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 Jun 06 2014, 8:45 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MICHAEL R. FISHER GREGORY F. ZOELLER
Marion County Public Defender Attorney General of Indiana
Appellate Division
Indianapolis, Indiana LARRY D. ALLEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
CHARLES HOWLETT, )
)
Appellant-Defendant, )
)
vs. ) No. 49A04-1312-CR-600
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Clark H. Rogers, Judge
Cause No. 49F25-1307-FD-47459
June 6, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
BRADFORD, Judge
CASE SUMMARY
On July 20, 2013, members of the Indianapolis Metropolitan Police Department
(“IMPD”) responded to the scene of an alleged assault. Officer Michael Anderson, a trained
evidence technician, was dispatched to the scene to assist in the investigation. Upon arriving
at the scene, Officer Anderson learned that the victim, Jeffrey Hack, reported that his
neighbor, Appellant-Defendant Charles Howlett, broke into Hack’s home, hit him several
times, and bound Hack’s hands and mouth with tape. At some point, Officer Anderson
noticed a man matching the description of Howlett standing in what Hack described as
Howlett’s front yard. Officer Anderson approached Howlett. Officer Anderson grabbed
Howlett’s left arm after Howlett attempted to walk away from Officer Anderson and ignored
Officer Anderson’s instruction to stop. Howlett shoved Officer Anderson’s hand off of his
shoulder and cursed at Officer Anderson. Howlett was subsequently arrested.
Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged Howlett
with a number of offenses, including one count of Class A misdemeanor resisting law
enforcement. Following a bench trial, the trial court found Howlett guilty of the resisting law
enforcement charge and not guilty of the remaining charges and imposed a 365-day sentence.
The trial court gave Howlett credit for time served and suspended the remainder of the
sentence. On appeal, Howlett contends that the State did not present sufficient evidence to
sustain his conviction for Class A misdemeanor resisting law enforcement. We affirm.
FACTS AND PROCEDURAL HISTORY
On July 20, 2013, Hack called IMPD to report that his neighbor, Howlett, broke into
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Hack’s home, hit Hack several times, and bound Hack’s hands and mouth with tape. Officer
Anderson, a trained evidence technician, was dispatched to the scene to assist in the
investigation. Upon arriving at the scene, Officer Anderson met with Officer Ron Sayles to
discuss the investigation, including the evidence that needed to be gathered. Officer Sayles
informed Officer Anderson that Hack identified Howlett as his assailant and informed the
investigating officers of which home belonged to Howlett. Officer Anderson subsequently
took pictures of Hack and the damage to the front door of Hack’s residence. As Officer
Anderson, who was in full police uniform, was putting his camera equipment into the trunk
of his marked police cruiser, he saw a man standing in what Hack indicated was Howlett’s
front yard taking pictures of the police officers. The man also matched the description of
Howlett given by Hack.
Recognizing that Howlett was a suspect in the ongoing assault investigation, Officer
Anderson approached Howlett, who was still standing in his front yard, and told Howlett that
the officers needed to speak to him regarding the ongoing investigation. Howlett attempted
to walk away from Officer Anderson, even after Officer Anderson instructed him to stop.
Officer Anderson grabbed Howlett’s left arm and began to walk with Howlett back towards
the street. Howlett then “shoved [Officer Anderson’s] hand off of his arm and said get the
f[***] off of me.” Tr. pp. 18, 20-21. Howlett was subsequently placed under arrest.
On July 23, 2013, the State charged Howlett with Class D felony criminal
confinement, Class D felony residential entry, Class D felony intimidation, Class D felony
obstruction of justice, Class A misdemeanor battery on an officer, Class A misdemeanor
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resisting law enforcement, Class B misdemeanor battery, and three counts of Class A
misdemeanor invasion of privacy. On October 30, 2013, the trial court conducted a bench
trial during which Howlett admitted that he “did jerk away from” Officer Anderson. Tr. p.
37. Following the bench trial, the trial court found Howlett guilty of Class A misdemeanor
resisting law enforcement. The trial court found Howlett not guilty of each of the remaining
charges. On November 13, 2013, the trial court sentenced Howlett to a term of 365 days.
The trial court gave Howlett credit for time served prior to sentencing and suspended the
remainder of the sentence. This appeal follows.
DISCUSSION AND DECISION
Howlett 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 fact-finder 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) (citations, emphasis, and quotations
omitted). “In essence, we assess only whether the verdict could be reached based on
reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968
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N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Upon review, appellate courts do not
reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d
433, 435 (Ind. 2002).
The offense of resisting law enforcement is governed by Indiana Code section 35-44-
3-3, which provides, in relevant part, that “(a) A person who knowingly or intentionally: (1)
forcibly resists, obstructs, or interferes with a law enforcement officer … while the officer is
lawfully engaged in the execution of the officer’s duties … commits resisting law
enforcement, a Class A misdemeanor.” The word “forcibly” modifies “resists, obstructs, or
interferes,” making force an element of the offense. See Graham v. State, 903 N.E.2d 963,
965 (Ind. 2009); Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). Thus, to convict
Howlett of Class A misdemeanor resisting law enforcement, the State needed to prove that
Howlett: (1) knowingly or intentionally (2) forcibly resisted, obstructed, or interfered with
Officer Anderson (3) while Officer Anderson was lawfully engaged in the execution of his
duties. One “forcibly resists,” for purposes of forcibly resisting law enforcement, when one
uses “strong, powerful, violent means” to evade a law enforcement official’s rightful exercise
of his or her duties. Graham, 903 N.E.2d at 965; Spangler, 607 N.E.2d at 726.
