Resisting conviction affirmed over challenged ‘force’ instruction

An Indianapolis man’s conviction of Class A misdemeanor resisting law enforcement will stand after an appellate court declined to reverse it over a challenged jury instruction that sought to illustrate what appellate courts have construed to constitute “force.”

Cordell O. Spencer was convicted of the charge in Marion Superior Court after he was arrested in August 2017 by Indianapolis Metropolitan Police Officer Ryan Lundy, who responded to a dispatch call for shots fired in an east side alley. When Lundy arrived in the vicinity, he saw a parked car with a woman’s foot sticking out the driver’s window.

As Lundy approached, he saw a woman in the driver’s seat talking on her cellphone, and as he got closer, Spencer quickly exited the passenger side door, which “startled” Lundy because he didn’t know there was a passenger. As Spencer got out, Lundy noticed through the driver’s side window two handguns in the car’s center console, then drew his gun and ordered Lundy to turn around and put his hands behind his back.

Spencer replied, “Fu** you,” “I don’t have to do that,” and “why, so you can shoot me in the back,” according to Indiana Court of Appeals Chief Judge Nancy Vaidik, who wrote the opinion affirming Spencer’s conviction in Cordell O. Spencer v. State of Indiana, 18A-CR-2878. Spencer told Lundy repeatedly during the confrontation that he had a valid permit to carry the gun.

“Officer Lundy’s immediate concern was not whether Spencer had a valid gun license, because (Lundy testified,) ‘[a] gun [license] is not a permission slip to fire off rounds in the city,’” Vaidik wrote. Lundy also testified that if Spencer would have cooperated, Lundy “would have confirmed that Spencer had a valid gun license and ‘we wouldn’t be here today’.”

After backup arrived on the scene, Lundy holstered his gun and took out his Taser. Lundy explained to the arriving Sgt. Franklin Wooten that there were two guns in the car and that Spencer was disobeying Lundy’s commands.

“Sergeant Wooten grabbed Spencer’s left wrist and Officer Lundy grabbed his right wrist; however, Spencer ‘stiffened up’ to avoid being handcuffed. Spencer then ‘pulled away’ ‘with enough force’ that Officer Lundy lost his grip,” Vaidik wrote. “Spencer ‘spun around’ and refused to put his hands behind his back despite the officers’ numerous commands to do so. 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.”

At his trial, Spencer’s counsel tendered a jury instruction based on an opinion the COA had issued a day earlier, Brooks v. State, 113 N.E.3d 782 (Ind. Ct. App. 2018) However, the trial court declined to give the tendered instruction because it contained examples of behavior that would be insufficient to constitute force. The trial court instead gave the pattern jury instruction.

“While this appeal was pending, the Indiana Supreme Court addressed a similar issue in Batchelor v. State, 119 N.E.3d 550 (Ind. 2019). In that case, the defendant was charged with resisting law enforcement by fleeing, and the trial court gave two jury instructions: the pattern instruction on resisting law enforcement by fleeing and a ‘supplemental’ instruction tendered by the State, which attempted to explain the term ‘fleeing’ and was taken from an opinion from this Court,” Vaidik wrote. “Our Supreme Court found that the supplemental instruction was misleading because it emphasized a factual scenario, thereby minimizing other potentially relevant evidence.”

“Spencer’s proposed jury instruction sets forth five examples from appellate decisions where this Court and our Supreme Court found that the ‘force’ element was not satisfied. Like the instruction in Batchelor, it is misleading because it emphasizes particular factual scenarios, thereby minimizing other potentially relevant evidence,” the COA held. “Whether a defendant forcibly resists is a factually sensitive determination. Accordingly, the trial court did not abuse its discretion in declining to give Spencer’s proposed jury instruction on force.”

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