ in light of the facts and circumstances

       confronting them, without regard to their underlying intent or motivation.” Id.


[13]   In this case, we find that the officers’ behavior was objectively reasonable, and

       therefore constitutional, because Allen’s behavior was threatening to the

       officers. The officers were called specifically because Allen had a verbal

       altercation with another patron and someone suspected that Allen had a gun.

       Allen did not comply with Officer Tevault’s commands to show his hands, and

       Allen walked toward him with a dazed look—this behavior was threatening

       enough to Officer Tevault that Officer Tevault tried to distance himself from

       Allen by kicking him in the sternum. Following this kick, Officer Tevault and

       Officer Spaulding continued to struggle to gain control of Allen. At one point,

       Allen caused Officer Spaulding to slam into a vending machine. Even after

       being tased, Allen did not put his hands behind his back as he was directed to

       do. In sum, Allen was actively resisting arrest. Considering this evidence, we

       cannot say that the force the officers used to subdue Allen was excessive.


[14]   The judgment of the trial court is affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 87A05-1606-CR-1277 | March 7, 2017   Page 7 of 7
