FILED
May 28 2019, 8:36 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Rory Gallagher Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
J.T. Whitehead
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cordell O. Spencer, May 28, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2878
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable
Appellee-Plaintiff Clayton Graham, Judge
Trial Court Cause No.
49G07-1708-CM-30572
Vaidik, Chief Judge.
Case Summary
[1] Cordell O. Spencer appeals his conviction for Class A misdemeanor resisting
law enforcement by force. He argues that the trial court erred in declining to
give his tendered jury instruction on “force,” which included examples from
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cases where our appellate courts concluded that the “force” element was not
satisfied. Because the proposed instruction emphasized particular factual
scenarios, thereby minimizing other potentially relevant evidence, the trial court
did not abuse its discretion in declining to give it.
Facts and Procedural History
[2] The evidence most favorable to the verdict reveals that on the afternoon of
August 19, 2017, Indianapolis Metropolitan Police Department Officer Ryan
Lundy was on duty when he received a dispatch of “[s]hots fired” in an alley in
the 1500 block of North Grant Avenue. Tr. p. 65. Officer Lundy arrived in a
couple of minutes and saw a car parked in some grass right off the alley with a
foot sticking out of the open driver’s window. As Officer Lundy approached
the car to investigate, he saw a woman in the driver’s seat talking on her cell
phone. As Officer Lundy got closer to the car, Spencer quickly exited the front
passenger door, which “startled” Officer Lundy because he didn’t know there
was a passenger. Id. at 71. After Spencer exited the car, Officer Lundy looked
through the open driver’s window and saw two handguns in the center console.
Upon seeing the guns, Officer Lundy drew his gun and ordered Spencer, who
had since walked to the back of the car, to “turn around” and “put his hands
behind his back” so that he could be handcuffed for officer safety while Officer
Lundy investigated. Id. at 72. The woman also exited the car and began
filming Officer Lundy with her cell phone. Spencer responded to Officer
Lundy’s commands by saying “Fu** you,” “I don’t have to do that,” and
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“why, so you can shoot me in the back.” Id. at 75. Spencer also told Officer
Lundy several times that he had a “gun permit” and to “check [his] fu**ing gun
permit.” Id. Officer Lundy’s immediate concern was not whether Spencer had
a valid gun license, because “[a] gun [license] is not a permission slip to fire off
rounds in the city.” Id.; see also id. at 76 (Officer Lundy explaining that if
Spencer would have cooperated, he would have confirmed that Spencer had a
valid gun license and then “we wouldn’t be here today”).
[3] At this point, another officer, Sergeant Franklin Wooten, arrived on the scene.
Officer Lundy felt “safer” once Sergeant Wooten arrived, so he holstered his
gun and took out his taser. Id. at 80. Officer Lundy told Sergeant Wooten that
there were two guns in the car and that Spencer was disobeying his commands
to turn around and put his hands behind his back. Sergeant Wooten grabbed
Spencer’s left wrist and Officer Lundy grabbed his right wrist; however, Spencer
“stiffened up” to avoid being handcuffed. Id. at 82. Spencer then “pulled
away” “with enough force” that Officer Lundy lost his grip. Id. at 105.
Spencer “spun around” and refused to put his hands behind his back despite the
officers’ numerous commands to do so. Id. at 54. At this point, Sergeant
Wooten advised Officer Lundy to tase Spencer. Officer Lundy, who had
already planned on doing so, tased Spencer once. Spencer “immediately gave
up,” at which point the officers were able to place him in handcuffs. Id. at 55.
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[4] The State charged Spencer with Class A misdemeanor resisting law
enforcement.1 See Appellant’s App. Vol. II p. 16 (charging information alleging
that Spencer knowingly forcibly resisted, obstructed, or interfered with Officer
Lundy and Sergeant Wooten while they were lawfully engaged in the execution
of their duties). At the jury trial, defense counsel tendered a jury instruction
based on certain language from an opinion that this Court had issued the day
before, Brooks v. State, 113 N.E.3d 782 (Ind. Ct. App. 2018):
Defendant’s Proposed Jury Instruction on “Force”
In order to find the Defendant guilty of resisting law
enforcement, you must find that the State of Indiana has proven
beyond a reasonable doubt that the Defendant forcibly resisted,
obstructed, or interfered with a law enforcement officer who was
lawfully engaged in his duties as a law enforcement officer.
Any action to resist, obstruct, or interfere must be done with
force.
Force is defined as using strong, powerful, violent means to
evade a law enforcement official’s rightful exercise of his duties.
Force requires some form of violent action toward another.
1
The State also charged Spencer with Class B misdemeanor possession of marijuana, but the jury acquitted
him on this charge.
