Torence L. Jackson, Jr. v. State of Indiana

FILED Nov 19 2020, 8:42 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Talisha Griffin Curtis T. Hill, Jr. Attorney General of Indiana Valerie K. Boots Marion County Public Defender Agency Benjamin Shoptaw Indianapolis, Indiana Deputy Attorney General

Alexandria Sons Certified Legal Intern

Anthony J. Smith Certified Legal Intern Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Torence L. Jackson, Jr., November 19, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-385 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy M. Jones, Appellee-Plaintiff. Judge The Honorable David Hooper, Magistrate

Trial Court Cause No. 49G08-1910-CM-41963

Shepard, Senior Judge. Court of Appeals of Indiana | Opinion 20A-CR-385 | November 19, 2020 Page 1 of 6 [1] An officer investigating a report of disorderly people at a gas station handcuffed

Torence L. Jackson, Jr., after Jackson refused to remove his hands from his

pockets. His eventual conviction for resisting arrest presents legitimate

questions about the element of force required for such a crime.

Issues [2] Jackson raises two issues:

I. Whether his conviction can stand in the absence of any evidence that he exercised any force; and

II. Whether the trial court erred in ordering him to pay a public defender fee.

Facts and Procedural History [3] On October 27, 2019, Indianapolis Metropolitan Police Department Officer

Shawn Romeril was dispatched to a gas station to investigate a report that two

men were harassing customers. Officer Romeril knew the gas station was in “a

high crime area” and that violent crimes had happened there. Tr. Vol. II, p. 10. [4] When Officer Romeril arrived, he saw two men, later identified as Jackson and

a companion. As the officer drove up in a marked patrol car, the two men saw

him and put their hands in their pockets. Officer Romeril, who was in full

uniform, got out of his car and told the men to take their hands out of their

pockets and sit down. Jackson’s companion complied, but Jackson kept his

hands in his pockets.

Court of Appeals of Indiana | Opinion 20A-CR-385 | November 19, 2020 Page 2 of 6 [5] Officer Romeril approached Jackson, repeatedly telling him to take his hands

out of his pockets, but Jackson refused to comply. The officer removed

Jackson’s hands from his pockets and handcuffed him. At that point, Jackson’s

companion stood up and ran away. Officer Romeril chased him. [6] Jackson left the gas station while Officer Romeril was gone. Other officers

arrived and searched the area. One of them located Jackson and brought him

to Officer Romeril, who arrested him.

[7] The State charged Jackson with forcibly resisting law enforcement, a Class A 1 misdemeanor, and public intoxication, a Class B misdemeanor. The trial court

held a bench trial. During trial, Jackson moved to dismiss the charges. The

court dismissed the charge of public intoxication but not the charge of resisting.

The court determined Jackson was guilty of resisting and imposed a sentence.

This appeal followed.

Discussion and Decision I. Sufficiency of the Evidence [8] We do not assess the credibility of witnesses or reweigh the evidence in

determining whether the evidence is sufficient. Brooks v. State, 113 N.E.3d 782

(Ind. Ct. App. 2018). We consider only the probative evidence and reasonable

inferences supporting the verdict. Id. We will affirm the conviction if there is

1 Ind. Code § 35-44.1-3-1(a)(1) (2019).

Court of Appeals of Indiana | Opinion 20A-CR-385 | November 19, 2020 Page 3 of 6

substantial evidence of probative value from which a reasonable factfinder

could have concluded beyond a reasonable doubt that the defendant was guilty

of the crime charged. Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App. 2005). [9] To obtain a conviction of resisting law enforcement, as charged, the State was

required to prove beyond a reasonable doubt that (1) Jackson (2) knowingly or

intentionally (3) forcibly (4) resisted, obstructed, or interfered (5) with a law

