Vaidik, CJ.
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.
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The State charged Spencer with Class A misdemeanor resisting law enforcement. 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 exercise of his duties.
Force requires some form of violent action toward another.
It is error as a matter of law to conclude that force includes all actions that are not passive.
The following examples are insufficient to constitute force:
Turning and pulling away from a law enforcement officer;
Leaning away from an officer’s grasp;
Refusing to present arms for handcuffing;
Twisting and turning a little bit against an officer’s actions; or
Walking away from a law enforcement encounter.
However, the force involved need not raise to the level of mayhem.
Source: Brooks v. State of Indiana, l8A-CR-759 (Ind. Ct. App. October 31, 2018) (internal citations omitted).
… The State objected on grounds that the jury instruction (1) was not the pattern instruction and (2) cited “examples.” The trial court declined to give the instruction because it contained examples. The trial court, however, gave the pattern jury instruction on resisting law enforcement by force. 1 Ind. Pattern Jury Instructions—Criminal 5.3000 (4th ed. 2019). The jury found Spencer guilty, and the trial court sentenced him to 365 days with 18 days executed (time served) and the remainder suspended.
Spencer makes one argument on appeal: the trial court erred in refusing to give his tendered jury instruction on “force.” “The trial court has broad discretion as to how to instruct the jury, and we generally review that discretion only for abuse.” McCowan v. State, 27 N.E.3d 760, 763 (Ind. 2015) (quotation omitted). To determine whether a jury instruction was properly refused, we consider: (1) whether the tendered instruction correctly states the law; (2) whether there was evidence presented at trial to support giving the instruction; and (3) whether the substance of the instruction was covered by other instructions that were given. Id. at 763-64. In doing so, we consider the instructions as a whole and in reference to each other and do not reverse the trial court for an abuse of discretion unless the instructions as a whole mislead the jury as to the law in the case. Id.
… The State argues that Spencer’s proposed instruction is “confusing” because of these examples. We agree with the State.
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. Id. at 561. Our Supreme Court found that the supplemental instruction was misleading because it emphasized a factual scenario, thereby minimizing other potentially relevant evidence. Id. at 560. As the Court explained:
[W]e have long held that certain language or expression used by an appellate court to reach its final conclusion is not [necessarily] proper language for instructions to a jury. This is especially true when, as here, the instruction is rooted in reasoning found in a sufficiency-of-the-evidence case, not an appellate opinion approving a jury instruction.
Id. at 563 (quotations and citations omitted). Accordingly, the Court disapproved of the supplemental instruction and held that “[g]oing forward, trial courts should use” the pattern jury instruction on resisting law enforcement by fleeing. Id. at 563. The Court noted that while counsel may argue during closing argument whether the defendant “fled,” “it’s ultimately for the jury to decide whether there’s evidence of . . . fleeing under the statute.”
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. 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.
Affirmed.
Kirsch, J., and Altice, J., concur.