HARDIN v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Moses Hardin appeals his conviction for Class A misdemeanor resisting law enforcement,¹ arguing the State failed to present sufficient evidence of forceable resistance. He also alleges the trial court miscalculated the executed time it imposed for his probation violation. We affirm Hardin's conviction, but remand for clarification of the sanction imposed for his probation violation and, if necessary, correction to the abstract of judgment.

Facts and Procedural History

[2] On Friday, December 8, 2023, Hardin called the Evansville mayor's office because his car had been towed, and he wanted the mayor's help retrieving it from the impound. The mayor's executive assistant told him the mayor's office lacked authority to do so, but she would forward his request to the Evansville Police Department (“EPD”). Over the weekend and on Monday, Hardin left the assistant several voicemail messages because no one from EPD had returned his calls. The messages were “getting clearly more agitated” as time went on, and Hardin used “very forceful” language. Tr. Vol. 2 at 20, 21.

[3] On Tuesday, December 12, Hardin called the office again, “clearly angry,” and left a voicemail ending, “I'm just going to take matters into my own hands.” Id. at 21. The assistant was concerned Hardin would “retaliate in some way,” so she contacted the assistant police chief. Id. Within minutes of the call, Hardin arrived in the vestibule in front of the assistant's desk wearing Army fatigues and a face covering with only his eyes visible. Lieutenant Chad Ferguson of the Vanderburgh County Sheriff's Office entered the lobby area. At that point, Hardin's “entire body language shifted.” Id. at 22. He was “extremely agitated.” Id. The officer saw Hardin “stomping his feet and pounding his fists” in the air. Id. at 44. When the assistant explained the mayor could not get Hardin's car back, he told her she “would know what reincarnation looks like.” Id. at 23. Although she was behind a clear partition, the assistant felt threatened and told the officer so.

[4] Lieutenant Ferguson told Hardin, “I'm going to place you under arrest” for intimidation, approached Hardin with handcuffs displayed, and ordered Hardin to turn around and put his hands behind his back. Id. at 46. Hardin did not comply, so the officer reached toward Hardin intending to handcuff him. Hardin “smacked at” Lieutenant Ferguson, knocking a button off the officer's shirt, and then “basically the fight was on.” Id. at 47. Hardin pulled back into a corner, disobeyed commands, got into a “tussling match,” and “kind of shoved back” when the officer tried to bring Hardin to the ground. Id. A second sheriff's deputy arrived to assist, “there was still a little bit of a scuffle,” and the two officers brought Hardin to the ground. Id. Hardin held his hands underneath his body and “had them locked up tight.” Id. at 48. He then “tensed up” making it difficult to handcuff him. Id. After the officers subdued him, Hardin would not stand up, so the deputies “had to basically drag him out” of the room, while Hardin yelled, “I'm going to show you reincarnation.” Id. at 50.

[5] The State charged Hardin with four counts of intimidation and one count of resisting law enforcement. At the time of these events, Hardin was on probation under cause number 82D03-2110-F5-5641 (“Cause 5641”), so the State also petitioned to revoke his probation.²

[6] The case proceeded to a jury trial. The jury found Hardin not guilty of the intimidation charges and guilty of resisting law enforcement. For that offense, the trial court sentenced Hardin to time served.

[7] The trial court also revoked Hardin's probation in Cause 5641 and “order[ed] an additional 365 days served there, so that would make it a total sentence of 852 days with credit for time served[.]” Tr. Vol. 2 at 109. In calculating credit time and the remaining executed sentence, the trial court stated, “[H]e's served a total of 387 days, with 365 added to that, it would be 852 days.” Id. In the amended abstract of judgment in Cause 5641, Hardin's sentence was adjusted to 852 days in the Department of Correction.

The State presented sufficient evidence to prove Hardin forcibly resisted arrest.

[8] Hardin first challenges the sufficiency of the evidence to support his conviction for resisting law enforcement. A sufficiency-of-the-evidence claim warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

[9] To convict Hardin of resisting law enforcement as charged, the State was required to prove Hardin knowingly or intentionally forcibly resisted law enforcement officers while the officers were lawfully engaged in the execution of their duties. I.C. § 35-44.1-3-1(a)(1). Hardin argues the State failed to present sufficient evidence he forcibly resisted. In support, he points to cases in which actions such as (1) turning and pulling away from an officer, (2) walking away from an officer, (3) tensing one's body and refusing to give an officer one's hands, (4) leaning away as an officer attempted to grasp one's body, and (5) twisting and turning one's body to avoid an officer's actions, did not constitute forcible resistance. See Appellant's Br. at 9–10.

[10] The word “forcibly” is an essential element of the crime of resisting law enforcement and means something more than mere action. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013) (quotation omitted). A person “forcibly resists” law enforcement when he or she uses “strong, powerful, violent means” to evade an officer's rightful exercise of his or her duties. Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). “It is error as a matter of law to conclude that ‘forcibly resists’ includes all actions that are not passive.” Id. at 724. Still, the force involved “need not rise to the level of mayhem.” Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009). For example, a defendant's acts of pushing away with his shoulders while cursing and yelling during a search and “stiffen[ing] up” to prevent being put in a vehicle constitute forcible resistance. Id. at 965–66. In this way, the “element may be satisfied with even a modest exertion of strength, power, or violence.” Walker, 998 N.E.2d at 727. Actual physical contact between the defendant and the officer has never been required, and a conviction can be sustained where there is only an “active threat of such strength, power, or violence when that threat impedes the officer's ability to lawfully execute his or her duties.” Id.

[11] Here, Hardin “smacked at” Lieutenant Ferguson, touching the officer's uniform; got into a “tussling match” and “kind of shoved back” when the officer tried to bring Hardin to the ground; and tensed up when two officers tried to handcuff him. Tr. Vol. 2 at 47, 48. When Hardin would not stand up, the officers had to carry him out of the lobby. This was sufficient evidence of forcible resistance to sustain his conviction. Hardin's arguments to the contrary are requests to reweigh the evidence, which we cannot do.

The trial court's sentencing statement and abstract of judgment appear to contain a mathematical error.

[12] After the jury found Hardin guilty of resisting law enforcement, the trial court found Hardin violated his probation in Cause 5641 and “order[ed] an additional 365 days served there.” Id. at 109. In calculating credit for time served, the trial court stated, “so he's served a total of 387 days, with 365 days added to that, it would 852 days.” Id. But 387 plus 365 equals 752. The amended abstract of judgment in Cause 5641 also states Hardin's adjusted sentence is 852 days. We have reviewed the original and amended abstracts of judgment in Cause 5641 as well as Hardin's credit time and the sentencing transcript in this case, but it is unclear how the trial court arrived at the calculation of 852 days remaining on Hardin's sentence. We therefore remand for clarification of the probation violation sanction and, if necessary, correction to the abstract of judgment.

Conclusion

[13] The State presented sufficient evidence to support Hardin's conviction for resisting law enforcement. But the trial court's sentencing statement and the abstract of judgment in Cause 5641 appear to contain a mathematical error, so we remand for clarification and, if needed, correction to the abstract of judgment.

[14] Affirmed and remanded.

FOOTNOTES

1.   Ind. Code § 35-44.1-3-1 (2021).

2.   In Cause 5641, the trial court had sentenced Hardin to three years, with credit for time served and the remaining two years and 174 days suspended to probation. Appellant's App. Vol. 2 at 68.

Kenworthy, Judge.

Mathias, J., and Brown, J., concur.