COA: ‘Forcibly’ resisting arrest conviction reversed for insufficient evidence

A Marion County man’s resisting arrest conviction for refusing to remove his hands from his pockets presented legitimate questions about the element of force required for such a crime, the Indiana Court of Appeals observed in a Thursday reversal.

Indianapolis Metropolitan Police Department Officer Shawn Romeril confronted Torence Jackson, Jr. and a companion after he received a call of two men harassing customers at a gas station in October 2019.

As Romeril drove up in a marked patrol car, the two men saw him and put their hands in their pockets. 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. Although Jackson’s companion complied, Jackson kept his hands in his pockets and refused to remove them until the officer removed Jackson’s hands from his pockets and handcuffed him.

Jackson’s companion at that point stood up and ran away, the officer chased him, and Jackson fled the scene while Romeril was gone. Additional officers later found Jackson, who was arrested and charged with Class A misdemeanor forcibly resisting law enforcement and Class B misdemeanor public intoxication.

A trial court later dismissed the intoxication charge but found Jackson guilty of resisting arrest and sentenced him.

In reversing Jackson’s conviction, the Indiana Court of Appeals concluded that the facts of Jackson’s case more closely resemble the circumstances of Graham v. State, 903 N.E.2d 963 (Ind. 2009), Berberena v. State, 914 N.E.2d 780 (Ind. Ct. App. 2009) and Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009) than the circumstances of Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App. 2005).

“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,” Senior Judge Randall T. Shepard wrote.

“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,” it concluded.

Additionally, the appellate court found the trial court abused its discretion by ordering Jackson to pay a public defender fee without asking about his ability to pay. It likewise reversed the fee’s imposition in its decision in Torence L. Jackson, Jr. v. State of Indiana, 20A-CR-385.