MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 26 2018, 9:09 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chris M. Teagle Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Matthew Koressel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Valenti, December 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1416 v. Appeal from the Blackford Superior Court State of Indiana, The Honorable John N. Barry, Appellee-Plaintiff. Judge Trial Court Cause No. 05D01-1802-CM-54
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 1 of 7 Case Summary [1] Brian Valenti (“Valenti”) appeals his conviction for resisting law enforcement,
as a Class A misdemeanor,1 following a jury trial. He raises one issue for our
review which we restate as whether the State presented sufficient evidence to
support his conviction.
[2] We affirm.
Facts and Procedural History [3] The evidence supporting the judgment is as follows. Shortly after three o’clock
in the morning on February 21, 2018, Blackford County Sheriff’s Department
Deputy Tyler Ingram (“Dep. Ingram”) was getting fuel at a service station in
Hartford City, Indiana, when he observed a gray Lexus that appeared not to
have any headlights on drive through the station’s parking lot at a fairly high
rate of speed. Ingram entered his marked police car, activated his red and blue
lights and siren, and followed the Lexus in order to conduct a traffic stop. The
Lexus continued driving for approximately three blocks and then stopped in
front of a residence that was later proved to be Valenti’s home.
[4] Dep. Ingram exited his vehicle, approached the Lexus, and recognized the
driver as Valenti. Dep. Ingram was wearing a body camera that recorded his
1 Ind. Code § 35-44.1-3-1(a)(1).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 2 of 7 entire encounter with Valenti.2 Dep. Ingram observed that Valenti’s eyes were
red and glossy and that he seemed “tense” and “agitated.” Tr. at 31. Dep.
Ingram instructed Valenti to place his hands on his steering wheel, and Valenti
did so. Dep. Ingram informed Valenti that he wanted to perform some sobriety
tests on Valenti. Because it was dark and raining, Dep. Ingram requested that
Valenti accompany him to the police station to do the sobriety tests, but Valenti
refused that request. Dep. Ingram ordered Valenti out of his vehicle and
Valenti complied.
[5] Dep. Ingram conducted the horizontal gaze nystagmus test on Valenti, and
Valenti failed that test. During the testing, Valenti was “vocally displeased”
with the situation and was using profanity and “making demands” in a tone of
voice that was “louder than necessary.” Id. at 34. After the first test, Valenti
refused Dep. Ingram’s request to conduct additional sobriety tests; instead,
Valenti “[d]emanded a blood draw, to go to the hospital, a breathalyzer test,
and a supervisor.” Id. at 35.
[6] After Hartford City Police Department officer Lucas Phillips (“Officer
Phillips”) and one other police officer arrived at the scene to assist, Dep.
Ingram gave Valenti “several commands” to put his hands behind his back so
that the police could handcuff him. Id. at 57. Valenti did not comply with
2 Although the video recording from the body camera is in evidence and in the record as State’s Exhibit 1, it only recorded Valenti from the neck up. And, because it was dark and raining, the recording’s visibility is poor.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 3 of 7 those commands; rather, he continued to be “verbally aggressive.” Id. at 36.
Therefore, Dep. Ingram restrained Valenti’s right arm and Officer Phillips
restrained Valenti’s left arm in order to put Valenti’s hands behind his back.
When Dep. Ingram put his hands on Valenti, he felt Valenti’s body tense and
felt Valenti “pulling away from [him] as if to escape [his] grasp.” Id. at 45.
Officer Phillips also felt Valenti tense when he grabbed his left arm. Valenti
was “actively struggling,”3 and Officer Phillips had to “forcibly put [Valenti’s
left hand] behind his back in an effort to apply handcuffs.” Id. at 57. When the
officers were unable to apply handcuffs while Valenti was standing, they
lowered Valenti to the ground and, with “additional effort,” Id. at 58, and
“struggle,” Id. at 45, placed Valenti in handcuffs.
[7] On February 22, 2018, the State charged Valenti with resisting law
enforcement, as a Class A misdemeanor; disorderly conduct, as a Class B
misdemeanor;4 and operating a vehicle while intoxicated, as a Class C
misdemeanor.5 Valenti’s jury trial took place on May 16. Dep. Ingram and
Officer Phillips testified at the trial, as did Valenti’s neighbor, Gary Glancy
(“Glancy”), who witnessed the events surrounding Valenti’s arrest on February
21. The jury found Valenti guilty of resisting law enforcement as charged and
3 The audio recording from the body camera reflects the sounds of struggle at that point, but the video does not provide a clear view of Valenti and the officers. State’s Ex. 1. 4 I.C. § 35-45-1-3(a)(1). 5 I.C. § 9-30-5-2(a).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 4 of 7 not guilty of the other charges against him. On June 14, the trial court entered
its judgment of conviction and imposed a three hundred sixty-five day sentence
with four days of credit time. This appeal ensued.
