Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing Sep 08 2014, 9:01 am
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BARBARA J. SIMMONS GREGORY F. ZOELLER
Oldenburg, Indiana Attorney General of Indiana
ERIC P. BABBS
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
STEVEN C. PETERS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1311-CR-982
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Becky Pierson-Treacy, Judge
The Honorable Steven Rubick, Magistrate
Cause No. 49F19-1207-CM-52301
September 8, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Steven C. Peters appeals his convictions for Class A misdemeanor criminal
trespass,1 Class A misdemeanor resisting law enforcement,2 and Class B misdemeanor
disorderly conduct.3 He raises three issues which we consolidate and restate as whether the
State presented sufficient evidence to sustain his convictions.
We affirm.
FACTS AND PROCEDURAL HISTORY
On the morning of July 31, 2012, Peters sought assistance at the emergency room
of St. Vincent’s Hospital. Peters was treated, and his physician discharged him from the
hospital after a social worker had also cleared Peters. The attending nurse presented Peters
with his discharge paperwork so that he could leave the hospital, but Peters refused to leave.
Peters became very angry and began cursing and yelling. The nurse reiterated five or six
times that Peters must leave and finally called for hospital security.
Special Deputies Kevin Danforth, Robert Coffer, and Damon Love responded.
Deputy Danforth informed Peters at least seven times that Peters must leave the hospital
or be arrested for criminal trespass. Hoping for a peaceful outcome, the deputies told Peters
that they would assist him to the hospital lobby in a wheelchair so that Peters could wait
for a taxi to take him home.
1
See Ind. Code § 35-43-2-2. We note that, effective July 1, 2014, a new version of this and the
other statutes involved in this appeal were enacted. The substance of the statutes remained the same.
2
See Ind. Code § 35-44.1-3-1.
3
See Ind. Code § 35-45-1-3.
2
Peters would not seat himself in the wheelchair and had to be assisted. As the
deputies wheeled Peters out of the treating room, Peters jumped out of the chair and yelled,
“I’m not fucking going!” Tr. 67. Peters partially lifted the wheelchair off of the floor in
an attempt to throw it at the deputies, but the wheelchair was too heavy for Peters to throw,
and he dropped it. Peters then leaned forward and put his clenched fists in the air in a
fighting stance. Deputy Danforth felt that Peters was approaching to hit him. The deputies
advised Peters that he was under arrest and rushed to contain Peters before he could throw
any punches. Peters began to flail his arms, and he moved his arms “against” the deputies
who were attempting to contain him, all the while loudly yelling profanities. Tr. at 47.
Once the deputies handcuffed Peters, he stiffened his body and refused to walk. Peters also
attempted to “back-walk” away from the deputies. Id. at 71. Because Peters was wearing
socks but not shoes, the deputies were able to use Peters’ bent arms to slide him along the
floor to their office.
The State charged Peters with criminal trespass, resisting law enforcement, and
disorderly conduct. The trial court found Peters guilty of all charges and sentenced Peters
to an aggregate sentence of ninety days. Additional facts will be added as necessary.
DISCUSSION AND DECISION
Peters argues on appeal that the State failed to prove the charges against him. Our
standard of reviewing claims of sufficiency of the evidence is well settled. When reviewing
the sufficiency of the evidence, we 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 reweigh the evidence or assess witness credibility. Id. We consider conflicting
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evidence most favorable to the trial court’s ruling. Id. We will affirm the conviction unless
no reasonable fact-finder could find the elements of the crime proven beyond a reasonable
doubt. Id. It is not necessary that the evidence overcome every reasonable hypothesis of
innocence. Id. The evidence is sufficient if an inference may reasonably be drawn from it
to support the verdict. Id.
