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Spencer v. State

Court of Appeals of Indiana

May 28, 2019

Cordell O. Spencer, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal from the Marion Superior Court The Honorable Clayton Graham, Judge Trial Court Cause No. 49G07-1708-CM-30572

          ATTORNEY FOR APPELLANT Rory Gallagher Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana


         Case Summary

         [¶1] Cordell O. Spencer appeals his conviction for Class A misdemeanor resisting law enforcement by force. He argues that the trial court erred in declining to give his tendered jury instruction on "force," which included examples from cases where our appellate courts concluded that the "force" element was not satisfied. Because the proposed instruction emphasized particular factual scenarios, thereby minimizing other potentially relevant evidence, the trial court did not abuse its discretion in declining to give it.

         Facts and Procedural History

         [¶2] The evidence most favorable to the verdict reveals that on the afternoon of August 19, 2017, Indianapolis Metropolitan Police Department Officer Ryan Lundy was on duty when he received a dispatch of "[s]hots fired" in an alley in the 1500 block of North Grant Avenue. Tr. p. 65. Officer Lundy arrived in a couple of minutes and saw a car parked in some grass right off the alley with a foot sticking out of the open driver's window. As Officer Lundy approached the car to investigate, he saw a woman in the driver's seat talking on her cell phone. As Officer Lundy got closer to the car, Spencer quickly exited the front passenger door, which "startled" Officer Lundy because he didn't know there was a passenger. Id. at 71. After Spencer exited the car, Officer Lundy looked through the open driver's window and saw two handguns in the center console. Upon seeing the guns, Officer Lundy drew his gun and ordered Spencer, who had since walked to the back of the car, to "turn around" and "put his hands behind his back" so that he could be handcuffed for officer safety while Officer Lundy investigated. Id. at 72. The woman also exited the car and began filming Officer Lundy with her cell phone. Spencer responded to Officer Lundy's commands by saying "Fu** you," "I don't have to do that," and "why, so you can shoot me in the back." Id. at 75. Spencer also told Officer Lundy several times that he had a "gun permit" and to "check [his] fu**ing gun permit." Id. Officer Lundy's immediate concern was not whether Spencer had a valid gun license, because "[a] gun [license] is not a permission slip to fire off rounds in the city." Id.; see also id. at 76 (Officer Lundy explaining that if Spencer would have cooperated, he would have confirmed that Spencer had a valid gun license and then "we wouldn't be here today").

         [¶3] At this point, another officer, Sergeant Franklin Wooten, arrived on the scene. Officer Lundy felt "safer" once Sergeant Wooten arrived, so he holstered his gun and took out his taser. Id. at 80. Officer Lundy told Sergeant Wooten that there were two guns in the car and that Spencer was disobeying his commands to turn around and put his hands behind his back. Sergeant Wooten grabbed Spencer's left wrist and Officer Lundy grabbed his right wrist; however, Spencer "stiffened up" to avoid being handcuffed. Id. at 82. Spencer then "pulled away" "with enough force" that Officer Lundy lost his grip. Id. at 105. Spencer "spun around" and refused to put his hands behind his back despite the officers' numerous commands to do so. Id. at 54. At this point, Sergeant Wooten advised Officer Lundy to tase Spencer. Officer Lundy, who had already planned on doing so, tased Spencer once. Spencer "immediately gave up," at which point the officers were able to place him in handcuffs. Id. at 55.

         [¶4] The State charged Spencer with Class A misdemeanor resisting law enforcement.[1] See Appellant's App. Vol. II p. 16 (charging information alleging that Spencer knowingly forcibly resisted, obstructed, or interfered with Officer Lundy and Sergeant Wooten while they were lawfully engaged in the execution of their duties). At the jury trial, defense counsel tendered a jury instruction based on certain language from an opinion that this Court had issued the day before, Brooks v. State, 113 N.E.3d 782 (Ind.Ct.App. 2018):

Defendant's Proposed Jury Instruction on "Force"

In order to find the Defendant guilty of resisting law enforcement, you must find that the State of Indiana has proven beyond a reasonable doubt that the Defendant forcibly resisted, obstructed, or interfered with a law enforcement officer who was lawfully engaged in his duties as a law enforcement officer.
Any action to resist, obstruct, or interfere must be done with force.
Force is defined as using strong, powerful, violent means to evade a law enforcement official's rightful ...

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