Ajabu v. State, 704 N.E.2d 494 (Ind. Ct. App. 1998). · Go Syfert
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Ajabu v. State, 704 N.E.2d 494 (Ind. Ct. App. 1998). Cases Citing This Book View Copy Cite
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cited 4× by 3 distinct cases, last quoted 2011 · …made threatening or violent actions at p. 496 ✓ Topic ↗
cited 3× by 3 distinct cases, 2011–2017 · …could not remember what berberena was doing with his hands, and the struggle did not last very long. ⚠ not in text Topic ↗
50 citation events (44 in the last 25 years) across 3 distinct courts.
Strongest positive: Calvin McGregory v. State of Indiana (mem. dec.) (indctapp, 2017-03-09) · Strongest negative: Johnson v. State (indctapp, 2005-08-31)
Treatment trajectory · 1999 → 2026 · click a year to view as-of
1999 2012 2026
Top citers, strongest first. 22 distinct citers. How cited ↗
discussed Cited "but see" Johnson v. State (2×) also: Cited as authority (rule)
Ind. Ct. App. · 2005 · signal: but see · confidence high
But see Ajabu, 704 N.E.2d at 495-96 .
discussed Cited as authority (rule) Calvin McGregory v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2017 · confidence medium
The court also observed that the officer “did not testify, and there [was] no evidence, that Berberena stiffened his arms or otherwise ‘made threatening or violent actions’ to contribute to the struggle.” Id. (quoting Ajabu v. State, 704 N.E.2d 494, 496 (Ind. Ct. App. 1998)).
discussed Cited as authority (rule) Steven A. Pearson v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2016 · confidence medium
The court also observed that the officer “did not testify, and there [was] no evidence, that Berberena stiffened his arms or otherwise ‘made threatening or violent actions’ to contribute to the struggle.” Id. (quoting Ajabu v. State, 704 N.E.2d 494, 496 (Ind. Ct. App. 1998)).
discussed Cited as authority (rule) Lakisha Jordan v. State of Indiana
Ind. Ct. App. · 2015 · confidence medium
The court also observed that the officer “did not testify, and there [was] no evidence, that Berberena stiffened his arms or otherwise ‘made threatening or violent actions’ to contribute to the struggle.” Id. (quoting Ajabu v. State, 704 N.E.2d 494, 496 (Ind.Ct.App.1998)).
discussed Cited as authority (rule) Steven C. Peters v. State of Indiana
Ind. Ct. App. · 2014 · confidence medium
Berberena v. State, 914 N.E.2d 780 (Ind. Ct. App. 2009), trans. denied, is equally distinguishable in that “there [was] no evidence that [Berberena] stiffened his arms or otherwise ‘made threatening or violent actions’ to contribute to the struggle.” Id. at 782 (citing Ajabu v. State, 704 N.E.2d 494, 496 (Ind. Ct. App. 1998)).
discussed Cited as authority (rule) Monisha Rhodes v. State of Indiana
Ind. Ct. App. · 2014 · confidence medium
A survey of previous cases shows that merely walking away from a law- enforcement encounter, see, e.g., Spangler v. State, 607 N.E.2d 720 (Ind. 1993), leaning away from an officer’s grasp, see, e.g., A.C. v. State, 929 N.E.2d 907 (Ind. Ct. App. 2010), or “twisting and turning ‘a little bit’ ” against an officer’s actions, see, e.g., Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind. Ct. App. 1998), do not establish “forcible” resistance.
discussed Cited as authority (rule) Betty Woods v. State of Indiana
Ind. Ct. App. · 2014 · confidence medium
Therefore, we concluded that “[b]ecause there was no evidence that Berberena’s opposition was forceful rather than merely difficult, the evidence is insufficient to support his conviction.” See also Colvin v. State, 916 N.E.2d 306, 309 (Ind. Ct. App. 2009), trans. denied (reversing a resisting law enforcement conviction because the “evidence [did] not support a reasonable inference that Colvin did more than passively resist the officers”); Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind. Ct. App. 1998) (reversing a resisting law enforcement conviction where the defendant resisted by twis…
discussed Cited as authority (rule) K.W. v. State of Indiana
Ind. · 2013 · confidence medium
Merely walking away from a law-enforcement encounter, Spangler, 607 N.E.2d at 724 , leaning away from an officer’s grasp, A.C. v. State, 929 N.E.2d 907, 912 (Ind.Ct.App.2010), or “twisting and turning ‘a little bit’ ” against an officer’s actions, Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind.Ct.App.1998), do not establish “forcible” resistance.
discussed Cited as authority (rule) George R. Clark v. State of Indiana
Ind. Ct. App. · 2012 · confidence medium
For example, in Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind. Ct. App. 1998), the defendant did not act with the requisite “force” when he resisted by twisting and turning a little bit and, even after being sprayed with mace, held onto the flag the officer was attempting to recover.
