MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 22 2016, 5:35 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Gregory F. Zoeller Madison, Indiana Attorney General of Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon McGaughey, September 22, 2016 Appellant-Defendant, Court of Appeals Case No. 39A01-1601-CR-119 v. Appeal from the Jefferson Superior Court State of Indiana, The Honorable Michael J. Appellee-Plaintiff. Hensley, Judge Trial Court Cause No. 39D01-1409-CM-825
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016 Page 1 of 6 Case Summary and Issue [1] Following a jury trial, Brandon McGaughey was convicted of resisting law
enforcement, a Class A misdemeanor, and criminal mischief, a Class B
misdemeanor. McGaughey appeals, raising the sole issue of whether the
evidence is sufficient to sustain his conviction for resisting law enforcement. 1
Concluding the evidence is sufficient, we affirm.
Facts and Procedural History [2] On the evening of September 24, 2014, Deputy Joshua Cochran from the
Jefferson County Sheriff’s Department responded to a radio dispatch for
officers to watch for a reckless driver in a black SUV. After locating a black
SUV, Deputy Cochran followed the vehicle for a short distance, watching for
erratic driving behaviors and also requesting a license and registration check on
the vehicle. Dispatch informed the deputy the vehicle belonged to McGaughey
and McGaughey’s license was currently suspended. After observing the driver,
later identified as McGaughey, make “extreme jerky movements” and cross the
center line of the highway, Deputy Cochran initiated a traffic stop and
identified McGaughey as the driver. Transcript of Evidence at 16.
[3] During the traffic stop, McGaughey appeared agitated and indicated he thought
he was simply being hassled by the police, so Deputy Cochran ordered him to
1 McGaughey does not appeal his criminal mischief conviction.
Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016 Page 2 of 6 exit his vehicle to “get[] him out of his element.” Id. at 21. Meanwhile, three
other officers arrived to assist Deputy Cochran: Officer Jeremy Cox, Officer
Kurtis Wallace, and Sergeant Jeff Neace. Upon arrival, Sergeant Neace
observed the smell of alcohol on McGaughey’s breath. After being asked
whether he had been drinking, McGaughey admitted he “had a few drinks.”
Id. at 23. Deputy Cochran then conducted three field sobriety tests, concluded
that McGaughey failed each test, and placed him under arrest for operating a
vehicle while intoxicated.
[4] After being told to place his arms behind his back, McGaughey stiffened his
arms, pulled away from Deputy Cochran, and prevented Deputy Cochran from
placing the handcuffs on him. Officer Wallace assisted Deputy Cochran by
forcibly bringing McGaughey’s wrists together. After the officers secured the
handcuffs on McGaughey, Deputy Cochran asked Officer Wallace to perform a
pat-down search of McGaughey. During the search, McGaughey began yelling
and screaming, twisting his body away from Officer Wallace and refusing to
allow him to search his pockets. Officer Wallace and Deputy Cochran then
pinned McGaughey against a police vehicle to restrain his movement in order
to perform the pat-down search. Once the officers placed McGaughey in the
front seat of the police vehicle, he told them he was “going to start breaking
sh**.” Id. at 35. McGaughey then began slamming his feet into the dashboard
of the vehicle, breaking the GPS unit’s dash-mount. Officer Wallace and
Deputy Cochran forcibly removed McGaughey from the vehicle and placed
him on the ground to gain compliance. And yet, McGaughey still would not
Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016 Page 3 of 6 comply with the officers’ orders to calm down, requiring Sergeant Neace to
utilize his taser. Eventually, McGaughey calmed down and Officer Cox
transported him to jail with Sergeant Neace riding in the backseat with
McGaughey.
[5] The State charged McGaughey with four counts: operating a vehicle while
intoxicated as a Class A misdemeanor, operating a vehicle while intoxicated as
a Class C misdemeanor, resisting law enforcement as a Class A misdemeanor,
and criminal mischief as a Class B misdemeanor. A jury found McGaughey
guilty of criminal mischief and resisting law enforcement. McGaughey now
appeals his conviction for resisting law enforcement.
Discussion and Decision I. Standard of Review [6] In reviewing the sufficiency of the evidence to support a conviction, we neither
reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27
N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the
verdict and any reasonable inferences drawn therefrom. Id. We will affirm the
conviction “if there is substantial evidence of probative value supporting each
element of the crime from which a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.” Walker v. State, 998 N.E.2d 724,
726 (Ind. 2013) (citation omitted).
Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016 Page 4 of 6 II. Sufficiency of the Evidence [7] To prove resisting law enforcement as a Class A misdemeanor, the State was
required to prove that McGaughey “knowingly or intentionally . . . forcibly
resist[ed], obstruct[ed], or interfer[ed] with a law enforcement officer or a
person assisting the officer while the officer is lawfully engaged in the execution
of the officer’s duties.” Ind. Code § 35-44.1-3-1(a)(1) (2014). On appeal,
McGaughey maintains the evidence is insufficient to prove he forcibly resisted,
obstructed, or interfered with a police officer. Specifically, McGaughey
contends any “action taken . . . does not rise to the level of force necessary to
convict him of resisting law enforcement.” Appellant’s Brief at 7.
[8] “[O]ne ‘forcibly resists’ law enforcement when strong, powerful, violent means
are used to evade a law enforcement official’s rightful exercise of his or her
duties.” Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). An overwhelming
or extreme level of force is not required. Walker, 998 N.E.2d at 727. Forcible
resistance may be satisfied with even a modest exertion of strength, power, or
violence. Id. We have affirmed convictions for resisting law enforcement
where the defendant pulled away from police officers and refused to place his
hands behind his back, Lopez v. State, 926 N.E.2d 1090, 1093-94 (Ind. Ct. App.
2010), trans. denied; where a defendant was flailing, jerking, or squirming her
body while an officer was trying to handcuff her, J.S. v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 22 2016, 5:35 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jennifer A. Joas Gregory F. Zoeller Madison, Indiana Attorney General of Indiana Karl Scharnberg Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon McGaughey, September 22, 2016 Appellant-Defendant, Court of Appeals Case No. 39A01-1601-CR-119 v. Appeal from the Jefferson Superior Court State of Indiana, The Honorable Michael J. Appellee-Plaintiff. Hensley, Judge Trial Court Cause No. 39D01-1409-CM-825
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016 Page 1 of 6 Case Summary and Issue [1] Following a jury trial, Brandon McGaughey was convicted of resisting law
enforcement, a Class A misdemeanor, and criminal mischief, a Class B
misdemeanor. McGaughey appeals, raising the sole issue of whether the
evidence is sufficient to sustain his conviction for resisting law enforcement. 1
Concluding the evidence is sufficient, we affirm.
Facts and Procedural History [2] On the evening of September 24, 2014, Deputy Joshua Cochran from the
Jefferson County Sheriff’s Department responded to a radio dispatch for
officers to watch for a reckless driver in a black SUV. After locating a black
SUV, Deputy Cochran followed the vehicle for a short distance, watching for
erratic driving behaviors and also requesting a license and registration check on
the vehicle. Dispatch informed the deputy the vehicle belonged to McGaughey
and McGaughey’s license was currently suspended. After observing the driver,
later identified as McGaughey, make “extreme jerky movements” and cross the
center line of the highway, Deputy Cochran initiated a traffic stop and
identified McGaughey as the driver. Transcript of Evidence at 16.
[3] During the traffic stop, McGaughey appeared agitated and indicated he thought
he was simply being hassled by the police, so Deputy Cochran ordered him to
1 McGaughey does not appeal his criminal mischief conviction.
Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016 Page 2 of 6 exit his vehicle to “get[] him out of his element.” Id. at 21. Meanwhile, three
other officers arrived to assist Deputy Cochran: Officer Jeremy Cox, Officer
Kurtis Wallace, and Sergeant Jeff Neace. Upon arrival, Sergeant Neace
observed the smell of alcohol on McGaughey’s breath. After being asked
whether he had been drinking, McGaughey admitted he “had a few drinks.”
Id. at 23. Deputy Cochran then conducted three field sobriety tests, concluded
that McGaughey failed each test, and placed him under arrest for operating a
vehicle while intoxicated.
