JONES v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] George Jones, Jr., appeals his conviction of resisting law enforcement, as a Level 6 felony.¹ The only issue he raises on appeal is whether there is sufficient evidence to support his conviction. We affirm.

Facts and Procedural History

[2] On November 10, 2023, Jerald Carter was working as a cashier at Dollar General. While he was working, Jones entered the store. Carter watched as Jones browsed the aisles and picked up a tube of toothpaste. Jones walked to the back of the store, concealed the toothpaste in his hoodie, and returned to the front of the store. As he walked past the cash register, Carter asked Jones what he had done with the merchandise he had been holding in his hands. Jones told Carter that he did not have anything to purchase and walked out of the store.

[3] Later that day, a Coca Cola vender pulled up in his truck to deliver soda. As he was bringing the delivery inside, Carter saw Jones walk into the parking lot and “jump on the truck.” Tr. at 118. After a short while, Jones “jumped back off the truck” with a six pack of Coke in his hands and walked away. Id. At that point, Carter called 9-1-1 and reported a theft.

[4] Officer Kyle Campbell of the Evansville Police Department was dispatched to the store. When he arrived, Officer Campbell spoke with Carter, who directed him across the street to where Jones was standing. Officer Campbell approached Jones who “backed away quickly” as if “he was about to take off running.” Id. at 143. Officer Campbell told Jones that he was not free to leave. At that point, Jones gave Officer Campbell a “crazy look” that made Officer Campbell believe that Jones “may be on something that didn't put him in the right state of mind.” Id.

[5] In response, Officer Campbell pulled out his taser, told Jones to “relax,” and ordered him to get down on the ground. Id. at 141; St. Ex. 1. He repeated that command seven times, but Jones refused to lower himself to the ground. Officer Campbell also told Jones to keep his hands where he could see them. Officer Campbell could see that Jones had something in his hoodie pocket but was unsure whether it was merchandise from the store or a weapon. As Officer Campbell was repeating his commands for Jones to get down on the ground, Jones reached into his hoodie pocket. At that point, Officer Campbell deployed his taser.

[6] Once Jones was on the ground, Officer Campbell ordered Jones to place his hands behind his back. He repeated that command several times, but Jones refused. Instead, Jones lifted his upper body into a “pushup position” and “ripped” his arms away from Officer Campbell. Id. at 144. Jones lifted his arms above his head to keep them out of Officer Campbell's reach and tried to “buck” him away from his body. Id. Officer Campbell continued to struggle with Jones until backup arrived. At that point, the officers were able to place Jones in handcuffs and take him into custody. Afterwards, Officer Campbell realized that he had scraped his knuckles and fingers across the pavement while taking Jones into custody, which resulted in minor scratches and bleeding.

[7] The State charged Jones with Counts I-II, resisting law enforcement as Level 6 felonies, and Count III, theft as a Class A misdemeanor.² Count I was enhanced from a Class A misdemeanor to a Level 6 felony as follows:

on or about November 10, 2023, George D. Jones Jr. did knowingly or intentionally forcibly resist, obstruct, or interfere with Evansville Police Department Officers while said officers were lawfully engaged in their duties as law enforcement officers and the said act did create a substantial risk of bodily injury to George D. Jones Jr. or Evansville Police Department Officers.

App. v. II at 14. The enhancement for Count I also provided that Jones had two prior unrelated convictions for resisting law enforcement.

[8] Jones's jury trial took place on January 26, 2024, and the jury found Jones guilty as charged of Count I and not guilty of Counts II and III. Jones subsequently admitted that he had two prior convictions for resisting law enforcement, and the Count I conviction was entered as a Level 6 felony. A sentencing hearing was held on February 2, 2024, and the trial court sentenced Jones to serve two years in the Department of Correction. This appeal ensued.

Discussion and Decision

[9] Jones contends that the evidence is insufficient to support his resisting law enforcement conviction.³ Our standard of review in a sufficiency of the evidence claim is clear:

[W]e examine only the probative evidence and reasonable inferences that support the [judgment]. We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.

Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (citations and quotation marks omitted).

[10] Under Indiana Code Section 35-44.1-3-1(a)(1), “[t]he basic offense of resisting law enforcement has five essential elements: that [the defendant] (1) knowingly or intentionally (2) forcibly (3) resisted, obstructed, or interfered with (4) a law enforcement officer, (5) while the officer was lawfully engaged in the execution of the officer's duties.” K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013). The offense is a Level 6 felony if, while committing the offense, the person “creates a substantial risk of bodily injury to the person or another person”⁴ and the person has two or more prior unrelated convictions for resisting law enforcement. I.C. § 35-44.1-3-1(d)(1). The term “bodily injury” means “any impairment of physical condition, including physical pain.” I.C. § 35-31.5-2-29. A “substantial” risk is one that has “substance or actual existence.” Smith v. State, 688 N.E.2d 1289, 1291 (Ind. Ct. App. 1997) (internal quotations and citation omitted).

[11] Jones does not challenge the sufficiency of the evidence to prove that he knowingly or intentionally forcibly resisted Officer Campbell while the latter was lawfully engaged in the execution of his duties. Rather Jones asserts that there was insufficient evidence that his acts of forcible resistance created a substantial risk of bodily injury to himself and/or the officers. Jones's refusal to obey commands that he get down on the ground required that Officer Campbell use force to place him on the ground. Jones then refused to obey commands to place his hands behind his back and instead lifted his body up into a “pushup position” and “ripped” his arms away from the officer. Tr. at 144. Jones then lifted his arms above his head to keep them out of Officer Campbell's reach and tried to “buck” the officer away from his body. Id. Jones then continued to struggle against Officer Campbell until backup arrived. All of those actions by Jones created a situation in which Officer Campbell was forced to struggle with Jones to take him into custody, thus creating a substantial risk that Jones or the officer would be injured. And the evidence showed that Officer Campell was, in fact, injured due to Jones's acts of resisting the officer's lawful acts.

[12] There was sufficient evidence to support Jones’ conviction of resisting law enforcement as a Level 6 felony. See, e.g., Thrash v. State, 88 N.E.3d 198, 207-08 (Ind. Ct. App. 2017) (holding that the evidence was sufficient to sustain the defendant's conviction for resisting law enforcement resulting in bodily injury where the officer experienced backpain after struggling to take the defendant into custody). Jones's contentions to the contrary are merely requests that we reweigh the evidence, which we may not do. See, e.g., Lock, 971 N.E.2d at 74.

[13] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-44.1-3-1(a)(1), (d)(1).

2.   I.C. § 35-43-4-2(a).

3.   Jones does not contest the fact that he had two prior unrelated convictions for resisting law enforcement.

4.   Thus, a substantial risk of serious bodily injury is an element of resisting law enforcement as a Level 6 felony, and Jones's assertion that it was an “additional element not required by the statute” is without merit. Appellant's Br. at 10.

Bailey, Judge.

Bradford, J., and Foley, J., concur.