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Date: 11-25-2020

Case Style:

TORENCE L JACKSON, Jr. v. State of Indiana

Case Number: 20A-CR-00385

Judge: Randall T. Shepard

Court: COURT OF APPEALS OF INDIANA

Plaintiff's Attorney: Curtis T. Hill, Jr.
Attorney General of Indiana

Benjamin Shoptaw
Deputy Attorney General

Alexandria Sons
Certified Legal Intern

Anthony J. Smith
Certified Legal Intern

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Description:

Indianapolis, IN - Criminal defense lawyer represented defendant charged with resisting arrest.



On October 27, 2019, Indianapolis Metropolitan Police Department Officer
Shawn Romeril was dispatched to a gas station to investigate a report that two
men were harassing customers. Officer Romeril knew the gas station was in “a
high crime area” and that violent crimes had happened there. Tr. Vol. II, p. 10.
[4] When Officer Romeril arrived, he saw two men, later identified as Jackson and
a companion. As the officer drove up in a marked patrol car, the two men saw
him and put their hands in their pockets. Officer Romeril, who was in full
uniform, got out of his car and told the men to take their hands out of their
pockets and sit down. Jackson’s companion complied, but Jackson kept his
hands in his pockets.
Court of Appeals of Indiana | Opinion 20A-CR-385 | November 19, 2020 Page 3 of 6
[5] Officer Romeril approached Jackson, repeatedly telling him to take his hands
out of his pockets, but Jackson refused to comply. The officer removed
Jackson’s hands from his pockets and handcuffed him. At that point, Jackson’s
companion stood up and ran away. Officer Romeril chased him.
[6] Jackson left the gas station while Officer Romeril was gone. Other officers
arrived and searched the area. One of them located Jackson and brought him
to Officer Romeril, who arrested him.
[7] The State charged Jackson with forcibly resisting law enforcement, a Class A
misdemeanor,1
and public intoxication, a Class B misdemeanor. The trial court
held a bench trial. During trial, Jackson moved to dismiss the charges. The
court dismissed the charge of public intoxication but not the charge of resisting.
The court determined Jackson was guilty of resisting and imposed a sentence.
This appeal followed.
Discussion and Decision
I. Sufficiency of the Evidence
[8] We do not assess the credibility of witnesses or reweigh the evidence in
determining whether the evidence is sufficient. Brooks v. State, 113 N.E.3d 782
(Ind. Ct. App. 2018). We consider only the probative evidence and reasonable
inferences supporting the verdict. Id. We will affirm the conviction if there is
1
Ind. Code § 35-44.1-3-1(a)(1) (2019).
Court of Appeals of Indiana | Opinion 20A-CR-385 | November 19, 2020 Page 4 of 6
substantial evidence of probative value from which a reasonable factfinder
could have concluded beyond a reasonable doubt that the defendant was guilty
of the crime charged. Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App. 2005).
[9] To obtain a conviction of resisting law enforcement, as charged, the State was
required to prove beyond a reasonable doubt that (1) Jackson (2) knowingly or
intentionally (3) forcibly (4) resisted, obstructed, or interfered (5) with a law
enforcement officer (6) while the officer was lawfully engaged in the execution
of the officer’s duties. Ind. Code § 35-44.1-3-1(a)(1). The parties’ dispute
focuses on whether Jackson forcibly resisted Officer Romeril’s efforts to remove
Jackson’s hands from his pockets and handcuff him.
[10] In Graham v. State, 903 N.E.2d 963 (Ind. 2009), officers arrived at Graham’s
house after he reportedly shot at another person. Graham came outside, but he
refused to comply with officers’ demands to raise his hands and turned to
reenter his home. Next, they fired “bean bag” rounds at Graham’s legs,
knocking him down. Id. at 965. The officers carried him off of his porch, put
him on the ground, and handcuffed him. Graham was convicted of Class A
resisting law enforcement, among other offenses. The Indiana Supreme Court
reversed, noting there was no evidence that he physically resisted the officers’
efforts once they picked him up.
[11] In Berberena v. State, 914 N.E.2d 780 (Ind. Ct. App. 2009), trans. denied, an
officer ordered Berberena to put his hands behind his back, but he did not
comply. Next, the officer pushed Berberena against a wall, grabbed his hands,
Court of Appeals of Indiana | Opinion 20A-CR-385 | November 19, 2020 Page 5 of 6
and placed them in handcuffs. A panel of this Court reversed Beberena’s
conviction of Class A misdemeanor resisting law enforcement, concluding there
was no evidence that Berberena forcibly resisted the officer, such as by
stiffening his arms or taking other physical action against the officer. See also
Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009) (reversing a conviction for
resisting; Colvin refused to take hands out of pockets, and officers placed him
on ground and handcuffed him, but Colvin did not physically resist), trans.
denied; cf. Johnson v. State, 833 N.E.2d at 518-19 (affirming a conviction for
resisting; Johnson pushed away from officers as they attempted to search him
and “stiffened up” when officers attempted to place him in transport vehicle).
[12] Other jurisdictions have addressed the use of force by defendants who fail to
obey police instructions. Compare State v. Caldwell, 352 S.W.3d 378 (Mo. Ct.
App. 2011) (reversing conviction for resisting arrest; Caldwell did not physically
resist officer but instead merely refused to open her car door), with State v.
Belton, 108 S.W.3d 171 (Mo. Ct. App. 2003) (affirming conviction for resisting
arrest; Belton struggled against officer attempting to pull him out of his car); see
also Rich v. State, 44 A.3d 1063, 1082-83 (Md. Ct. Spec. App. 2012) (reversing
conviction for resisting arrest; fleeing from officer does not establish “resistance
by force,” and Rich did not struggle against being handcuffed once caught);
State v. Prince, 972 P.2d 859 (N.M. Ct. App. 1998) (reversing conviction for
obstructing police officer; Prince did not physically or verbally resist officer’s
commands).
Court of Appeals of Indiana | Opinion 20A-CR-385 | November 19, 2020 Page 6 of 6
[13] The facts of Jackson’s case more closely resemble the circumstances of Graham,
Berberena and Colvin than the circumstances of Johnson. Jackson did not comply
with Officer Romeril’s instructions to take his hands out of his pockets and sit
down. We do not endorse his refusal to cooperate. Still, there is no evidence
that Jackson physically resisted, such as by pulling away or stiffening his arms,
when Officer Romeril grabbed his hands and handcuffed him. In the absence
of physical efforts by Jackson to oppose Officer Romeril, there is insufficient
evidence to support the “forcibly” element of the offense of resisting law
enforcement. We reverse Jackson’s conviction.
II. Public Defender Fee
[14] Jackson argues the trial court abused its discretion by ordering him to pay a
public defender fee without asking about his ability to pay. To its credit, the
State concedes the trial court was obligated to consider whether Jackson could
pay the fee and did not. We reverse the trial court’s imposition of the fee.

Outcome: For the reasons stated above, we reverse the judgment of the trial court.

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