Steven A. Pearson v. State of Indiana (mem. dec.) ( 2016 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Sep 26 2016, 9:31 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Gregory F. Zoeller
Indianapolis, Indiana Attorney General of Indiana
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Steven A. Pearson, September 26, 2016
Appellant-Defendant, Court of Appeals Case No.
49A05-1512-CR-2198
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Shannon Logsdon,
Appellee-Plaintiff. Commissioner
Trial Court Cause No.
49G08-1411-CM-51718
Brown, Judge.
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[1] Steven A. Pearson appeals his conviction for resisting law enforcement as a
class A misdemeanor. Pearson raises one issue which we revise and restate as
whether the evidence is sufficient to sustain his conviction. We affirm.
Facts and Procedural History
[2] On November 16, 2014, Pearson was arrested for public intoxication and
resisting law enforcement and was placed in a holding cell at the Arrestee
Processing Center (“APC”) in Marion County. Sergeant Daniel Majors went
to the cell where Pearson was lying on a bench with his head covered and asked
him to remove a black hoodie covering his face because of the department’s
policy to see a face at all times to make sure the person is breathing. Pearson
became “very agitated,” and Deputy Matthew Renner and Deputy Christopher
Ramey stepped over to assist. Transcript at 16. When asked to remove the
hoodie, Pearson pulled it off over his head and said, “Take the shirt.” Id. at 7.
Sergeant Majors reached out, grabbed a hold of the shirt, and Pearson “pulled it
back towards him which pulled [Sergeant] Majors into him” and “down on top
of him.” Id. at 7, 16.
[3] At this point, Pearson’s hands were inside his hoodie. Deputy Ramey assisted
Sergeant Majors in “trying to get Mr. Pearson’s hands away from him to get
him handcuffed” and grabbed Pearson’s arm. Id. at 8. Pearson was
“aggressive” towards the deputies. Id. at 17. Deputy Renner stepped around to
Pearson’s top half of his body and “secured him on the bench so he couldn’t get
up to continue to fight.” Id. at 7. Pearson “rolled his hips which knocked his . .
. he came off the bench” and continued to “try to get to his feet.” Id. Pearson
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was told to stop resisting, and Deputy Renner announced “[t]aser, taser, taser,”
before deploying his taser. Id. at 8. Deputy Renner was subsequently able to
handcuff Pearson.
[4] On November 16, 2014, the State charged Pearson with resisting law
enforcement as a class A misdemeanor. On November 20, 2015, the court held
a bench trial. Deputy Renner and Deputy Ramey testified. Pearson testified
that he went to a bar on November 15, 2014, because his “ex wouldn’t let [him]
bring [his] son some Legos . . . .” Id. at 22. According to Pearson, he had
numerous drinks, the next thing he remembered happening was standing on the
side of a deck where someone swung a gate open and tased him, that he was
tased four times in the bar, that he was incoherent after being tased at the bar,
and that he did not remember going into the APC or being asked to remove his
hoodie.
[5] After the parties rested, Pearson’s counsel argued that Pearson was not
knowingly or intentionally misbehaving in the APC based on his high level of
intoxication and his impairment from a combination of the alcohol and the
effects of being tased. The court stated that it was Pearson’s choice not to
comply with the instructions of the deputies and that his voluntary intoxication
was not a defense. The court found Pearson guilty as charged and sentenced
him to 365 days with 355 days suspended.
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Discussion
[6] The issue is whether the evidence is sufficient to sustain Pearson’s conviction.
When reviewing the sufficiency of the evidence to support a conviction, we
must consider only the probative evidence and reasonable inferences supporting
the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess
witness credibility or reweigh the evidence. Id. We consider conflicting
evidence most favorably to the trial court’s ruling. Id. We affirm the conviction
unless “no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270
(Ind. 2000)). It is not necessary that the evidence overcome every reasonable
hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference
may reasonably be drawn from it to support the verdict. Id.[7] The offense of resisting law enforcement as a class A misdemeanor is governed
by Ind. Code § 35-44.1-3-1, which provides that “[a] person who knowingly or
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 . . . .”1 The charging information alleged that Pearson
“did knowingly or intentionally forcibly resist, obstruct or interfere with
DANIEL J MAJORS, a law enforcement officer with the Marion County
1
Subsequently amended by Pub. L. No. 198-2016, § 673 (eff. July 1, 2016).
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Sheriff’s Office, and/or MATTHEW A RENNER, a law enforcement officer
with the Marion County Sheriff’s Office, while said officer was lawfully
engaged in his duties as a law enforcement officer . . . .” Appellant’s Appendix
at 15.
[8] Pearson argues that there is insufficient evidence that he acted forcibly. He
asserts that there was no power or violence in his lone maneuver during this
commotion and that, even if there was, he was reacting to the deputies’
demands due to his voluntary intoxication prior to the arrest. He contends that
although voluntary intoxication is not a defense to his conviction, it should be
considered as an explanation of the slow reaction to the deputies’ orders and a
lack of manual dexterity instead of forcible resistance. The State argues that the
evidence is sufficient where Pearson pulled an officer into him and then
continued to struggle after repeatedly being told to stop resisting.
[9] The Indiana Supreme Court has held that “[s]uch a seemingly simple statute . .
. has proven to be complex and nuanced in its application.” Walker v. State, 998
N.E.2d 724, 726 (Ind. 2013). In Spangler v. State, 607 N.E.2d 720, 722-723 (Ind.
