FILED
Oct 31 2018, 10:03 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rory Gallagher Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana Andrew A. Kobe
Section Chief, Criminal Appeals
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Laperria Marie Brooks, October 31, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-759
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy M. Jones,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G08-1707-CM-26623
Pyle, Judge.
Statement of the Case
Court of Appeals of Indiana | Opinion 18A-CR-759 | October 31, 2018 Page 1 of 7
[1] Laperria Brooks (“Brooks”) was convicted following a bench trial of Class A
misdemeanor criminal trespass,1 Class A misdemeanor resisting law
enforcement,2 and Class B misdemeanor disorderly conduct.3 On appeal,
Brooks argues that there was insufficient evidence to support only her
conviction for resisting law enforcement. Finding that there was insufficient
evidence to support her conviction, we reverse her conviction for resisting law
enforcement. We remand with instructions for the trial court to vacate the
Class A misdemeanor resisting law enforcement conviction and enter a new
sentencing order and abstract of judgment to reflect the vacated conviction.
[2] We reverse.
Issue
Whether there was sufficient evidence to support Brooks’ resisting law
enforcement conviction.
Facts
[3] On July 19, 2017, Brooks attempted to cash a check at a Kroger store in
Indianapolis. Brooks became upset when the manager told her that Kroger
would not cash her check because she did not have proper identification.
Brooks started yelling loudly and “disrupting the whole store.” (Tr. 8). The
1
IND. CODE § 35-43-2-2.
2
I.C. § 35-44.1-3-1.
3
I.C. § 35-45-1-3.
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manager informed Brooks that she needed to leave the store several times, but
she refused. The manager then called the police.
[4] Officer Jonathon Willey (“Officer Willey”) of the Indianapolis Metropolitan
Police Department arrived at the Kroger store and found Brooks refusing to
leave the store. Brooks was still yelling loudly and attracting the attention of
other customers. Officer Willey told Brooks multiple times to stop yelling and
to leave the store, but Brooks refused. Eventually, Officer Willey put his arm
around Brooks and tried to walk her out of Kroger. Brooks recoiled at Officer
Willey’s touch. Brooks told Officer Willey that she would walk out of the store
if he took his arm off her. Officer Willey removed his arm, and Brooks left the
store.
[5] After Brooks left Kroger, Officer Willey told her that she needed to leave the
parking lot as well. Brooks refused and continued to be “very loud” even after
Officer Willey warned her multiple times that she would be arrested for
trespassing if she did not leave. (Tr. 15). Brooks refused to leave the parking
lot. Officer Willey informed Brooks that she was under arrest and to put her
hands behind her back. When Officer Willey tried to handcuff Brooks, “[s]he
tensed up and wouldn’t give [him] her arms.” (Tr. 15). At trial, the State asked
Officer Willey, “[w]as [Brooks] using force to get away?” (Tr. 16). Officer
Willey responded, “[s]he was using her physical stature to not give us her
arms.” (Tr. 16). With the assistance of a second officer, Officer Willey was
able to handcuff Brooks and place her under arrest.
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[6] On July 20, 2017, the State charged Brooks with: Count I, criminal trespass, a
Class A misdemeanor; Count II resisting law enforcement, a Class A
misdemeanor; and Count III, disorderly conduct, a Class B misdemeanor. The
matter proceeded to a bench trial on March 9, 2018. Brooks, the Kroger
manager, and Officer Willey testified to the facts above. The trial court found
Brooks guilty of all three counts. The trial court sentenced Brooks to
concurrent sentences of one (1) year on Counts I and II, with a concurrent
sentence of 180 days on Count III. The court suspended the sentence, except
for time served, and sentenced Brooks to 361 days of probation.
Decision
[7] Brooks challenges the sufficiency of the evidence for only her resisting law
enforcement conviction. Our standard of review for sufficiency of evidence
claims is well settled. We do not assess the credibility of the witnesses or
reweigh the evidence in determining whether the evidence is sufficient. Drane v.
