MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 29 2016, 9:41 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
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
Stanley L. Campbell Gregory F. Zoeller
Fort Wayne, Indiana Attorney General of Indiana
James B. Martin
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keith E. Hopkins, Jr., December 29, 2016
Appellant-Defendant, Court of Appeals Case No.
02A03-1607-CR-1588
v. Appeal from the Allen Superior
Court
State of Indiana, The Honorable Wendy W. Davis,
Appellee-Plaintiff Judge
Trial Court Cause No.
02D05-1511-F6-1125
Baker, Judge.
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[1] Keith Hopkins appeals his convictions for two counts of Class A Misdemeanor
Resisting Law Enforcement.1 Hopkins argues that police officers effected an
unconstitutional warrantless arrest and that there is insufficient evidence
supporting the convictions. Finding no constitutional violation and sufficient
evidence, we affirm.
Facts
[2] On November 14, 2015, sometime after 2:30 a.m., the Fort Wayne Police
Department received a hang-up 911 call. Officer Lucas McDonald responded
to the residence where the call originated. He knocked on the door of the
home, later identified as the home of Hopkins’s parents, and a man, later
identified as Hopkins, answered the door. Officer McDonald asked Hopkins if
everything was okay and Hopkins said everything was fine. Officer McDonald
then
noticed that there was a woman, didn’t know who she was,
didn’t know who he was either at the time. . . . She was
obviously very upset, crying, just looked like she had been really
upset maybe and so I asked her what her name was, and
[Hopkins] interrupted and spoke for her and said she doesn’t
have to give that to you . . . .
Tr. Vol. I p. 232-33. Additionally, the officer noticed another man sitting on a
couch inside the house. Officer McDonald observed the following of Hopkins:
1
Ind. Code § 35-44.1-3-1
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He looked very angry. His body was tense. He had a small kind
of like wound with blood freshly trickling out on his arm, very
short, very stern voice, aggressive, argumentative, uncooperative,
very uncooperative.
Id. at 233. Hopkins closed the door on the officer’s arm and the officer returned
to his vehicle.
[3] Feeling concerned about the situation, Officer McDonald ran a check on
Hopkins and learned that there were mutual protective orders in place between
Hopkins and Leah Hutchinson. As Officer McDonald did not have a picture of
Hutchinson, he was unable to determine whether the upset woman inside the
house was her. At Officer McDonald’s request, Officer Jhormy Martinez went
to Hutchinson’s home to talk with her. Hutchinson, who was crying and had a
fearful demeanor, reported to Officer Martinez that Hopkins had just choked
and assaulted her in front of their child and that she had stabbed him to make
him stop. She had bruising on her face, red marks around her neck, and red
abrasions on her chest area. Officer Martinez related to Officer McDonald that
there was probable cause for charges against Hopkins.
[4] In the meantime, Officer McDonald had also learned that Hopkins was on
parole for possession of a firearm by a serious violent felon. Officer Tim
Hughes arrived to the scene and the two officers formulated a plan about how
to engage Hopkins in a safe manner. The officers were concerned about the
safety of the other people inside the residence, the fact that there may have been
a gun inside the home, and the possibility that Hopkins could barricade himself
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inside the home. Officer Hughes approached the house and Hopkins opened
the door; Officer Hughes tried to encourage Hopkins to come out and speak
with the officers, but he refused. The officer also asked if Hopkins could send
out the other family members present in the house; Hopkins reported that they
did not want to leave.
[5] Finally, after other efforts had failed, the officers decided to employ a taser so
that they could effect a peaceful arrest. Hopkins was told that he was going to
be arrested and was then tased, but the taser deployed ineffectively and Hopkins
was able to flee. He ran through the house and out the back door, and the
officers pursued him on foot for over two blocks. When the officers finally
reached him, Hopkins began to comply by walking over to them. One officer
approached Hopkins and grabbed his right arm, but Hopkins was tensing and
turning away, requiring the officer to keep pulling on the arm to get it behind
Hopkins’s back so that handcuffs could be applied. It required the efforts of
three officers to get Hopkins handcuffed. Hopkins began shifting his weight
and evading the handcuffs; finally, one of the officers administered two bursts
of mace to Hopkins’s face and they were able to handcuff his hands behind his
back.
