David, J.
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.
Still, these cases are necessarily fact-sensitive, and . . . appellate courts have attempted to place them along a spectrum of force, though often with the facts varying only by slight degrees. A side-effect of this approach can be a degree of unpredictability in outcome, for both the defendant and the State.
For example, in K.W., we held that the evidence was insufficient to sustain a juvenile adjudication for resisting law enforcement when the juvenile began to pull away and turn from a school resource officer attempting to cuff him, 984 N.E.2d at 612–13, and in A.C. v. State, the Court of Appeals similarly found that a juvenile did not act forcibly when he refused to stand when asked and leaned away from an officer, 929 N.E.2d 907, 911–12 (Ind. Ct. App. 2010). But in Johnson v. State, the Court of Appeals found forcible resistance because that defendant turned and pushed away from officers as they attempted to search him, and stiffened up as they put him in a transport vehicle. 833 N.E.2d 516, 518–19 (Ind. Ct. App. 2005).
And in Pogue v. State, the Court of Appeals held that a defendant acted forcibly when he displayed a box cutter and refused to drop it when asked, but instead seemed to try to put it back in his pocket. 937 N.E.2d 1253, 1258–59 (Ind. Ct. App. 2010), trans. denied. But in Colvin v. State, the Court of Appeals found that a defendant did not act forcibly just because he refused an order to remove his hands from his pockets but had to be taken physically to the ground by an officer. 916 N.E.2d 306, 309 (Ind. Ct. App. 2009), trans. denied.
Nevertheless, we still remain unconvinced that there needs to be any strict bright-line test for whether a defendant acts “forcibly”—at least, not one with any more definitiveness than the language already in use by our case law. Some things are appropriately suited for such tests, see, e.g., Bailey v. State, 979 N.E.2d 133, 141–42 (Ind. 2012) (identifying reasons that bright-line rule that any degree of physical pain may constitute bodily injury is preferred over “case-by-case comparison to determine whether a victim’s pain is sufficiently significant”), and some things are not, see id. at 141 n.17 (no bright-line rule dividing pain and extreme pain, but “extreme pain” is something well within common understanding of average fact-finder).
We think whether conduct is “forcible,” such that it may support a conviction for resisting law enforcement, falls into the latter of these two camps. Given the definition we have articulated, we feel confident that triers of fact will make the proper determinations when confronted with the facts of the cases before them, and our body of case law provides ample guideposts for appellate review.
And here, when viewed in a light most favorable to the conviction, we believe the evidence is sufficient to sustain Walker’s conviction. Officer Ehret’s testimony indicates that he arrived as Walker and another man were arguing, and he ordered the two men to the ground several times—neither complied until Officer Ehret threatened to use his taser as the argument escalated to violence. At that point, one combatant dropped to the ground, but Walker turned towards Officer Ehret and began advancing on him. With his fists clenched—and at a point raised—and acting in an aggressive manner, Walker ignored repeated warnings and orders from Officer Ehret and advanced to near striking distance. At that point, Officer Ehret deployed his taser and was able to subdue Walker.
Walker argues that his refusal to lay down on the ground, and the fact that Officer Ehret had to use force to eventually get Walker on the ground, does not in and of itself, prove any forcible action on Walker’s part. He also argues that simply walking toward Officer Ehret, in and of itself, does not constitute the use of strong, powerful means to resist law enforcement. He is correct on both points, and if those were the only actions Walker had taken (or refused to take), this might be a different case.
Where Walker’s argument fails is in the attempt to distinguish his case factually from Pogue and Stansberry. He acknowledges that those cases are representative of the idea that the threat of violence can support a conviction for resisting law enforcement, but argues that unlike in Pogue, he did not display a weapon in his encounter with Officer Ehret, and that unlike in Stansberry, there was no evidence of “purposefully aggressive behavior in defiance of arrest” directed at Officer Ehret. (Appellant’s Br. at 9–10.)
For one thing, Walker did display a weapon—his fists—and while he appears to claim that his fists were simply still clenched as a result of a racially-charged fight, this is asking this Court to engage in speculation as to what Walker might have done had he closed the distance completely between he and Officer Ehret. There was no direct evidence presented as to who Walker’s aggression was aimed at or why his fists were clenched. Given the totality of Walker’s conduct, however, we think it is a reasonable inference to conclude that his aggression was at that point directed at Officer Ehret. We think this is sufficient to show an active threat of strength, violence, or power.
And as for his argument that he showed no evidence of “purposefully aggressive behavior in defiance of arrest,” we note first the statute does not require his action to specifically be “in defiance of arrest,” only a forcible resistance, obstruction, or interference with Officer Ehret’s execution of his duties. And second, if advancing in an aggressive manner and with fists clenched to within three or four feet of the only police officer on the scene, who has been ordering you to the ground, is not at least “purposefully aggressive behavior,” then we are not clear what conduct might ever merit such a label.
Dickson, C.J., Massa, and Rush, J.J., concur.
Rucker, J., concurs in result.