State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only the probative
evidence and reasonable inferences supporting the verdict. Id. Reversal is
appropriate only when no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt. Id.
[8] In order to convict Brooks of resisting law enforcement, the State was required
to prove beyond a reasonable doubt that: (1) Brooks; (2) knowingly; (3) forcibly
resisted, obstructed, or interfered with; (4) Jonathan Willey, a law enforcement
officer; (6) while said officer was lawfully engaged in his duties as a law
Court of Appeals of Indiana | Opinion 18A-CR-759 | October 31, 2018 Page 4 of 7
enforcement officer. I.C. § 35-44.1-3-1(a)(1) (emphasis added). On appeal,
Brooks maintains that the evidence is insufficient to show that she forcibly
resisted Officer Willey. We agree.
[9] Our supreme court held that any action to resist must be done with force.
Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993) (reversing defendant’s
conviction for resisting law enforcement because there was insufficient evidence
of force where defendant merely resisted service of process by vehemently
refusing to accept service and turning and walking away). “[O]ne ‘forcibly
resists’ law enforcement when strong, powerful, violent means are used to evade a
law enforcement official’s rightful exercise of his or her duties.” Id. at 723
(emphasis added). The forcible resistance element requires “some form of
violent action toward another.” Id. at 724. “It is error as a matter of law to
conclude that ‘forcibly resists’ includes all actions that are not passive.” Id.
“The force involved need not rise to the level of mayhem.” Graham v. State, 903
N.E.2d 963, 965 (Ind. 2009). Indeed, “turn[ing] [and] pull[ing] away” from a
law enforcement encounter, K.W. v. State, 984 N.E.2d 610, 612-13 (Ind. 2013),
leaning away from an officer’s grasp, A.C. v. State, 929 N.E.2d 907, 912 (Ind.
Ct. App. 2010), refusing to present arms for handcuffing, Graham, 903 N.E.2d
966, “twisting and turning ‘a little bit’” against an officer’s actions, Ajabu v.
State, 704 N.E.2d 494, 495-96 (Ind. Ct. App. 1998), or walking away from a law
enforcement encounter, Spangler, 607 N.E.2d at 724, do not establish forcibly
resisting law enforcement.
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[10] In the instant case, both Officer Willey and Brooks testified to the events
surrounding her arrest. Officer Willey testified in relevant part as follows:
[Officer Willey]: She tensed up and wouldn’t give me her arms.
* * *
[Officer Willey]: She just kept tensing up and pulling away.
* * *
[State]: Was she using force to get away?
[Officer Willey]: She was using her physical stature to not give
us her arms.
(Tr. 15-16). Brooks testified on direct examination as follows:
[Brooks’ Attorney]: And you admit that you did tense up when
he touched you. Right?
[Brooks]: Yes sir.
[Brooks’ Attorney]: And you pulled away some?
[Brooks]: Yes sir.
(Tr. 23).
[11] Here, nothing in the testimony from Officer Willey or Brooks suggests that she
employed any “strength, power, or violence” against the officers. See Spangler,
607 N.E.2d at 724. There is no specific testimony to even suggest that Officer
Willey had to use force to execute the arrest. There was no movement or
threatening gesture made in the direction of Officer Willey. Indeed, Officer
Willey was specifically asked whether or not Brooks used force to get away,
and he did not answer in the affirmative.
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[12] The State argues that Brooks “used physical force against the officer to prevent
the officer from handcuffing her . . . .” (State’s Br. 7). As detailed above, the
facts supporting this argument are not found within the record. The evidence
“demonstrates obnoxious disrespect for authority, but not the use of any force”
by Brooks. See Graham, 903 N.E.2d at 964. Accordingly, we hold that the State
failed to present sufficient evidence to prove beyond a reasonable doubt that
Brooks forcibly resisted the officer. Therefore, we reverse Brooks’ conviction
for Class A misdemeanor resisting law enforcement.
[13] Reversed.
Najam, J., and Crone, J., concur.
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