In Graham, the Indiana Supreme Court held that in determining that an individual
forcibly resisted, the force involved need not rise to the level of mayhem, and discussed with
approval this court’s determination in Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App. 2005),
that a defendant had forcibly resisted law enforcement officers by “push[ing] away with his
shoulders while cursing and yelling” as the officer attempted to search him and by
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“stiffen[ing] up” as officers attempted to put him into a police vehicle, requiring the officers
to “get physical in order to put him inside.” Graham, 903 N.E.2d at 965-66. In Glenn v.
State, 999 N.E.2d 859, 862 (Ind. Ct. App. 2013), this court concluded that the defendant
exhibited sufficient force to sustain her conviction for resisting law enforcement when the
defendant “on more than one occasion, ‘aggressively’ tried to pull away” from the arresting
officer. In Lopez v. State, 926 N.E.2d 1090, 1094 (Ind. Ct. App. 2010), trans. denied, this
court concluded that the defendant exhibited sufficient force to sustain his conviction for
resisting law enforcement when the defendant refused to stand or uncross his arms upon
being ordered to do so by the arresting officer and attempted to pull away from the arresting
officer, requiring the officer to use physical force to arrest him. Likewise, in J.S. v. State,
843 N.E.2d 1013, 1017 (Ind. Ct. App. 2006), trans. denied, this court concluded that the
evidence was sufficient to sustain the juvenile’s adjudication for what would be resisting law
enforcement if committed by an adult when the evidence demonstrated that the juvenile
“pulled,” “yanked,” and “jerked” away from the officer, and was “flailing her arms,”
“squirming her body,” and “making it impossible for [the officer] to hold her hands.”
Howlett claims on appeal that the evidence is insufficient to sustain a determination
that he forcibly resisted Officer Anderson. The evidence, however, demonstrates that
Howlett, a suspect in the ongoing assault investigation, used force to resist Officer
Anderson’s attempt to detain Howlett. Officer Anderson approached Howlett, who was
standing in his front yard, and told Howlett that the officers needed to speak to him regarding
the ongoing investigation. Howlett attempted to walk away from Officer Anderson, even
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after Officer Anderson instructed him to stop. Officer Anderson grabbed Howlett’s left arm
and began to walk back towards the street. Howlett then “shoved [Officer Anderson’s] hand
off of his arm and said get the f[***] off of me.” Tr. pp. 18, 20-21. In addition, Howlett
subsequently admitted at trial that he “did jerk away from” Officer Anderson. Tr. p. 37. We
conclude that Howlett’s act of jerking away from Officer Anderson or shoving Officer
Anderson’s hand off his shoulder while cursing at Officer Anderson is sufficient to prove
that Howlett forcibly resisted Officer Anderson.
Howlett also claims that the evidence is insufficient to sustain a determination that
Officer Anderson was lawfully engaged in the execution of his duties when he approached
Howlett. In support, Howlett argues that Officer Anderson had no reason to suspect him of
any wrongdoing and, as such, could not lawfully detain Howlett. Thus, Howlett asserts that
his encounter with Officer Anderson was nothing more than a consensual encounter and, as
such, he was entitled to exert minimal resistance to protect himself from the unlawful entry
onto his property by Officer Anderson. Howlett’s argument, however, is without merit as the
evidence demonstrates that Officer Anderson had probable cause to believe that Howlett was
a suspect in an ongoing police investigation. See generally Robles v. State, 510 N.E.2d 660,
664 (Ind. 1987) (providing that probable cause exists where facts and circumstances within
the knowledge of the officer, when based on reasonably trustworthy information, are
sufficient for a reasonable person to believe an offense has been committed by the
defendant).
Again, after recognizing Howlett as the person described by Hack to be his attacker,
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Officer Anderson approached Howlett, who was standing in his front yard taking pictures of
police, and indicated that the officers needed to speak to him regarding the ongoing
investigation. Officer Anderson testified at trial that his “sole reason of going onto
[Howlett’s] property” was to apprehend the suspect of an alleged assault. Tr. p. 19. The
evidence demonstrates that, despite Howlett’s claim to the contrary, Officer Anderson had
probable cause to believe that Howlett had assaulted Hack and, as such, was lawfully
engaged in the execution of his police duties when he approached and detained Howlett. See
generally Robles, 510 N.E.2d at 664.
The evidence presented at trial is sufficient to sustain the trial court’s determination
that Howlett forcibly resisted Officer Anderson while Officer Anderson was lawfully
engaged in the execution of his duties. Howlett’s claim to the contrary effectively amounts to
an invitation for this court to reweigh the evidence, which we will not do. See Stewart, 768
N.E.2d at 435.
The judgment of the trial court is affirmed.
RILEY, J., and ROBB, J., concur.
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