[6] On November 18, 2015, the State charged Hopkins with Level 6 felony battery,
Level 6 felony strangulation, Class A misdemeanor interference with the
reporting of a crime, and two counts of Class A misdemeanor resisting law
enforcement. Hopkins’s jury trial took place on May 25 and 26, 2016, after
which the jury found him guilty of two counts of resisting law enforcement and
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not guilty of the remaining charges. On June 13, 2016, the trial court sentenced
Hopkins to one year for the first count and six months for the second count, to
be served consecutively. Hopkins now appeals.
Discussion and Decision
I. Probable Cause
[7] Hopkins first argues that law enforcement did not have probable cause to arrest
him without a warrant. Initially, we note that Hopkins did not file a motion to
suppress prior to trial or object in any way on this basis during trial. As a result,
he has unquestionably waived this argument. E.g., Butler v. State, 724 N.E.2d
600, 604 (Ind. 2000).2
[8] Waiver notwithstanding, we note that Indiana Code section 35-33-1-1(a)(5)
explicitly authorizes a law enforcement officer to effect a warrantless arrest of
an individual if the officer has probable cause to believe that the person has
committed battery resulting in bodily injury or domestic battery. See also I.C. §
35-33-1-1(a)(2) (authorizing warrantless arrest of individual whom law
enforcement has probable cause to believe has committed a felony). In this
case, Hutchinson told Officer Martinez that Hopkins had choked and assaulted
her in front of their child, and the officer observed bruising on her face, red
2
The State explicitly instructed the officers who testified not to refer to the fact that Hopkins was on parole
for possession of a firearm by a serious violent felon. Had Hopkins raised a probable cause argument, this
fact would have come to light for the jury (Hopkins contends that the jury should have decided the issue). It
is manifestly unfair for him to have had the benefit of the jury’s ignorance of this prejudicial fact and then
raise this argument for the first time on appeal.
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marks around her neck, and red abrasions on her chest. Hutchinson also
reported that she had stabbed Hopkins to get him off of her. Officer McDonald
had observed Hopkins to be angry, tense, aggressive, and to have a small
wound on his arm that was bleeding. These facts certainly constitute probable
cause to believe that Hopkins had committed battery resulting in bodily injury
and/or domestic battery. Consequently, law enforcement was statutorily
authorized to effect a warrantless arrest.
[9] Probable cause for the purpose of the above statute likewise constitutes probable
cause for the purpose of the Fourth Amendment to the United States
Constitution. Hopkins argues that, in addition to probable cause, law
enforcement was required to identify exigent circumstances to effect the
warrantless arrest. Sapen v. Indiana, 869 N.E.2d 1273, 1276-77 (Ind. Ct. App.
2007) (holding that, for Fourth Amendment purposes, the warrantless arrest of
a person in his home3 requires both probable cause and exigent circumstances
making it impracticable to obtain a warrant first). The record here reveals the
following:
When Officer McDonald first responded, he observed an angry, tense,
aggressive Hopkins, who had a bleeding wound on his arm. The officer
also saw a woman inside who was upset and crying and another man
sitting on a couch.
3
We note that here, Hopkins was eventually arrested blocks away from his home. But even if he had been in
his home when arrested, his argument is unavailing.
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Officer McDonald then learned that Hopkins and Hutchinson had
mutual protective orders and that Hopkins was on parole for possession
of a firearm by a serious violent felon.
Officer Martinez spoke to Hutchinson, who stated that Hopkins had
assaulted her and had the physical wounds to corroborate her statements.
