Stansberry had his hand in his right pocket and was reaching for something that was not readily apparent to Officer Perkins, so Officer Perkins ordered Stansberry to come to the back of the truck and place his hands on the vehicle. Stansberry replied, “not today” and started taking his clothes off. Tr. 23. He pulled his shirt over the top of his head and charged at Officer Perkins from ten feet away. Officer Perkins drew his pepper spray and announced that he would spray Stansberry if he continued moving closer. Stansberry nevertheless disobeyed and kept charging and removing his clothes, so Officer Perkins sprayed him in the face from six feet away. Stansberry continued charging; Officer Perkins moved back and sprayed him again. This time, the pepper spray blinded Stansberry, and after ten seconds of staggering around he told Officer Perkins, “I’m done” and submitted to handcuffs. Tr. 25; 55.
. . . .
[T]he term “forcibly” modifies “resists, obstructs, or interferes.” Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). Thus, the word “forcibly” is a word descriptive of the type of resistance proscribed by law, and “[r]esistance, obstruction, or interference with force is the action the statute addresses.” Id. One “forcibly resists” law enforcement when “strong, powerful, violent means are used to evade a law enforcement official’s rightful exercise of duties.” Id. However, the force necessary to sustain a conviction need not rise to the level of mayhem, and our supreme court has acknowledged that a “modest level of resistance” may suffice. Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009) (citing Johnson v. State, 833 N.E.2d 516, 517 (Ind. Ct. App. 2005)).
Thus, Indiana courts have grappled with the issue of when resistance, obstruction, or interference rises to the level of forcible resistance, obstruction, or interference. Passive inaction is insufficient because refusing to present one’s arms for handcuffing, id. at 966, or refusing to stand, without more, is not forcible resistance, obstruction, or interference. A.C. v. State, 929 N.E.2d 907, 911 (Ind. Ct. App. 2010). Even if passive resistance requires police officers to use force, it is insufficiently forceful. See, e.g., Colvin v. State, 916 N.E.2d 306, 307-09 (Ind. Ct. App. 2009) (refusing to comply with officers’ commands to remove hands from pockets not forcible resistance even though officers had to physically place defendant on the ground), trans. denied; Braster v. State, 596 N.E.2d 278, 280 (Ind. Ct. App. 1992) (defendant remained standing after being ordered to lie on the floor and the officer swept defendant’s legs out from underneath him), trans. denied.
Moreover, even if a defendant’s resistance, obstruction, or interference is not passive, it still may still fall short of being considered “forcible.” In Spangler, 607 N.E.2d at 724, when a sheriff’s deputy attempted to serve the defendant with process, the defendant told the officer “I told you not to bother me at work…You’re not going to give them to me here…Don’t you ever bother me at work again.” Id. at 721. The defendant then turned around and walked away from the officer. Id. The deputy told the officer to “come back here” but Spangler only stopped long enough to express his dissatisfaction with the deputy and told him “I’m not going to take those papers here, don’t bother me.” Id. Our supreme court held that this was resistance, but not forcible resistance. Id. at 724-25; see also Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind. Ct. App. 1998) (defendant resisted but not forcibly when he twisted and turned a little bit, and, even after being sprayed with mace, held onto a flag the officer was attempting to recover).
On the other hand, we have held that the action of placing one’s hands on the casing of a doorway to resist leaving the house is forceful. Wellman v. State, 703 N.E.2d 1061, 1064 (Ind. Ct. App. 1998). So, too, is the action of turning away from and using one’s shoulders to push officers away as well as stiffening one’s body to prevent entry into a transport vehicle. Johnson v. State, 833 N.E.2d 516, 518-19 (Ind. Ct. App. 2005). Adhering to the rule that the statute requires only modest levels of force, our supreme court has indicated that merely stiffening one’s arms instead of presenting them for handcuffing suffices for force. Graham, 903 N.E.2d at 966. Additionally, we recently held that merely showing strength and a threat of violence is sufficient to prove forcible resistance, obstruction, or interference. Pogue v. State, 937 N.E.2d 1253, 1258 (Ind. Ct. App. 2010) (“[defendant’s] act of displaying a box cutter throughout his interaction with [a police officer] coupled with his refusal to drop the box cutter when instructed to do so amounted to a visual showing of strength and a threat of violence sufficient to prove forcible resistance, obstruction, or interference”), trans. denied.
Here, the trial court stated that “I’m satisfied that the attempted resisting was forcible” (Tr. 119). Thus the trial court expressly found that Stansberry did not resist, obstruct, or interfere with Officer Perkins’s execution of his duties. If we were working on a blank slate we may have reached a different conclusion on these facts. However, given the trial court’s findings, Stansberry could not be convicted of Resisting Law Enforcement.
Nor may he be convicted of “Attempted Resisting Law Enforcement.” The statute at issue here criminalizes resistance, obstruction, or interference with force. Spangler, 607 N.E.2d at 723. The trial court found that Stansberry acted with force. However, the trial court found that Stansberry did not resist, obstruct, or interfere. Because “forcibly” only modifies the type of resistance, obstruction, or interference actionable under the criminal code, it cannot serve as a separate element that would, without more, support an included offense of attempt. [Footnote omitted.]
Moreover, we observe that the very nature of the offense of Resisting Law Enforcement is almost necessarily one of an attempt to elude the exercise of law enforcement duties. Short of escape, almost any action one takes towards thwarting law enforcement is necessarily one of an attempt. It is actionable when it is coupled with force. By finding that Stansberry did not resist, obstruct, or interfere, then, the trial court, as the finder of fact, essentially concluded that Stansberry’s actions fell short of the modest level of resistance necessary to sustain a conviction.
MATHIAS, J., and CRONE, J., concur.