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It is error as a matter of law to conclude that force includes all
actions that are not passive.
The following examples are insufficient to constitute force:
Turning and pulling away from a law enforcement officer;
Leaning away from an officer’s grasp;
Refusing to present arms for handcuffing;
Twisting and turning a little bit against an officer’s actions;
or
Walking away from a law enforcement encounter.
However, the force involved need not raise to the level of
mayhem.
Source: Brooks v. State of Indiana, l8A-CR-759 (Ind. Ct. App.
October 31, 2018) (internal citations omitted).
Appellant’s App. Vol. II p. 131. The State objected on grounds that the jury
instruction (1) was not the pattern instruction and (2) cited “examples.” Tr. p.
12. The trial court declined to give the instruction because it contained
examples. Id. at 14, 16.2 The trial court, however, gave the pattern jury
2
It may be that the trial court would have given an instruction that defined “force” but did not include
specific examples like those Spencer wanted to have included. The trial court said that it was “not
giving examples” but “if force is defined, we will define it.” Tr. p. 14. However, Spencer did not ask
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instruction on resisting law enforcement by force. Appellant’s App. Vol. II p.
141; 1 Ind. Pattern Jury Instructions—Criminal 5.3000 (4th ed. 2019). The jury
found Spencer guilty, and the trial court sentenced him to 365 days with 18
days executed (time served) and the remainder suspended.
[5] Spencer now appeals.
Discussion and Decision
[6] Spencer makes one argument on appeal: the trial court erred in refusing to give
his tendered jury instruction on “force.” “The trial court has broad discretion
as to how to instruct the jury, and we generally review that discretion only for
abuse.” McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015) (quotation omitted).
To determine whether a jury instruction was properly refused, we consider: (1)
whether the tendered instruction correctly states the law; (2) whether there was
evidence presented at trial to support giving the instruction; and (3) whether the
substance of the instruction was covered by other instructions that were given.
Id. at 763-64. In doing so, we consider the instructions as a whole and in
reference to each other and do not reverse the trial court for an abuse of
discretion unless the instructions as a whole mislead the jury as to the law in the
case. Id.
for such an instruction. His focus was on the examples. Indeed, during closing arguments, defense
counsel referred to the same examples that were included in the proposed instruction. See id. at 156-58.
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[7] Spencer argues that his proposed jury instruction correctly states the law
because it “mirrors language” from this Court’s opinion in Brooks (and other
cases). In Brooks, we addressed whether the evidence was sufficient to support
the defendant’s conviction for resisting law enforcement by force. In
concluding that the evidence was insufficient, we cited appellate cases where
this Court and our Supreme Court found that the “force” element was not
satisfied. The State argues that Spencer’s proposed instruction is “confusing”
because of these examples. Appellee’s Br. p. 12. We agree with the State.
[8] While this appeal was pending, the Indiana Supreme Court addressed a similar
issue in Batchelor v. State, 119 N.E.3d 550 (Ind. 2019). In that case, the
defendant was charged with resisting law enforcement by fleeing, and the trial
court gave two jury instructions: the pattern instruction on resisting law
enforcement by fleeing and a “supplemental” instruction tendered by the State,
which attempted to explain the term “fleeing” and was taken from an opinion
from this Court. Id. at 561. Our Supreme Court found that the supplemental
instruction was misleading because it emphasized a factual scenario, thereby
minimizing other potentially relevant evidence. Id. at 560. As the Court
explained:
[W]e have long held that certain language or expression used by
an appellate court to reach its final conclusion is not [necessarily]
proper language for instructions to a jury. This is especially true
when, as here, the instruction is rooted in reasoning found in a
sufficiency-of-the-evidence case, not an appellate opinion
approving a jury instruction.
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Id. at 563 (quotations and citations omitted). Accordingly, the Court
disapproved of the supplemental instruction and held that “[g]oing forward,
trial courts should use” the pattern jury instruction on resisting law enforcement
by fleeing. Id. at 563. The Court noted that while counsel may argue during
closing argument whether the defendant “fled,” “it’s ultimately for the jury to
decide whether there’s evidence of . . . fleeing under the statute.” Id.
[9] Spencer’s proposed jury instruction sets forth five examples from appellate
decisions where this Court and our Supreme Court found that the “force”
element was not satisfied. Like the instruction in Batchelor, it is misleading
because it emphasizes particular factual scenarios, thereby minimizing other
potentially relevant evidence. Whether a defendant forcibly resists is a factually
sensitive determination. Accordingly, the trial court did not abuse its discretion
in declining to give Spencer’s proposed jury instruction on force.
[10] Affirmed.
Kirsch, J., and Altice, J., concur.
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