Criminal Trespass
In order to prove that Peters committed criminal trespass, the State was required to
prove that Peters, “not having a contractual interest in the property, knowingly or
intentionally refus[ed] to leave the real property of another person after having been asked
to leave by the other person or that person’s agent” Ind. Code § 35-43-2-2(b)(2). The
evidence most favorable to the trial court’s judgment is that Peters had been discharged
from the hospital after being treated. The attending nurse asked Peters several times to
leave and eventually called for hospital security when Peters refused. The deputies who
responded also asked Peters to leave multiple times and informed him that he would be
arrested for criminal trespass if he did not leave the hospital. When the deputies escorted
Peters to the lobby so that he could wait for a taxi to take him home, Peters jumped out of
his wheelchair and again voiced his intention not to leave. We conclude that this evidence
proves that Peters committed criminal trespass.
Peters contends that he did not knowingly or intentionally commit criminal trespass
because he was confused, he was only told to leave the emergency room, not the hospital
itself, and because he was prevented by officers from leaving. “A person acts
‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.”
4
Ind. Code § 35-41-2-2(a). “A person acts ‘knowingly’ if, when he engages in the conduct,
he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). The
evidence presented at trial was that Peters repeatedly yelled, “I’m not fucking going!” at
the nurse and at the deputies. Tr. at 67. This permits a reasonable inference that Peters
was not confused about what he was being asked to do, namely, to leave. The deputies
told him that they were taking him to the lobby so that he could wait for a taxi, and Deputy
Danforth told Peters that he was not to return to the hospital’s property unless he was
seeking medical treatment. The trial court reasonably concluded from this evidence that
Peters was being asked to leave the hospital and not simply the treatment room. Since it
was Peters who jumped from the wheelchair as he was being escorted to the lobby, the
evidence showed that it was he, and not the deputies, who prevented him from leaving.
The State met its burden of proof that Peters acted at least knowingly, if not intentionally,
when he refused to leave the hospital. Peters essentially asks us to ignore our standard of
review on appeal by reweighing evidence and reassessing witness credibility, something
we cannot do. Drane, 867 N.E.2d at 146.
Resisting Law Enforcement
Next, Peters argues that his resisting law enforcement conviction cannot stand
because the State failed to show that he used sufficient force to resist the deputies. A person
who knowingly or intentionally forcibly resists a law enforcement officer while the officer
is lawfully engaged in the execution of the officer’s duties commits resisting law
enforcement. Ind. Code § 35-44.1-3-1(a)(2). Our Supreme Court recently summarized
what constitutes forcible resistance for purposes of the resisting law enforcement statute as
5
follows:
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.
Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013). Pulling away from officers has been
found to constitute forcible resistance. See Lopez v. State, 926 N.E.2d 1090, 1094 (Ind. Ct.
App. 2010), trans. denied; see also J.S., 843 N.E.2d 1013, 1017 (Ind. Ct. App. 2006), trans.
denied. Likewise, stiffening the body and refusing to walk are acts sufficiently forcible to
support a resisting conviction. See Johnson v. State, 833 N.E.2d 516, 519 (Ind. Ct. App.
2005); Guthrie v. State, 720 N.E.2d 7, 8 (Ind. Ct. App. 1999), trans. denied.
The evidence most favorable to the trial court’s judgment is that, as the deputies
were in the process of handcuffing Peters, he moved his arms “against” the deputies, he
stiffened his body, refused to walk, and attempted to “back-walk” from the deputies. Tr.
at 47, 71. Officer Danforth testified that it was necessary for the deputies to use their
strength to guide Peters to their office, further contributing to a reasonable inference that
Peters forcibly resisted. See Lopez, 926 N.E.2d at 1094 n.1. This evidence was sufficient
to prove that Peters resisted the deputies.
Peters’s reliance on Graham v. State, 903 N.E.2d 963 (Ind. 2009), is unavailing.
Graham is factually distinguishable, as Graham simply refused to present his hands for
6
handcuffing. Id. at 965-66. Peters did much more than that. Berberena v. State, 914
N.E.2d 780 (Ind. Ct. App. 2009), trans. denied, is equally distinguishable in that “there
[was] no evidence that [Berberena] stiffened his arms or otherwise ‘made threatening or
violent actions’ to contribute to the struggle.” Id. at 782 (citing Ajabu v. State, 704 N.E.2d
494, 496 (Ind. Ct. App. 1998)). Peters stiffened his entire body.
