Opinion
22A-CR-2620
04-19-2023
Moses Hardin, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff.
ATTORNEY FOR APPELLANT Cara Schaefer Wieneke Wieneke Law Office, LLC Brooklyn, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Erica S. Sullivan Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Vanderburgh Superior Court The Honorable Molly E. Briles, Magistrate Trial Court Cause No. 82D02-2207-CM-3812
ATTORNEY FOR APPELLANT
Cara Schaefer Wieneke
Wieneke Law Office, LLC
Brooklyn, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Erica S. Sullivan
Deputy Attorney General
Indianapolis, Indiana
MEMORANDUM DECISION
BRADFORD, JUDGE
Case Summary
[¶1] Moses Hardin forcibly resisted arrest on July 6, 2022, after it had been reported to the Evansville Police Department by a probation-services company that Hardin had committed a probation violation. Following a bench trial, Hardin was convicted of Class A misdemeanor resisting law enforcement and was sentenced to sixty days of incarceration. Hardin challenges the sufficiency of the evidence to sustain his conviction on appeal. We affirm.
Facts and Procedural History
[¶2] On July 6, 2022, Evansville Police Officers Matthew Tevault and Stephan Welcher were dispatched to ABK, a probation-services company. Upon arriving at ABK, Officers Tevault and Welcher were informed "of an ABK violation where we needed to take a subject into custody and take him to the Vanderburgh County jail." Tr. p. 13.
[¶3] When Officers Tevault and Welcher approached Hardin, who had been sitting in the ABK waiting room, Officer Welcher "went to the lefthand side" and Officer Tevault "went around to the righthand side." Tr. p. 14. After Hardin refused the officers' instruction to "put his hands behind his back," Officer Welcher "grabbed [Hardin's] right arm" and Officer Tevault "grabbed his left arm." Tr. p. 14. Hardin "tensed up at that point in time and balled his fists." Tr. p. 14. The officers "performed an under hook on [Hardin's] arms to get his hands securely placed behind his back." Tr. p. 18. After Hardin "pulled away from [Officer Tevault] a little bit," Officer Tevault had "to use more force to physically put [Hardin's] arm behind his back." Tr. p. 14. Eventually, "Officer Welcher placed [Hardin] into handcuffs." Tr. p. 14.
[¶4] Once in handcuffs, Hardin "became pretty verbally aggressive" and "started kind of turning his body" while Officer Welcher "was trying to search him." Tr. p. 14. After Hardin attempted to pull away, the officers "escorted him to the ground." Tr. p. 18. Hardin then "began kind of rolling and kicking." Tr. p. 14. Officer Tevault restrained "the upper part of [Hardin's] body" while Officer Welcher "grabbed his legs, crossed his legs, and performed a leg lock." Tr. p. 18. Hardin eventually "calmed down." Tr. p. 14.
[¶5] On July 7, 2022, the State charged Hardin with Class A misdemeanor resisting law enforcement. Following a bench trial, the trial court found Hardin guilty and sentenced him to sixty days of incarceration.
Discussion and Decision
[¶6] Hardin contends that the evidence is insufficient to sustain his conviction for Class A misdemeanor resisting law enforcement.
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 factfinder 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) (cleaned up). Stated differently, in reviewing the sufficiency of the evidence, "'we consider only the evidence and reasonable inferences most favorable to the convictions, neither reweighing evidence nor reassessing witness credibility'" and "'affirm the judgment unless no reasonable factfinder could find the defendant guilty.'" Mardis v. State, 72 N.E.3d 936, 938 (Ind.Ct.App. 2017) (quoting Griffith v. State, 59 N.E.3d 947, 958 (Ind. 2016)).
[¶7] In order to prove that Hardin committed Class A misdemeanor resisting law enforcement, the State was required to prove that Hardin "knowingly or intentionally: (1) forcibly resist[ed], obstruct[ed], or interfere[d] with a law enforcement officer or a person assisting the officer while the officer [was] engaged in the execution of the officer's duties." Ind. Code § 35-44.1-3-1(a)(1). In explaining what constitutes actionable force, the Indiana Supreme Court has stated that
not every passive-or even active-response to a police officer constitutes the offense of resisting law enforcement, even when that response compels the officer to use force. Instead, a person "forcibly" resists, obstructs, or interferes with a police officer when he or she uses strong, powerful, violent means to impede an officer in the lawful execution of his or her duties. But this
should not be understood as requiring an overwhelming or extreme level of force. The element may be satisfied with even a modest exertion of strength, power, or violence. Moreover, the statute does not require commission of a battery on the officer or actual physical contact-whether initiated by the officer or the defendant. It also contemplates punishment for the active threat of such strength, power, or violence when that threat impedes the officer's ability to lawfully execute his or her duties.Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013) (emphasis added). The Indiana Supreme Court has further stated that "[t]he force involved need not rise to the level of mayhem." Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009).
[¶8] Hardin argues that his acts of resistance did not include the requisite level of force necessary to sustain a conviction for Class A misdemeanor resisting law enforcement. In support, Hardin notes that in some cases, appellate courts have found the following to be insufficient to prove forcible resistance:
• "turn[ing] and pull[ing] away" from an officer, K.W. v. State, 984 N.E.2d 610, 612-13 (Ind. 2013);
• walking away from an officer, Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993);
• refusing to present one's hands to be handcuffed, Graham, 903 N.E.2d at 965-66;
• tensing up and pulling away, Brooks v. State, 113 N.E.3d 782, 785 (Ind.Ct.App. 2018);
• leaning away from an officer, A.C. v. State, 929 N.E.2d 907, 911-12 (Ind.Ct.App. 2010); and
• "twisting and turning a little bit" to avoid an officer. Ajabu v. State, 704 N.E.2d 494, 495 (Ind.Ct.App. 1998) (internal record quotation omitted).
We note that while the Graham Court held that merely refusing to give one's hands to be handcuffed was insufficient to prove the requisite level of force, it indicated that "even 'stiffening' of one's arms when an officer grabs hold to position them for cuffing would suffice." Graham, 903 N.E.2d at 966.
For its part, the State asserts, and we agree, that this case can be distinguished from each of these cases because this case involved more forcible acts of resistance than was present in any of the above-cited cases.
[¶9] The evidence most favorable to the trial court's judgment establishes that Hardin did not commit a single forcible act, but rather a number of acts which, when considered together, are more than sufficient to sustain the trial court's determination that Hardin forcibly resisted Officers Tevault and Welcher. Hardin "tensed up," pulled away, and "balled his fists" to the point where officers needed to perform "an under hook on [Hardin's] arms to get his hands securely placed behind his back." Tr. p. 18. Once handcuffed, Hardin "became pretty verbally aggressive" and "started kind of turning his body" while Officer Welcher "was trying to search him." Tr. p. 14. After Hardin again attempted to pull away, the officers "escorted [Hardin] to the ground." Tr. p. 18. Hardin then "began kind of rolling and kicking." Tr. p. 14. Officer Tevault restrained "the upper part of [Hardin's] body" while Officer Welcher "grabbed his legs, crossed his legs, and performed a leg lock." Tr. p. 18. The evidence is sufficient to sustain Hardin's conviction, and Hardin's claim to the contrary amounts to nothing more than an invitation for this court to reweigh the evidence, which we will not do. See Mardis, 72 N.E.3d at 938.
[¶10] The judgment of the trial court is affirmed.
May, J., and Mathias, J., concur.