Caleb L. Tungate, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Caleb L. Tungate appeals his conviction for resisting law enforcement as a class A misdemeanor. He claims the evidence is insufficient to sustain his conviction and the trial court abused its discretion in instructing the jury. We affirm.

Facts and Procedural History

[2] At 1:12 a.m. on November 17, 2024, Bluffton Police Officer Evan Holliday was patrolling and observed an individual walking in “the middle of the road down the dotted lines of the two lanes.” Transcript Volume II at 102. Officer Holliday slowed down, and the individual “seemed to notice” he was behind him and “began moving over towards the sidewalk.” Id. Officer Holliday rolled down his window and asked the individual what he was doing. The individual “seemed to be rambling on” and “speaking, but [Officer Holliday] couldn't make out what the response was.” Id. at 103. The individual looked at Officer Holliday who recognized him as Tungate.

[3] Officer Holliday had information that Tungate had an arrest warrant, contacted dispatch to confirm whether he had an active arrest warrant, and received confirmation. Officer Holliday turned on the emergency lights of his marked police vehicle, exited the vehicle, and told Tungate to stop walking. Tungate continued “to just ramble on ․ speaking” and “seemed kind of upset that [Officer Holliday] was stopping to try to talk to him.” Id. at 104. Officer Holliday told Tungate to “come back” to him and called out his name, and Tungate turned around, started walking toward him, and asked him, “how do you know my name.” Id. at 105.

[4] Officer Holliday told Tungate that he had a “warrant out for his arrest,” and Tungate told him that “he did not.” Id. Officer Holliday told Tungate several times that he needed to place his hands behind his back because he was under arrest for the warrant, and Tungate “was not compliant with putting his hands behind his back.” Id. at 106. At some point, Officer Holliday contacted Bluffton Police Officer Trae Jojola via his radio and requested that he respond to the location.

[5] Officer Jojola responded to the scene, and Officer Holliday again told Tungate that he needed to place his hands behind his back and that he was under arrest. Tungate did not comply, and Officer Holliday approached him and “grabbed his left arm to begin trying to put him in handcuffs.” Id. at 107. Officer Jojola grabbed Tungate's right arm. When Officer Holliday grabbed Tungate's left arm, he “could feel that [Tungate] tensed up and began trying to pull his arms away from behind his back where [he] was trying to pull them to[ ].” Id. Tungate also “took a step forward away from Officer Jojola.” Id. Officer Holliday told Tungate “not to pull away from us.” Id. Officer Jojola told Tungate to stop resisting.

[6] After fifteen or twenty seconds of the officers attempting to pull Tungate's arms into position to place him in handcuffs, Tungate took another step, and the officers “took him down onto the ground to have better control over him to be able to safely put him in handcuffs.” Id. at 108. Officer Jojola grabbed Tungate's legs, and Officer Holliday reached over to grab Tungate's right arm to pull it behind his back and placed him in handcuffs. During the encounter, Tungate was “very agitated” and yelling. Id. at 124.

[7] In an amended information, the State charged Tungate with resisting law enforcement as a class A misdemeanor. At the jury trial, the State presented the testimony of Officers Holliday and Jojola. The State also introduced and the court admitted the video recordings from Officer Holliday's body camera and Officer Jojola's body camera and vehicle camera.

[8] At the conclusion of the trial, Tungate's counsel proposed two jury instructions. Proposed Instruction No. 1 stated: “The force required for forcibly resisting arrest must be strong, powerful and violent means to evade a law enforcement official's rightful exercise of his or her duties. Forcible resistance does not include all actions that are not passive.” Appellant's Appendix Volume II at 70. The instruction cited Spangler v. State, 607 N.E.2d 720 (Ind. 1993), and Graham v. State, 903 N.E.2d 963 (Ind. 2009). Proposed Instruction No. 2 stated: “The element of forcibly resisting, obstructing or interfering requires proof of strong, powerful, violent means to evade a law enforcement official's rightful exercise of his or her duties but the level of force need not rise to the level of mayhem.” Appellant's Appendix Volume II at 71. This instruction cited Spangler, Graham, A.C. v. State, 929 N.E.2d 907 (Ind. Ct. App. 2010), Ajabu v. State, 704 N.E.2d 494 (Ind. Ct. App. 1998), and K.W. v. State, 984 N.E.2d 610 (Ind. 2013).

