Desmond Bland v. State of Indiana (mem. dec.) ( 2018 )

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.
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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).
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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
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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).
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[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.
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Conclusion
[11] Sufficient evidence supports Bland’s conviction for Resisting Law Enforcement.
[12] Affirmed.
Crone, J., and Brown, J., concur.
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