1993), the Indiana Supreme Court held that the word “forcibly” is an essential
element of the crime and modifies the entire string of verbs—resists, obstructs,
or interferes—such that the State must show forcible resistance, forcible
obstruction, or forcible interference. The Court also held that the word meant
“something more than mere action.” Spangler, 607 N.E.2d at 724. “[O]ne
‘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.”
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Id. at 723. “[A]ny action to resist must be done with force in order to violate
this statute. It is error as a matter of law to conclude that ‘forcibly resists’
includes all actions that are not passive.” Id. at 724.
[10] “But even so, ‘the statute does not demand complete passivity.’” Walker, 998
N.E.2d at 727 (quoting K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013)). In
Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009), the Court clarified that “[t]he
force involved need not rise to the level of mayhem.” “In fact, even a very
‘modest level of resistance’ might support the offense.” Walker, 998 N.E.2d at
727 (quoting Graham, 903 N.E.2d at 966) (“even ‘stiffening’ of one’s arms when
an officer grabs hold to position them for cuffing would suffice”)). The Indiana
Supreme Court held:
So in summary, 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.
Id.
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[11] In Berberena v. State, which is cited by Pearson, a police officer “gave several
loud verbal commands” for Edwin Berberena to stop. 914 N.E.2d 780, 780-781
(Ind. Ct. App. 2009), trans. denied. The police officer ordered Berberena to
place his hands behind his back, but Berberena did not comply. Id. at 781. The
officer then “had to forcefully place [Berberena] against the wall of the building.
[Berberena’s] chest was facing the building, and [the officer] had to struggle
with him to grab his hands and place them in handcuffs.” Id. The trial court
found Berberena guilty of resisting law enforcement. Id. On appeal, the court
held that the officer’s testimony “that he struggled to place the handcuffs on
Berberena’s wrists [was] ambiguous.” Id. at 782. The court also observed that
the officer “did not testify, and there [was] no evidence, that Berberena stiffened
his arms or otherwise ‘made threatening or violent actions’ to contribute to the
struggle.” Id. (quoting Ajabu v. State, 704 N.E.2d 494, 496 (Ind. Ct. App.
1998)). Lastly, the court observed that the officer “could not remember what
Berberena was doing with his hands, and the struggle did not last very long.”
Id. The court concluded that the evidence was insufficient to support
Berberena’s conviction. Id. at 783.
[12] Pearson also cites Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009), trans.
denied. In that case, Curtis Colvin kept his hands in his pockets during a
struggle with officers and did not comply with officers’ commands, and the
officers had to use force to execute the arrest. 916 N.E.2d at 309. The State did
not present any evidence that Colvin used force or made threatening or violent
actions to contribute to the struggle with the officers. Id. The court held that
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the evidence did not support a reasonable inference that Colvin did more than
passively resist the officers. Id.[13] Here, unlike the defendants’ actions in Berberena and Colvin, we cannot say that
the State did not present any evidence that Pearson used force. The record
reveals that Sergeant Majors asked Pearson to remove his hoodie from his face,
that Pearson became very agitated, pulled his hoodie over his head, and said
“Take the shirt,” and that when Sergeant Majors reached out and grabbed a
hold of the shirt, Pearson pulled it back towards him “which pulled [Sergeant]
Majors into him” and “down on top of him.” Transcript at 7, 16. Deputy
Renner testified that he stepped around to Pearson’s head and secured him on
the bench so that Pearson “couldn’t get up to continue to fight.” Id. at 7.
When asked if Pearson continued to fight, Deputy Renner answered: “Yes he
rolled his hips which knocked his . . . he came off the bench. He continued to
try to get to his feet.” Id. Further, as conceded by Pearson, his voluntary
intoxication is not a defense. See Ind. Code § 35-41-2-5 (“Intoxication is not a
defense in a prosecution for an offense and may not be taken into consideration
in determining the existence of a mental state that is an element of the offense
unless the defendant meets the requirements of IC 35-41-3-5.”); Ind. Code § 35-
41-3-5 (“It is a defense that the person who engaged in the prohibited conduct
did so while he was intoxicated, only if the intoxication resulted from the
introduction of a substance into his body . . . without his consent . . . or . . .
when he did not know that the substance might cause intoxication.”); see also
Sanchez v. State, 749 N.E.2d 509, 520 (Ind. 2001) (discussing Ind. Code § 35-41-
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3-5 and holding that the statute “redefines the requirement of mens rea to
include voluntary intoxication, in addition to the traditional mental states, i.e.,
intentionally, knowingly, and recklessly”).
[14] Based upon the record, we conclude that there exists evidence of probative
value from which a reasonable trier of fact could find that Pearson exercised at
least a modest exertion of strength, power, or violence that impeded Sergeant
Majors and/or Deputy Renner in the lawful execution of their duties and that
he was guilty beyond a reasonable doubt of resisting law enforcement as a class
A misdemeanor. See Lopez v. State, 926 N.E.2d 1090, 1093-1094 (Ind. Ct. App.
2010) (holding that the evidence was sufficient to prove that the defendant acted
with the requisite force in resisting the officers in the execution of their duties
where the defendant refused to stand and “started to pull away” when the
officers tried to physically pull him up from the couch and where the officers
were unable to pull his arms out from under the defendant), trans. denied;
Johnson v. State, 833 N.E.2d 516, 518-519 (Ind. Ct. App. 2005) (holding that the
defendant forcibly resisted police officers by turning away and pushing away
with his shoulders as they attempted to search him, refusing to enter the
transport vehicle, and stiffening up, thus requiring the officers to exert force to
place him inside the transport vehicle).
Conclusion
[15] For the foregoing reasons, we affirm Pearson’s conviction.
[16] Affirmed.
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Robb, J., and Mathias, J., concur.
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