MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jul 31 2018, 9:16 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark F. James Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Evan Matthew Comer
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Duane Lamar Herron, July 31, 2018
Appellant-Defendant, Court of Appeals Case No.
71A03-1712-CR-2798
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Jeffrey L. Sanford,
Appellee-Plaintiff Judge
Trial Court Cause No.
71D03-1708-F6-708, 71D03-1708-
F6-710, 71D03-1501-F6-17
Altice, Judge.
Case Summary
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[1] Duane Lamar Herron appeals his convictions, under separate causes, for two
counts of Level 6 felony invasion of privacy and one count of Class A
misdemeanor resisting law enforcement. He argues that the evidence was
insufficient to support each conviction.
[2] We affirm.
Facts & Procedural History
[3] On February 21, 2017, Margaret Martinez obtained a protective order against
Herron, her boyfriend of several months. A copy of the protective order was
left on the door of Herron’s mother’s home two days later.1 Herron went to
Martinez’s home several days later, and she called the police. When the police
arrived, Herron denied knowledge of the protective order. Herron was arrested
and charged with invasion of privacy. Following a bench trial, at which Herron
represented himself and the protective order was admitted into evidence,
Herron was found not guilty on April 5, 2017.
[4] Thereafter, Herron discussed the protective order with Martinez on more than
one occasion, as the two continued to see each other. Martinez filled out
dismissal paperwork for the protective order at Herron’s direction and gave it to
him to file with the court, but Herron never did so. The protective order
remains active and is not set to expire until February 21, 2019.
1
Herron did not have his own residence and often stayed with his mother and received mail at her home.
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[5] On July 25, 2017, Herron went to the fast food restaurant where Martinez was
working. He was upset because Martinez had not been responding to his text
messages. To calm him down and not make a scene, Martinez sat with him for
a bit and then went outside with him. They began arguing outside. When
Martinez turned to walk away, Herron grabbed her cellphone from her back
pocket and fled on foot. The police were called to the scene, but Herron could
not be located.
[6] Two days later, Herron called Martinez and accused her of being with another
man. He then showed up on her front porch. Herron threatened Martinez with
violence and death and indicated that he would rather go back to prison than to
let her go. Martinez refused to let him in, calling the police instead. Martinez
informed dispatch that Herron might be armed with a knife.
[7] Officers Shawn Fredenburg and Ryan O’Neill of the South Bend Police
Department arrived on the scene. As they walked up to the residence in full
police uniform, Martinez came onto the porch, and Herron demanded to know
why the officers were there. Herron refused requests from the officers to come
off the porch. The officers then went onto the porch to arrest Herron for
violating the protective order.
[8] When Herron refused to turn around to be handcuffed, each officer grabbed one
of his arms. Herron then “started to try to pull away and thrash back and
forth”. Transcript Vol. 2 at 132. The officers attempted to gain control of
Herron for about thirty seconds in “just kind of [a] furious back and forth” as
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Herron tried to get away. Id. Officer Fredenburg then issued a knee strike to
Herron, which proved ineffective. After an additional struggle, Officer
Fredenburg punched Herron in the face and was able to gain control over him
with Herron stating, “I’m done”. Id. at 119. A third officer who had just
arrived on the scene was then able to place handcuffs on him.
[9] On August 2, 2017, the State charged Herron under cause number 71D03-1798-
F6-708 (F6-708) for the events of July 27, 2017: Class A misdemeanor invasion
of privacy (Count I); Level 6 felony intimidation (Count II); Class A
misdemeanor resisting law enforcement (Count III); and Level 6 felony
invasion of privacy with a prior conviction for invasion of privacy 2 (Count IV).
On that same date, the State charged Herron under cause number 71D03-1708-
F6-710 (F6-710) regarding the events of July 25, 2017: Class A misdemeanor
invasion of privacy (Count I); Class A misdemeanor conversion (Count II); and
Level 6 felony invasion of privacy with a prior conviction for invasion of
privacy (Count III).
[10] In both cases, Herron waived his right to a jury trial and chose to represent
himself. A bench trial was conducted in each cause on September 29, 2017,
with F6-708 being heard in the morning and F6-710 being heard in the
afternoon. The trial court took both matters under advisement and, thereafter,
found Herron guilty as charged in both causes. At the joint sentencing hearing
2
Herron has a prior conviction under cause number 71D08-1507-F6-480 for three counts of Class A
misdemeanor invasion of privacy. He was sentenced in that case on January 11, 2016.