[9] The prosecutor argued that, “while [the proposed instructions] are an accurate statement of the law they are an incomplete statement of the law ․” Transcript Volume II at 137. The court stated:

The Court has pulled up ․ some of the cases that were cited and ․ the Court is going to reject both instructions citing Johnson v. State, 833 N.E.2d 516 and 517. Again, much more on point to this case. In that case Johnson stiffened up, the police had to get physical in order to put him ․ or to ․ gain control or custody over him. [T]he Court of Appeals held that those actions constituted forcible resistance. [A]nd while I agree that . . [defense counsel's] instruction does ․ have ․ set forth in Graham case it ․ I think would mislead what the jurors could find as forcibly resist because that same case also says exactly what the police officers are saying in this situation happened which they ․ contrasted against what was happening in Graham's case. So, the Court respectfully rejects ․ Defendant's Exhibit or tendered instruction one and two.

Id. at 138-139 (italics added).

[10] Final Instruction No. 4 stated:

The crime of Resisting Law Enforcement is defined by law as follows:

A person who knowingly or intentionally forcibly resists, obstructs, or interferes with a law enforcement officer while the officer is lawfully engaged in the execution of his duties as an officer, commits Resisting Law Enforcement, a Class A Misdemeanor.

Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:

1. The Defendant

2. Knowingly or intentionally

3. Forcibly

4. Resisted, obstructed, or interfered with Officer Evan Holliday, a law enforcement officer while the officer was lawfully engaged in the execution of his duties as an officer.

If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of Resisting Law Enforcement, a Class A Misdemeanor, as charged in Count I.

Appellant's Appendix Volume II at 96.

[11] The jury found Tungate guilty as charged. The court sentenced Tungate to 346 days and stated that Tungate “shall be given 173 days of credit toward the sentence of imprisonment for time spent in confinement ․ plus an additional 173 days credit for good time for a total of 346 days.” Id. at 115.

Discussion

I.

[12] Tungate asserts that he did not “forcibly resist, obstruct, or interfere” with Officer Holliday's duties as a law enforcement officer and he “never used ‘strong, powerful, violent’ means to evade” him. Appellant's Brief at 14. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh'g denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. We will affirm the conviction if there exists evidence of probative value from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.

[13] At the time of the offense, Ind. Code § 35-44.1-3-1 provided that “[a] person who knowingly or intentionally ․ forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer's duties ․ commits resisting law enforcement, a Class A misdemeanor ․”¹ With respect to the term “forcibly” in Ind. Code § 35-44.1-3-1, the Indiana Supreme Court in Spangler v. State held that the word “forcibly” meant “something more than mere action.” 607 N.E.2d 720, 724 (Ind. 1993). It held that “one ‘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. “[A]ny action to resist must be done with force in order to violate this statute. It is error as a matter of law to conclude that ‘forcibly resists’ includes all actions that are not passive.” Id. at 724.

[14] “But even so, the statute does not demand complete passivity.” Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013) (citation omitted). In Graham v. State, the Court clarified that “[t]he force involved need not rise to the level of mayhem.” 903 N.E.2d 963, 965 (Ind. 2009). “In fact, even a very ‘modest level of resistance’ might support the offense.” Walker, 998 N.E.2d at 727 (quoting Graham, 903 N.E.2d at 966 (“even ‘stiffening’ of one's arms when an officer grabs hold to position them for cuffing would suffice”)). The Indiana Supreme Court held:

So in summary, not every passive—or even active—response to a police officer constitutes the offense of resisting law enforcement, even when that response compels the officer to use force. Instead, a person “forcibly” resists, obstructs, or interferes with a police officer when he or she uses strong, powerful, violent means to impede an officer in the lawful execution of his or her duties. But this should not be understood as requiring an overwhelming or extreme level of force. The element may be satisfied with even a modest exertion of strength, power, or violence. Moreover, the statute does not require commission of a battery on the officer or actual physical contact—whether initiated by the officer or the defendant. It also contemplates punishment for the active threat of such strength, power, or violence when that threat impedes the officer's ability to lawfully execute his or her duties.