Peters also contends that his resisting law enforcement conviction cannot stand
because the deputies used excessive force to arrest him. This Court began addressing such
claims as part of a sufficiency of the evidence review in Shoultz v. State, 735 N.E.2d 818
(Ind. Ct. App. 2000), trans. denied. The Shoultz court reasoned that an officer could not
have been lawfully engaged in the execution of his duties during the arrest, as required by
the resisting statute, if that officer used excessive force. Id. at 823. The Shoultz court
analyzed the excessive force claim4 under a Fourth Amendment reasonableness standard
which examines the facts and circumstances of the case, including the severity of the crime,
whether the suspect posed an immediate threat to the safety of the officers or others, and
whether the suspect actively resisted arrest or attempted to evade arrest by flight. Id. at
823-24. Furthermore, the force used is judged under the objective perspective of a
reasonable officer on the scene. Id. at 824. The court found excessive force where, among
other things, the arresting officer pepper sprayed Shoultz and hit him twice with a large
flashlight even though Shoultz never threatened the officer with violence, he never touched
the officer or made threatening gestures, the officer had not informed Shoultz that he was
4
In applying that standard, the Shoultz court cited Graham v. Conner, 490 U.S. 386 (1989), which
was a federal civil rights case brought under § 1983 of the United States Code, and was not one which arose
out of a claim of sufficiency of the evidence.
7
being arrested, and the officer had not attempted to handcuff Shoultz before using force.
Id.
On appeal, Peters does not direct us to any precedent with similar facts and
circumstances to his case, and we have found none. With Shoultz and Graham in mind,
we note that Peters was disrupting a busy emergency room where other patients were
receiving care. He attempted to throw his wheelchair at the deputies and took a fighting
stance against them, whereupon he was informed that he was under arrest. Thus, Peters
posed a threat to officers and actively resisted arrest after being told arrest was imminent.
The trial court heard Peters’s version of events, that the deputies “tackled” him and caused
him pain while sliding him on his socks to their office, tr. at 140-41, and found Peters guilty
of the charge anyway. We will not second guess the weight the trial court ascribed to that
evidence, nor will be reassess Peters’s and the deputies’ credibility. Drane, 867 N.E.2d at
146. As such, we conclude that the deputies did not use excessive force to arrest Peters.
Disorderly Conduct
Peters also challenges the evidence supporting his disorderly conduct conviction.
In order to make its case on this charge, the State was required to show that Peters
recklessly, knowingly or intentionally engaged in tumultuous conduct.5 Ind. Code § 35-
45-1-3(a)(1). Peters’s sole contention on appeal pertaining to this conviction is that the
State did not prove that he engaged in tumultuous conduct. “‘Tumultuous conduct’ means
conduct that results in, or is likely to result in, serious bodily injury to a person or
5
The State’s charging information alleged that Peters engaged in fighting or tumultuous conduct.
Appellant’s App. at 24. At trial, the State argued that Peters had engaged in tumultuous conduct. Tr. at
159.
8
substantial damage to property.” Ind. Code § 35-45-1-1. Tumultuous conduct has been
found where a student threw down the objects in his hands in a manner intended to show
that he was ready to fight a school administrator, clenched his fists, and stepped towards
the administrator. Bailey v. State, 907 N.E.2d 1003, 1007 (Ind. 2009). Evidence that
Bailey clenched his fists and that the administrator felt that the student was ready to hit him
was sufficient to show that serious bodily injury was likely to result. Id.
Here, the evidence most favorable to the trial court’s judgment is that Peters
attempted to throw a wheelchair at the deputies and only abandoned that act when the chair
proved too heavy. Peters persevered by taking a fighting stance with his body leaning
forward, fists raised and clenched. The evidence further showed that Peters’s “arms were
up like he was going to harm somebody,” tr. at 21, and that Deputy Danforth felt that Peters
was preparing to strike him. We find these actions to be sufficiently analogous to Bailey
to affirm Peters’s conviction.
Affirmed.
BAKER, J., and ROBB, J., concur.
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