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on November 9, 2017, the trial court entered judgments of conviction on
Counts II, III, and IV in F6-708 and Counts II and III in F6-710. The court
imposed an aggregate sentence of sixty months in prison and recommended
purposeful incarceration.
[11] Herron appeals, arguing that the evidence was insufficient with respect to his
convictions for invasion of privacy and resisting law enforcement. He does not
challenge his convictions for intimidation and conversion on appeal.
Discussion & Decision
[12] When we consider a challenge to the sufficiency of the evidence, we neither
reweigh the evidence nor assess the credibility of the witnesses. Suggs v. State,
51 N.E.3d 1190, 1193 (Ind. 2016). Instead, we consider only the evidence and
reasonable inferences supporting the conviction. Id. We will affirm if there is
probative evidence from which a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt. Id.
[13] With respect to the convictions for invasion of privacy, Herron argues that he
did not knowingly violate the protective order because he lacked knowledge of
its existence. Specifically, he asserts that he was not served with notice of the
protective order and that Martinez allowed him to be around her on many
occasions despite the protective order.
[14] The State was required to prove beyond a reasonable doubt that Herron
knowingly or intentionally violated the protective order. See Ind. Code § 35-46-
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1-15.1. The State, however, was not required to establish that Herron was
actually served with the protective order. See Joslyn v. State, 942 N.E.2d 809,
811-12 (Ind. 2011). All that was required was evidence that Herron had actual
knowledge of the order and adequate indication of its terms. See Tharp v. State,
942 N.E.2d 814, 818 (Ind. 2011).
[15] The evidence clearly establishes that Herron had actual knowledge of the
protective order and its terms when he had contact with Martinez on July 25
and 27, 2017. Indeed, only months earlier he had been arrested, charged, and
tried on allegations that he had violated the very same protective order. Herron
represented himself at that trial. Further, Herron had multiple conversations
with Martinez regarding the protective order and his desire that she have it
dismissed. He even went so far as to have her fill out a form seeking dismissal
of the protective order. He took that form but never filed it with the court.
Herron’s self-serving claims that he was not aware that the protective order was
in effect lack merit. Further, Martinez’s alleged willingness to allow Herron to
be around her despite the protective order is of no moment. See Smith v. State,
999 N.E.2d 914, 918 (Ind. Ct. App. 2013) (“when determining whether
[defendant] committed the offense of invasion of privacy, we do not consider
whether [victim] knowingly ignored the protective order but, rather, whether
[defendant] knowingly violated the order”), trans. denied; see also Ind. Code § 34-
26-5-11 (“If a respondent is excluded from the residence of a petitioner or
ordered to stay away from a petitioner, an invitation by the petitioner to do so
does not waive or nullify an order for protection.”).
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[16] Turning to the conviction for resisting law enforcement, Herron argues that the
State failed to establish that he forcibly resisted the officers.3 He asserts –
wrongly – that Officers Fredenburg and O’Neill testified he was “only pulling
his arms away.” Appellant’s Brief at 9.
[17] Our Supreme Court has summarized the “forcibly” element as follows:
[N]ot 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.
Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013). See also Graham v. State, 903
N.E.2d 963, 965 (Ind. 2009) (“force involved need not rise to the level of
mayhem”; “even ‘stiffening’ of one’s arms when an officer grabs hold to
position them for cuffing would suffice”).
3
Ind. Code § 35-44.1-3-1(a)(1) provides that a person commits resisting law enforcement when they
knowingly or intentionally forcibly resist, obstruct, or interfere with a law enforcement officer or person
assisting the officer while the officer is lawfully engaged in the execution of the officer’s duties.
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[18] The State presented ample evidence that Herron forcibly resisted attempts by
Officers Fredenburg and O’Neill to arrest him. He not only pulled away but
“thrash[ed] back and forth” and tried to get away by engaging in a “furious
back and forth” with the officers. Transcript Vol. 2 at 132. Herron continued to
struggle with the officers even after Officer Fredenburg issued a knee strike to
try to take Herron to the ground. It took a punch in the face and the arrival of a
third officer in order to subdue Herron. In sum, the evidence shows that
Herron used strong, powerful means to impede the officers’ in their lawful
execution of their duties.
[19] Judgments affirmed.
Najam, J. and Robb, J., concur.
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