Id.

[15] The record reveals Officer Holliday indicated that Tungate “tensed up and began trying to pull his arms away ․” Transcript Volume II at 107. During cross-examination, Tungate's counsel asked, “Other than ․ tensing up and not giving you his arm, did he ․ pull away from you?” Id. at 116. Officer Holliday answered, “Yes. He took several steps away from us.” Id. Officer Jojola testified that he and Officer Holliday grabbed Tungate's arms and attempted to place him in handcuffs when Tungate “began to ․ tense up ․ not listening or complying,” he “wouldn't give [them] his hands to put his arms out and he began to like step away or step forward like he was trying to get away.” Id. at 123. Based upon the record, we conclude that the State presented evidence of probative value from which a reasonable trier of fact could find Tungate guilty beyond a reasonable doubt of resisting law enforcement as a class A misdemeanor. See Lopez v. State, 926 N.E.2d 1090, 1093-1094 (Ind. Ct. App. 2010) (holding the evidence was sufficient to show the defendant acted with the requisite force where the defendant refused to stand and “started to pull away” when officers tried to physically pull him up from the couch and where officers were unable to pull his arms out from under him), trans. denied; Johnson v. State, 833 N.E.2d 516, 518-519 (Ind. Ct. App. 2005) (holding the defendant forcibly resisted officers by turning away and pushing away with his shoulders as they attempted to search him, refusing to enter the transport vehicle, and stiffening up).

II.

[16] Tungate argues that the trial court abused its discretion in refusing to give his proposed jury instructions. He asserts that the State agreed that the instructions were an accurate statement of the law, the evidence called for the jury to apply the definition of “forcibly” as enumerated in Final Instruction No. 4, and the definition of “forcibly” was not covered by any other jury instructions. Appellant's Brief at 18.

[17] We review a trial court's manner of instructing the jury for an abuse of discretion. Owen v. State, 210 N.E.3d 256, 267 (Ind. 2023), reh'g denied. To determine if a trial court abused its discretion, we consider (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions that are given. Id. Jury instructions are to be considered as a whole. Id. at 268. A trial court acts within its discretion if it denies a request that would likely confuse the jury. Id.

[18] “Although trial courts may use language from appellate opinions to instruct a jury, the mere fact that certain language or expression is used in the opinions of this Court to reach its final conclusion does not make it proper language for instructions to a jury.” Id. at 268-269 (quotation marks and citations omitted). “Extracting specific language from a judicial opinion out of context can confuse the jury.” Id. at 269. “Jury instructions are meant to be neutral statements of the law.” Id.

[19] Here, although Proposed Instruction No. 1 correctly recited some of the language of Spangler, the instruction was an incomplete statement of the current state of the law and thus was properly refused by the trial court. While Proposed Instruction No. 1 cited Graham, it did not include the language from Graham. Due to the Court's more recent clarification and explanation of the Spangler language regarding what constitutes forcible resistance, Proposed Instruction No. 1 was an incomplete statement of current law. Proposed Instruction No. 2 acknowledged that the “level of force need not rise to the level of mayhem,” Appellant's Appendix Volume II at 71, which is language from Graham, but the instruction does not mention the language from Graham that “even ‘stiffening’ of one's arms when an officer grabs hold to position them for cuffing would suffice.” Graham, 903 N.E.2d at 966. We conclude that the instructions were an incomplete statement of current law. Thus, we cannot say that the trial court abused its discretion in refusing to give the tendered instructions.

[20] For the foregoing reasons, we affirm Tungate's conviction.

[21] Affirmed.

FOOTNOTES

1.   Subsequently amended by Pub. L. No. 218-2025, § 19 (eff. July 1, 2025); Pub. L. No. 238-2025, § 88 (eff. July 1, 2025).

Brown, Judge.

Felix, J., and Scheele, J., concur.