discussed Cited as authority (rule) Anthony Earl Coakley v. State of Indiana
Ind. Ct. App. · 2012 · confidence medium
Later, in Ajabu v. State, 704 N.E.2d 494, 495 (Ind. Ct. App. 1998), a panel of this court found that the evidence was insufficient to establish that the defendant acted forcibly, where the defendant did nothing 5 more than stand his ground.
examined Cited as authority (rule) Aguirre v. State (3×) also: Cited "see"
Ind. Ct. App. · 2011 · confidence medium
The court also observed that the officer “did not testify, and there [was] no evidence [ ] that Berberena stiffened his arms or otherwise ‘made threatening or violent actions’ to contribute to the struggle.” Id. (quoting Ajabu v. State, 704 N.E.2d 494, 496 (Ind.Ct.App.1998)).
discussed Cited as authority (rule) Pogue v. State
Ind. Ct. App. · 2010 · signal: cf. · confidence medium
Cf. Ajabu v. State, 704 N.E.2d 494, 496 (Ind.Ct.App.1998) (providing that the evidence was insufficient to support appellant's resisting law enforcement conviction because the record did not contain any evidence that appellant made threatening or violent actions toward the police).
cited Cited as authority (rule) Lopez v. State
Ind. Ct. App. · 2010 · confidence medium
Id. at 495-96 (footnote omitted).
examined Cited as authority (rule) Berberena v. State (4×) also: Cited "see"
Ind. Ct. App. · 2009 · confidence medium
Id. at 496 (footnote omitted, emphasis added).
discussed Cited as authority (rule) Arthur v. State
Ind. Ct. App. · 2005 · signal: cf. · confidence medium
Cf. Ajabu v. State, 704 N.E.2d 494, 495 (Ind.Ct.App.1998) (requiring some form of violent action directed toward another to establish resisting law enforcement by force) with Wellman v. State, 703 N.E.2d 1061, 1063 (Ind.Ct.App.1998) (defining "flight" for purposes of the resisting law enforcement statute as "a knowing *387 attempt to escape law enforcement when the defendant is aware that a law enforcement officer has ordered him to stop").
cited Cited as authority (rule) Davies v. State
Ind. Ct. App. · 2000 · confidence medium
Ajabu v. State, 704 N.E.2d 494, 495 (Ind.Ct.App.1998).
discussed Cited "see" Jarvis Peele v. State of Indiana (mem. dec.)
Ind. Ct. App. · 2019 · signal: see · confidence high
See Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind. Ct. App. 1998) (reversing a resisting conviction where police officer tried to take a flag from Ajabu and he held onto the flag, twisting and turning it, and had to be dragged for eight to ten feet before letting it go because, while there was “some resistance,” there was no evidence that the defendant had “acted forcibly”). [28] On appeal, the State makes the novel argument that, because Peele maintained constant eye contact with Officer Allen while reaching into the vehicle, a factfinder could infer that Peele was making “a visual sh…
cited Cited "see" Colvin v. State
Ind. Ct. App. · 2009 · signal: see · confidence high
See Ajabu v. State, 704 N.E.2d 494, 496 (Ind.Ct.App.1998).
discussed Cited "see" Bowden v. Town of Speedway, Ind.
S.D. Ind. · 2008 · signal: see · confidence high
See Ajabu v. State, 704 N.E.2d 494, 496 (Ind.App.1998) (reversing conviction for resisting arrest because defendant’s actions of “twisting and turning” were active resistance but did not involve “threatening or violent actions toward the police”).
discussed Cited "see" Briggs v. State (2×) also: Cited "see, e.g."
Ind. Ct. App. · 2007 · signal: see · confidence high
See Ajabu v. State, 704 N.E.2d 494 .
discussed Cited "see, e.g." Stansberry v. State
Ind. Ct. App. · 2011 · signal: see also · confidence medium
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).
discussed Cited "see, e.g." Atkinson v. State
Ind. Ct. App. · 2004 · signal: see also · confidence medium
See also Ajabu v. State, 704 N.E.2d 494, 496 (Ind.Ct.App.1998) (concluding that where the defendant refused a police officer's order to release a flag and twisted and turned as he held onto the flag but did not make threatening or violent actions toward the officer, the evidence was insufficient to support the conviction for forcibly resisting law enforcement).
Retrieving the full opinion text from the archive…
Mmoja AJABU, Appellant-Defendant,
v.
STATE of Indiana, Appellee-Plaintiff
49A05-9801-CR-44.
Indiana Court of Appeals.
Dec 10, 1998.
704 N.E.2d 494
1998 Ind. App. LEXIS 2098
1998 WL 904955
Timothy J. Miller, Indianapolis, for Appellant-Defendant., Jeffrey A. Modisett, Attorney General, K.C. Norwalk, Deputy Attorney General, Indianapolis, for Appellee-Plaintiff.
Baker, Garrard, Robb.
Cited by 28 opinions  |  Published