Discussion and Decision [8] Valenti contends that the evidence is insufficient to support his resisting law
enforcement conviction. Our standard of review in a sufficiency of the evidence
claim is clear:
[W]e examine only the probative evidence and reasonable inferences that support the [judgment]. We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.
Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (citations and quotation marks
omitted).
[9] Valenti argues that there was insufficient evidence that he forcibly resisted law
enforcement. Under Indiana Code Section 35-44.1-3-1(a)(1), “[t]he basic
offense of resisting law enforcement has five essential elements: that [the
defendant] (1) knowingly or intentionally (2) forcibly (3) resisted, obstructed, or
interfered with (4) a law enforcement officer, (5) while the officer was lawfully
engaged in the execution of the officer’s duties.” K.W. v. State, 984 N.E.2d 610,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 5 of 7 612 (Ind. 2013).
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 26 2018, 9:09 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chris M. Teagle Curtis T. Hill, Jr. Muncie, Indiana Attorney General of Indiana Matthew Koressel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brian Valenti, December 26, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1416 v. Appeal from the Blackford Superior Court State of Indiana, The Honorable John N. Barry, Appellee-Plaintiff. Judge Trial Court Cause No. 05D01-1802-CM-54
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 1 of 7 Case Summary [1] Brian Valenti (“Valenti”) appeals his conviction for resisting law enforcement,
as a Class A misdemeanor,1 following a jury trial. He raises one issue for our
review which we restate as whether the State presented sufficient evidence to
support his conviction.
[2] We affirm.
Facts and Procedural History [3] The evidence supporting the judgment is as follows. Shortly after three o’clock
in the morning on February 21, 2018, Blackford County Sheriff’s Department
Deputy Tyler Ingram (“Dep. Ingram”) was getting fuel at a service station in
Hartford City, Indiana, when he observed a gray Lexus that appeared not to
have any headlights on drive through the station’s parking lot at a fairly high
rate of speed. Ingram entered his marked police car, activated his red and blue
lights and siren, and followed the Lexus in order to conduct a traffic stop. The
Lexus continued driving for approximately three blocks and then stopped in
front of a residence that was later proved to be Valenti’s home.
[4] Dep. Ingram exited his vehicle, approached the Lexus, and recognized the
driver as Valenti. Dep. Ingram was wearing a body camera that recorded his
1 Ind. Code § 35-44.1-3-1(a)(1).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 2 of 7 entire encounter with Valenti.2 Dep. Ingram observed that Valenti’s eyes were
red and glossy and that he seemed “tense” and “agitated.” Tr. at 31. Dep.
Ingram instructed Valenti to place his hands on his steering wheel, and Valenti
did so. Dep. Ingram informed Valenti that he wanted to perform some sobriety
tests on Valenti. Because it was dark and raining, Dep. Ingram requested that
Valenti accompany him to the police station to do the sobriety tests, but Valenti
refused that request. Dep. Ingram ordered Valenti out of his vehicle and
Valenti complied.
[5] Dep. Ingram conducted the horizontal gaze nystagmus test on Valenti, and
Valenti failed that test. During the testing, Valenti was “vocally displeased”
with the situation and was using profanity and “making demands” in a tone of
voice that was “louder than necessary.” Id. at 34. After the first test, Valenti
refused Dep. Ingram’s request to conduct additional sobriety tests; instead,
Valenti “[d]emanded a blood draw, to go to the hospital, a breathalyzer test,
and a supervisor.” Id. at 35.
[6] After Hartford City Police Department officer Lucas Phillips (“Officer
Phillips”) and one other police officer arrived at the scene to assist, Dep.
Ingram gave Valenti “several commands” to put his hands behind his back so
that the police could handcuff him. Id. at 57. Valenti did not comply with
2 Although the video recording from the body camera is in evidence and in the record as State’s Exhibit 1, it only recorded Valenti from the neck up. And, because it was dark and raining, the recording’s visibility is poor.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 3 of 7 those commands; rather, he continued to be “verbally aggressive.” Id. at 36.
Therefore, Dep. Ingram restrained Valenti’s right arm and Officer Phillips
restrained Valenti’s left arm in order to put Valenti’s hands behind his back.
When Dep. Ingram put his hands on Valenti, he felt Valenti’s body tense and
felt Valenti “pulling away from [him] as if to escape [his] grasp.” Id. at 45.
Officer Phillips also felt Valenti tense when he grabbed his left arm. Valenti
was “actively struggling,”3 and Officer Phillips had to “forcibly put [Valenti’s
left hand] behind his back in an effort to apply handcuffs.” Id. at 57. When the
officers were unable to apply handcuffs while Valenti was standing, they
lowered Valenti to the ground and, with “additional effort,” Id. at 58, and
“struggle,” Id. at 45, placed Valenti in handcuffs.