enforcement officer (6) while the officer was lawfully engaged in the execution

of the officer’s duties. Ind. Code § 35-44.1-3-1(a)(1). The parties’ dispute

focuses on whether Jackson forcibly resisted Officer Romeril’s efforts to remove

Jackson’s hands from his pockets and handcuff him. [10] In Graham v. State, 903 N.E.2d 963 (Ind. 2009), officers arrived at Graham’s

house after he reportedly shot at another person. Graham came outside, but he

refused to comply with officers’ demands to raise his hands and turned to

reenter his home. Next, they fired “bean bag” rounds at Graham’s legs,

knocking him down. Id. at 965. The officers carried him off of his porch, put

him on the ground, and handcuffed him. Graham was convicted of Class A

resisting law enforcement, among other offenses. The Indiana Supreme Court

reversed, noting there was no evidence that he physically resisted the officers’

efforts once they picked him up. [11] In Berberena v. State, 914 N.E.2d 780 (Ind. Ct. App. 2009), trans. denied, an

officer ordered Berberena to put his hands behind his back, but he did not

comply. Next, the officer pushed Berberena against a wall, grabbed his hands,

Court of Appeals of Indiana | Opinion 20A-CR-385 | November 19, 2020 Page 4 of 6

and placed them in handcuffs. A panel of this Court reversed Beberena’s

conviction of Class A misdemeanor resisting law enforcement, concluding there

was no evidence that Berberena forcibly resisted the officer, such as by

stiffening his arms or taking other physical action against the officer. See also

Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009) (reversing a conviction for

resisting; Colvin refused to take hands out of pockets, and officers placed him

on ground and handcuffed him, but Colvin did not physically resist), trans.

denied; cf. Johnson v. State, 833 N.E.2d at 518-19 (affirming a conviction for

resisting; Johnson pushed away from officers as they attempted to search him

and “stiffened up” when officers attempted to place him in transport vehicle). [12] Other jurisdictions have addressed the use of force by defendants who fail to

obey police instructions. Compare State v. Caldwell, 352 S.W.3d 378 (Mo. Ct.

App. 2011) (reversing conviction for resisting arrest; Caldwell did not physically

resist officer but instead merely refused to open her car door), with State v.

Belton, 108 S.W.3d 171 (Mo. Ct. App. 2003) (affirming conviction for resisting

arrest; Belton struggled against officer attempting to pull him out of his car); see

also Rich v. State, 44 A.3d 1063, 1082-83 (Md. Ct. Spec. App. 2012) (reversing

conviction for resisting arrest; fleeing from officer does not establish “resistance

by force,” and Rich did not struggle against being handcuffed once caught);

State v. Prince, 972 P.2d 859 (N.M. Ct. App. 1998) (reversing conviction for

obstructing police officer; Prince did not physically or verbally resist officer’s

commands).

Court of Appeals of Indiana | Opinion 20A-CR-385 | November 19, 2020 Page 5 of 6 [13] The facts of Jackson’s case more closely resemble the circumstances of Graham,

Berberena and Colvin than the circumstances of Johnson. Jackson did not comply

with Officer Romeril’s instructions to take his hands out of his pockets and sit

down. We do not endorse his refusal to cooperate. Still, there is no evidence

that Jackson physically resisted, such as by pulling away or stiffening his arms,

when Officer Romeril grabbed his hands and handcuffed him. In the absence

of physical efforts by Jackson to oppose Officer Romeril, there is insufficient

evidence to support the “forcibly” element of the offense of resisting law

enforcement. We reverse Jackson’s conviction.

II. Public Defender Fee [14] Jackson argues the trial court abused its discretion by ordering him to pay a

public defender fee without asking about his ability to pay. To its credit, the

State concedes the trial court was obligated to consider whether Jackson could

pay the fee and did not. We reverse the trial court’s imposition of the fee.

Conclusion [15] For the reasons stated above, we reverse the judgment of the trial court.

[16] Reversed.

Najam, J., and Brown, J., concur.

Court of Appeals of Indiana | Opinion 20A-CR-385 | November 19, 2020 Page 6 of 6