OPINION

BAKER, Judge.

Appellant-defendant Mmoja Ajabu appeals his conviction for Resisting, Obstructing or Interfering With a Law Enforcement Officer by Force, [1] a Class A misdemeanor. Specifically, Ajabu contends that the evidence was insufficient to demonstrate that he forcibly resisted law enforcement.

FACTS

The facts most favorable to the judgment reveal that on the night of June 4, 1996, Ajabu joined several others in a demonstration on Monument Circle in Indianapolis to protest the scheduled execution of Tommy Smith. The protest coincided with a gathering of thousands of people to observe the Olympic torch pass through Indianapolis. Record at 19. The Indianapolis Police Department had assigned a number of police officers to control the scene. As the torch drew near, Officer Paul McDonald observed Roy Roberson attempting to light an American flag that was being held by Ajabu. Officer McDonald testified that he ordered Roberson not to light the flag because it would be “too dangerous.” R. at 199-200. Howev[*495] er, Ajabu continued to direct Roberson to ignite the flag. Officer McDonald proceeded to grab Ajabu and the flag. Ajabu reacted by holding onto his flag and twisting and turning “a little bit.” R. at 200. Thereafter, Sergeant Thomas Dubois attempted to recover the flag while Officer McDonald sprayed mace into Ajabu’s face. Sergeant Dubois then dragged Ajabu for eight to ten feet before Ajabu finally released the flag. R. at 250.

The State charged Ajabu with Resisting, Obstructing or Interfering With a Law Enforcement Officer by Force, [2] a Class A misdemeanor, and Disorderly Conduct, [3] a Class B misdemeanor. Following a bench trial which commenced on November 19, 1997, Ajabu was convicted of resisting, obstructing or interfering with a law enforcement officer by force and acquitted of disorderly conduct. [4] On December 9, 1997, the trial court sentenced Ajabu to 365 days in jail, giving him credit for the seventy-seven days served and suspending the balance with no probation. R. at 520. Ajabu now appeals.