[4] After being told to place his arms behind his back, McGaughey stiffened his
arms, pulled away from Deputy Cochran, and prevented Deputy Cochran from
placing the handcuffs on him. Officer Wallace assisted Deputy Cochran by
forcibly bringing McGaughey’s wrists together. After the officers secured the
handcuffs on McGaughey, Deputy Cochran asked Officer Wallace to perform a
pat-down search of McGaughey. During the search, McGaughey began yelling
and screaming, twisting his body away from Officer Wallace and refusing to
allow him to search his pockets. Officer Wallace and Deputy Cochran then
pinned McGaughey against a police vehicle to restrain his movement in order
to perform the pat-down search. Once the officers placed McGaughey in the
front seat of the police vehicle, he told them he was “going to start breaking
sh**.” Id. at 35. McGaughey then began slamming his feet into the dashboard
of the vehicle, breaking the GPS unit’s dash-mount. Officer Wallace and
Deputy Cochran forcibly removed McGaughey from the vehicle and placed
him on the ground to gain compliance. And yet, McGaughey still would not
Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016 Page 3 of 6 comply with the officers’ orders to calm down, requiring Sergeant Neace to
utilize his taser. Eventually, McGaughey calmed down and Officer Cox
transported him to jail with Sergeant Neace riding in the backseat with
McGaughey.
[5] The State charged McGaughey with four counts: operating a vehicle while
intoxicated as a Class A misdemeanor, operating a vehicle while intoxicated as
a Class C misdemeanor, resisting law enforcement as a Class A misdemeanor,
and criminal mischief as a Class B misdemeanor. A jury found McGaughey
guilty of criminal mischief and resisting law enforcement. McGaughey now
appeals his conviction for resisting law enforcement.
Discussion and Decision I. Standard of Review [6] In reviewing the sufficiency of the evidence to support a conviction, we neither
reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27
N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the
verdict and any reasonable inferences drawn therefrom. Id. We will affirm the
conviction “if there is substantial evidence of probative value supporting each
element of the crime from which a reasonable trier of fact could have found the
defendant guilty beyond a reasonable doubt.” Walker v. State, 998 N.E.2d 724,
726 (Ind. 2013) (citation omitted).
Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016 Page 4 of 6 II. Sufficiency of the Evidence [7] To prove resisting law enforcement as a Class A misdemeanor, the State was
required to prove that McGaughey “knowingly or intentionally . . . forcibly
resist[ed], obstruct[ed], or interfer[ed] with a law enforcement officer or a
person assisting the officer while the officer is lawfully engaged in the execution
of the officer’s duties.” Ind. Code § 35-44.1-3-1(a)(1) (2014). On appeal,
McGaughey maintains the evidence is insufficient to prove he forcibly resisted,
obstructed, or interfered with a police officer. Specifically, McGaughey
contends any “action taken . . . does not rise to the level of force necessary to
convict him of resisting law enforcement.” Appellant’s Brief at 7.
[8] “[O]ne ‘forcibly resists’ law enforcement when strong, powerful, violent means
are used to evade a law enforcement official’s rightful exercise of his or her
duties.” Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). An overwhelming
or extreme level of force is not required. Walker, 998 N.E.2d at 727. Forcible
resistance may be satisfied with even a modest exertion of strength, power, or
violence. Id. We have affirmed convictions for resisting law enforcement
where the defendant pulled away from police officers and refused to place his
hands behind his back, Lopez v. State, 926 N.E.2d 1090, 1093-94 (Ind. Ct. App.
2010), trans. denied; where a defendant was flailing, jerking, or squirming her
body while an officer was trying to handcuff her, J.S. v. State, 843 N.E.2d 1013,
1017 (Ind. Ct. App. 2006), trans. denied; and where a defendant “stiffened up”
when police attempted to place him in a police vehicle, Johnson v. State, 833
N.E.2d 516, 518-19 (Ind. Ct. App. 2005).
Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016 Page 5 of 6 [9] McGaughey asserts that his actions were “merely difficult,” rather than
forceful. Appellant’s Br. at 8. However, this argument amounts to a request to
reweigh the evidence, which we will not do. Here, the State presented evidence
in the form of testimony by Deputy Cochran, Officer Wallace, and Sergeant
Neace that McGaughey pulled away and stiffened his arms when they
attempted to handcuff him. Further, the evidence shows the arrest required at
least two officers to restrain McGaughey by pinning him against the vehicle,
place him in handcuffs, and complete a pat-down search. In addition, after
being placed in the police vehicle, McGaughey violently slammed his feet
against the dashboard and broke police equipment, forcing the officers to yank
him from the vehicle and tase him to subdue his resistance. These facts are
sufficient for a reasonable jury to find that McGaughey forcibly resisted law
enforcement.
Conclusion [10] There was sufficient evidence to support McGaughey’s conviction, and we
therefore affirm.
[11] Affirmed.
Mathias, J., and Brown, J., concur.
Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016 Page 6 of 6