                                                                                    FILED
                                                                               May 28 2019, 8:36 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Rory Gallagher                                            Curtis T. Hill, Jr.
      Indianapolis, Indiana                                     Attorney General of Indiana
                                                                J.T. Whitehead
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Cordell O. Spencer,                                       May 28, 2019
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                18A-CR-2878
              v.                                                Appeal from the
                                                                Marion Superior Court
      State of Indiana,                                         The Honorable
      Appellee-Plaintiff                                        Clayton Graham, Judge
                                                                Trial Court Cause No.
                                                                49G07-1708-CM-30572



      Vaidik, Chief Judge.



                                           Case Summary
[1]   Cordell O. Spencer appeals his conviction for Class A misdemeanor resisting

      law enforcement by force. He argues that the trial court erred in declining to

      give his tendered jury instruction on “force,” which included examples from

      Court of Appeals of Indiana | Opinion 18A-CR-2878 | May 28, 2019                                  Page 1 of 8
      cases where our appellate courts concluded that the “force” element was not

      satisfied. Because the proposed instruction emphasized particular factual

      scenarios, thereby minimizing other potentially relevant evidence, the trial court

      did not abuse its discretion in declining to give it.



                             Facts and Procedural History
[2]   The evidence most favorable to the verdict reveals that on the afternoon of

      August 19, 2017, Indianapolis Metropolitan Police Department Officer Ryan

      Lundy was on duty when he received a dispatch of “[s]hots fired” in an alley in

      the 1500 block of North Grant Avenue. Tr. p. 65. Officer Lundy arrived in a

      couple of minutes and saw a car parked in some grass right off the alley with a

      foot sticking out of the open driver’s window. As Officer Lundy approached

      the car to investigate, he saw a woman in the driver’s seat talking on her cell

      phone. As Officer Lundy got closer to the car, Spencer quickly exited the front

      passenger door, which “startled” Officer Lundy because he didn’t know there

      was a passenger. Id. at 71. After Spencer exited the car, Officer Lundy looked

      through the open driver’s window and saw two handguns in the center console.

      Upon seeing the guns, Officer Lundy drew his gun and ordered Spencer, who

      had since walked to the back of the car, to “turn around” and “put his hands

      behind his back” so that he could be handcuffed for officer safety while Officer

      Lundy investigated. Id. at 72. The woman also exited the car and began

      filming Officer Lundy with her cell phone. Spencer responded to Officer

      Lundy’s commands by saying “Fu** you,” “I don’t have to do that,” and


      Court of Appeals of Indiana | Opinion 18A-CR-2878 | May 28, 2019          Page 2 of 8
      “why, so you can shoot me in the back.” Id. at 75. Spencer also told Officer

      Lundy several times that he had a “gun permit” and to “check [his] fu**ing gun

      permit.” Id. Officer Lundy’s immediate concern was not whether Spencer had

      a valid gun license, because “[a] gun [license] is not a permission slip to fire off

      rounds in the city.” Id.; see also id. at 76 (Officer Lundy explaining that if

      Spencer would have cooperated, he would have confirmed that Spencer had a

      valid gun license and then “we wouldn’t be here today”).


[3]   At this point, another officer, Sergeant Franklin Wooten, arrived on the scene.

      Officer Lundy felt “safer” once Sergeant Wooten arrived, so he holstered his

      gun and took out his taser. Id. at 80. Officer Lundy told Sergeant Wooten that

      there were two guns in the car and that Spencer was disobeying his commands

      to turn around and put his hands behind his back. Sergeant Wooten grabbed

      Spencer’s left wrist and Officer Lundy grabbed his right wrist; however, Spencer

      “stiffened up” to avoid being handcuffed. Id. at 82. Spencer then “pulled

      away” “with enough force” that Officer Lundy lost his grip. Id. at 105.

      Spencer “spun around” and refused to put his hands behind his back despite the

      officers’ numerous commands to do so. Id. at 54. At this point, Sergeant

      Wooten advised Officer Lundy to tase Spencer. Officer Lundy, who had

      already planned on doing so, tased Spencer once. Spencer “immediately gave

      up,” at which point the officers were able to place him in handcuffs. Id. at 55.




      Court of Appeals of Indiana | Opinion 18A-CR-2878 | May 28, 2019             Page 3 of 8
[4]   The State charged Spencer with Class A misdemeanor resisting law

      enforcement.1 See Appellant’s App. Vol. II p. 16 (charging information alleging

      that Spencer knowingly forcibly resisted, obstructed, or interfered with Officer

      Lundy and Sergeant Wooten while they were lawfully engaged in the execution

      of their duties). At the jury trial, defense counsel tendered a jury instruction

      based on certain language from an opinion that this Court had issued the day

      before, Brooks v. State, 113 N.E.3d 782 (Ind. Ct. App. 2018):


                        Defendant’s Proposed Jury Instruction on “Force”


              In order to find the Defendant guilty of resisting law
              enforcement, you must find that the State of Indiana has proven
              beyond a reasonable doubt that the Defendant forcibly resisted,
              obstructed, or interfered with a law enforcement officer who was
              lawfully engaged in his duties as a law enforcement officer.


              Any action to resist, obstruct, or interfere must be done with
              force.


              Force is defined as using strong, powerful, violent means to
              evade a law enforcement official’s rightful exercise of his duties.


              Force requires some form of violent action toward another.