From all of these facts, the officers had several reasonable concerns:
(1) Hopkins may have had one or more firearms in his house; (2) the other
people in the house, including the woman who was visibly upset, may have
been in danger; and (3) there was a very real chance that Hopkins would
barricade himself inside the house with other people inside of it. We find that
these facts constitute exigent circumstances such that the warrantless arrest of
Hopkins was not unconstitutional.4 We find no error in the admission of
evidence stemming from the warrantless arrest of Hopkins.
II. Sufficiency
[10] Next, Hopkins argues that there is insufficient evidence supporting his two
convictions for Class A misdemeanor resisting law enforcement. When
reviewing a claim of insufficient evidence, we will consider only the evidence
and reasonable inferences that support the conviction. Gray v. State, 957 N.E.2d
171, 174 (Ind. 2011). We will affirm if, based on the evidence and inferences, a
4
Hopkins does not articulate separate arguments under both the Indiana and United States Constitutions,
and we will not do so on his behalf. We note, however, that he would be unsuccessful under either
constitution in any event.
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reasonable jury could have found the defendant guilty beyond a reasonable
doubt. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009).
A. Resisting By Flight
[11] To convict Hopkins of resisting law enforcement by flight, the State was
required to prove beyond a reasonable doubt that he fled from a law
enforcement officer after the officer had, by visible or audible means, identified
himself and ordered Hopkins to stop. I.C. § 35-44-3-3(a)(3). Hopkins concedes
all of these elements. He merely argues that the police did not have probable
cause to believe that he had committed an offense and, thus, to arrest and order
him to stop. Specifically, he argues that the record does not reveal what specific
statements Officer Martinez made to Officer McDonald about what
Hutchinson had said.
[12] We disagree. An officer may, in good faith, rely on information communicated
by another officer to establish probable cause. Row v. Holt, 864 N.E.2d 1011,
1019 (Ind. 2007). And so long as sufficient knowledge to establish probable
cause exists within the organization, the arrest is valid based on the collective
information of the officers. Id. As noted above, Hutchinson told Officer
Martinez that Hopkins had assaulted her, and the officer observed bruising to
her face, red marks around her neck, and abrasions to her chest. Officer
Martinez testified that he reported back to Officer McDonald that there was
probable cause for the arrest. This evidence suffices to establish that law
enforcement at the scene had probable cause to arrest Hopkins and, obviously,
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to order him to stop when he fled. We find the evidence sufficient to support
this conviction.
B. Resisting By Force
[13] To convict Hopkins of resisting law enforcement by force, the State was
required to prove beyond a reasonable doubt that he knowingly or intentionally
forcibly resisted, obstructed, or interfered with a law enforcement officer who
was lawfully engaged in the execution of the officer’s duties. I.C. § 35-44.1-3-
1(a)(1). One forcibly resists when “strong, powerful, violent means are used to
evade a law enforcement official’s rightful exercise of his or her duties.” Glenn
v. State, 999 N.E.2d 859, 861 (Ind. Ct. App. 2013). Specifically, our Supreme
Court has held that a defendant forcibly resisted when he pushed away with his
shoulders while cursing and yelling and then “stiffens up.” Graham v. State, 903
N.E.2d 963, 965 (Ind. 2009).
[14] One officer testified that he tried to gain control of Hopkins’s arm but that
Hopkins would not “let us gain control of it. He was tensing, turning away
from me. I had to keep pulling on it to get it behind him . . . .” Tr. Vol. II p.
32. Hopkins eventually ended up on the ground on his stomach and began to
struggle, “shifting his body, shifting his weight. To me, it appeared that he was
trying to get out from underneath me to flee again or to escape . . . .” Id. at 55.
All told, it took three police officers and two bursts of mace to Hopkins’s face to
get him sufficiently subdued to place handcuffs on his wrists. We find that a
reasonable factfinder could have found Hopkins guilty of resisting law
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enforcement by force based upon this evidence. In other words, the evidence is
sufficient.
[15] The judgment of the trial court is affirmed.
May, J., and Pyle, J., concur.
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