DISCUSSION AND DECISION

Initially, we note our standard of review. When reviewing a claim of sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. McKinney v. State, 686 N.E.2d 844, 845 (Ind.1997). We look only to the evidence and the reasonable inferences therefrom that support the verdict. Id This court will affirm the conviction if evidence of probative value exists from which the trier of fact could find the defendant guilty beyond a reasonable doubt. Id

I.C. § 35 — 44—3—3(a)(1) provides as follows:

A person who knowingly or intentionally ... forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer ... commits resisting law enforcement, a Class A misdemean- or....

Our supreme court has made clear that, under this statute, any action to resist must be done with force. Spangler v. State, 607 N.E.2d 720, 724 (Ind.1993) (reversing defendant’s conviction for resisting law enforcement because there was insufficient evidence of force where defendant merely resisted service of process by vehemently refusing to accept service and turning and walking away). A defendant “forcibly resists” law enforcement when “strong, powerful, violent means” are utilized to evade an officer’s lawful exercise of his duties. Id. at 723. Therefore, “some form of violent action toward another” is required, and if a defendant does nothing more than stand his ground, this requirement is not satisfied. Id. at 724.

At trial, the State argued that Ajabu forcibly resisted Officer McDonald by refusing to release the flag. The trial court agreed and made the following statement at the sentencing hearing:

Mr. Ajabu felt that, of course, he was ... it was his flag, he was going to ... his property and he wasn’t going to give it up. And I felt he should have done so. Perhaps as Mr. Roberson did. But he didn’t. He resisted and hung on to the flag and resisted the securing of the flag. And for that reason I’m going to enter a finding of guilty to Resisting Law Enforcement on Mr. Ajabu.

R. at 517 (omission in original). We agree inasmuch as the facts do establish that Ajabu resisted Officer McDonald. Specifically, the record reveals that Ajabu twisted and turned a little as he held onto his flag, even after being maced, and only let go after Officer[*496] Dubois dragged him approximately eight to ten feet.

While we agree that this evidence establishes some resistance by Ajabu, the record fails to disclose any evidence from which a reasonable trier of fact could conclude beyond a reasonable doubt that Ajabu acted forcibly, as defined by our supreme court in Spangler. 5 The evidence merely shows that Ajabu resisted Officer McDonald by claiming ownership and holding onto his flag. The record does not reveal any evidence that Ajabu made threatening or violent actions toward the police. Based on the evidence in the record, we are compelled to hold that the facts presented at trial were insufficient to establish Ajabu’s guilt beyond a reasonable doubt.

Judgment reversed.

GARRARD and ROBB, JJ., concur.
1

. Ind.Code 35-44-3-3(a)(l).

2

. The charging information on this count read as follows:

MMOJA AJABU, on or about June 4, 1996, knowingly and forcibly resisted, obstructed or interfered with Paul McDonald, a law enforcement officer employed by the Indianapolis Police Department, while this officer was lawfully engaged in his duties as a law enforcement officer.
R. at 20C.
4

. The trial court found Ajabu not guilty of disorderly conduct because he was not "engaging in [the flag burning] to disrupt the lawful assembly of persons but to simply cany out a [constitutionally protected] protest." R. at 512-13, 517.

5

. The State cites Small v. State, 632 N.E.2d 779 (Ind.Ct.App.1994), trans. denied, as an example of a case that "distinguished and analyzed” Spangler. Appellee’s Brief at 7. However, the facts of Small are inapposite to those in the instant case. In Small, the defendant led police on a foot chase, a car chase and then another foot chase. When an officer was finally able to inform him that he was under arrest, the defendant pulled away from the officer's grasp, began to walk away and then struck the officer in tire chest with his fist. The defendant again fled. The officer apprehended him and they began to wrestle in the street. The struggle continued in a moving car with both the defendant and the officer "still half-way hanging out of the car.” Id. at 781-82. We fail to see any similarity between Small and the case at hand.