      1
       The State also charged Spencer with Class B misdemeanor possession of marijuana, but the jury acquitted
      him on this charge.

      Court of Appeals of Indiana | Opinion 18A-CR-2878 | May 28, 2019                               Page 4 of 8
         It is error as a matter of law to conclude that force includes all
         actions that are not passive.


         The following examples are insufficient to constitute force:


                  Turning and pulling away from a law enforcement officer;


                  Leaning away from an officer’s grasp;


                  Refusing to present arms for handcuffing;


                  Twisting and turning a little bit against an officer’s actions;
                  or


                  Walking away from a law enforcement encounter.


         However, the force involved need not raise to the level of
         mayhem.


         Source: Brooks v. State of Indiana, l8A-CR-759 (Ind. Ct. App.
         October 31, 2018) (internal citations omitted).


Appellant’s App. Vol. II p. 131. The State objected on grounds that the jury

instruction (1) was not the pattern instruction and (2) cited “examples.” Tr. p.

12. The trial court declined to give the instruction because it contained

examples. Id. at 14, 16.2 The trial court, however, gave the pattern jury




2
 It may be that the trial court would have given an instruction that defined “force” but did not include
specific examples like those Spencer wanted to have included. The trial court said that it was “not
giving examples” but “if force is defined, we will define it.” Tr. p. 14. However, Spencer did not ask

Court of Appeals of Indiana | Opinion 18A-CR-2878 | May 28, 2019                                   Page 5 of 8
      instruction on resisting law enforcement by force. Appellant’s App. Vol. II p.

      141; 1 Ind. Pattern Jury Instructions—Criminal 5.3000 (4th ed. 2019). The jury

      found Spencer guilty, and the trial court sentenced him to 365 days with 18

      days executed (time served) and the remainder suspended.


[5]   Spencer now appeals.



                                  Discussion and Decision
[6]   Spencer makes one argument on appeal: the trial court erred in refusing to give

      his tendered jury instruction on “force.” “The trial court has broad discretion

      as to how to instruct the jury, and we generally review that discretion only for

      abuse.” McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015) (quotation omitted).

      To determine whether a jury instruction was properly refused, we consider: (1)

      whether the tendered instruction correctly states the law; (2) whether there was

      evidence presented at trial to support giving the instruction; and (3) whether the

      substance of the instruction was covered by other instructions that were given.

      Id. at 763-64. In doing so, we consider the instructions as a whole and in

      reference to each other and do not reverse the trial court for an abuse of

      discretion unless the instructions as a whole mislead the jury as to the law in the

      case. Id.




      for such an instruction. His focus was on the examples. Indeed, during closing arguments, defense
      counsel referred to the same examples that were included in the proposed instruction. See id. at 156-58.

      Court of Appeals of Indiana | Opinion 18A-CR-2878 | May 28, 2019                                   Page 6 of 8
[7]   Spencer argues that his proposed jury instruction correctly states the law

      because it “mirrors language” from this Court’s opinion in Brooks (and other

      cases). In Brooks, we addressed whether the evidence was sufficient to support

      the defendant’s conviction for resisting law enforcement by force. In

      concluding that the evidence was insufficient, we cited appellate cases where

      this Court and our Supreme Court found that the “force” element was not

      satisfied. The State argues that Spencer’s proposed instruction is “confusing”

      because of these examples. Appellee’s Br. p. 12. We agree with the State.


[8]   While this appeal was pending, the Indiana Supreme Court addressed a similar

      issue in Batchelor v. State, 119 N.E.3d 550 (Ind. 2019). In that case, the

      defendant was charged with resisting law enforcement by fleeing, and the trial

      court gave two jury instructions: the pattern instruction on resisting law

      enforcement by fleeing and a “supplemental” instruction tendered by the State,

      which attempted to explain the term “fleeing” and was taken from an opinion

      from this Court. Id. at 561. Our Supreme Court found that the supplemental

      instruction was misleading because it emphasized a factual scenario, thereby

      minimizing other potentially relevant evidence. Id. at 560. As the Court

      explained:


              [W]e have long held that certain language or expression used by
              an appellate court to reach its final conclusion is not [necessarily]
              proper language for instructions to a jury. This is especially true
              when, as here, the instruction is rooted in reasoning found in a
              sufficiency-of-the-evidence case, not an appellate opinion
              approving a jury instruction.


      Court of Appeals of Indiana | Opinion 18A-CR-2878 | May 28, 2019                Page 7 of 8
       Id. at 563 (quotations and citations omitted). Accordingly, the Court

       disapproved of the supplemental instruction and held that “[g]oing forward,

       trial courts should use” the pattern jury instruction on resisting law enforcement

       by fleeing. Id. at 563. The Court noted that while counsel may argue during

       closing argument whether the defendant “fled,” “it’s ultimately for the jury to

       decide whether there’s evidence of . . . fleeing under the statute.” Id.


[9]    Spencer’s proposed jury instruction sets forth five examples from appellate

       decisions where this Court and our Supreme Court found that the “force”

       element was not satisfied. Like the instruction in Batchelor, it is misleading

       because it emphasizes particular factual scenarios, thereby minimizing other

       potentially relevant evidence. Whether a defendant forcibly resists is a factually

       sensitive determination. Accordingly, the trial court did not abuse its discretion

       in declining to give Spencer’s proposed jury instruction on force.


[10]   Affirmed.


       Kirsch, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-2878 | May 28, 2019           Page 8 of 8