[7] On February 22, 2018, the State charged Valenti with resisting law
enforcement, as a Class A misdemeanor; disorderly conduct, as a Class B
misdemeanor;4 and operating a vehicle while intoxicated, as a Class C
misdemeanor.5 Valenti’s jury trial took place on May 16. Dep. Ingram and
Officer Phillips testified at the trial, as did Valenti’s neighbor, Gary Glancy
(“Glancy”), who witnessed the events surrounding Valenti’s arrest on February
21. The jury found Valenti guilty of resisting law enforcement as charged and
3 The audio recording from the body camera reflects the sounds of struggle at that point, but the video does not provide a clear view of Valenti and the officers. State’s Ex. 1. 4 I.C. § 35-45-1-3(a)(1). 5 I.C. § 9-30-5-2(a).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 4 of 7 not guilty of the other charges against him. On June 14, the trial court entered
its judgment of conviction and imposed a three hundred sixty-five day sentence
with four days of credit time. This appeal ensued.
Discussion and Decision [8] Valenti contends that the evidence is insufficient to support his resisting law
enforcement conviction. Our standard of review in a sufficiency of the evidence
claim is clear:
[W]e examine only the probative evidence and reasonable inferences that support the [judgment]. We do not assess witness credibility, nor do we reweigh the evidence to determine if it was sufficient to support a conviction. Under our appellate system, those roles are reserved for the finder of fact. Instead, we consider only the evidence most favorable to the trial court ruling and affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.
Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (citations and quotation marks
omitted).
[9] Valenti argues that there was insufficient evidence that he forcibly resisted law
enforcement. Under Indiana Code Section 35-44.1-3-1(a)(1), “[t]he basic
offense of resisting law enforcement has five essential elements: that [the
defendant] (1) knowingly or intentionally (2) forcibly (3) resisted, obstructed, or
interfered with (4) a law enforcement officer, (5) while the officer was lawfully
engaged in the execution of the officer’s duties.” K.W. v. State, 984 N.E.2d 610,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 5 of 7 612 (Ind. 2013). The State maintains that Valenti resisted law enforcement by
struggling against the officers when they attempted to put his hands behind his
back and place him in handcuffs. Valenti counters that there is insufficient
evidence that he resisted being handcuffed, much less that he “forcibly”
resisted, as required under the statute. Appellant’s Br. at 12-13.
[10] One forcibly resists 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). “[M]erely walking away from a law-
enforcement encounter, leaning away from an officer’s grasp, or twisting and
turning a little bit against an officer’s actions do not establish ‘forcible’
resistance.” K.W., 984 N.E.2d at 612 (quotations and citations omitted).
However, as our Supreme Court has pointed out, there is no bright-line test for
whether a defendant acts “forcibly”; rather, such determinations must be made
on a case-by-case basis, with guidance from our case law. Walker v. State, 998
N.E.2d 724, 728 (Ind. 2013). Thus, Indiana courts have held that “showing
strength and a threat of violence” is forcible resistance, Walker, 998 N.E.2d at
727-28; that “aggressively pulling away” from an officer trying to arrest is
forcible resistance, Glenn v. State, 999 N.E.2d 859, 862 (Ind. Ct. App. 2013);
that “starting to pull away” from an officer and keeping one’s arms underneath
oneself to prevent handcuffing are forcible resistance, Lopez v. State, 926 N.E.2d
1090, 1093-94 (Ind. Ct. App. 2010), trans. denied; and that stiffening one’s arms
to avoid handcuffing is forcible resistance, Graham v. State, 903 N.E.2d 963,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 6 of 7 965-66 (Ind. 2009) (citing Johnson v. State, 833 N.E.2d 516, 517 (Ind. Ct. App.
2005)).
[11] Here, both Officers Ingram and Phillips testified that, when they attempted to
put Valenti’s arms behind his back, Valenti tensed his arms, pulled away from
them, and “actively struggle[ed]” against them. Tr. at 57. The officers testified
that, because of Valenti’s struggling, they were unable to handcuff him while he
was standing; therefore, they were forced to lower him to the ground. Yet, they
testified, even while on the ground, Valenti continued to “struggle” against
being handcuffed, requiring them to apply “additional effort” to restrain him.
Id. at 45, 58. That is sufficient evidence that Valenti forcibly resisted law
enforcement. Graham, 903 N.E.2d at 965-66; Glenn, 999 N.E.2d at 862; Lopez,
926 N.E.2d at 1093-94. Valenti’s claims to the contrary6 are merely requests
that we reweigh the evidence, which we cannot do. Lock, 971 N.E.2d at 74.
[12] The State presented sufficient evidence to support Valenti’s conviction for
resisting law enforcement.
[13] Affirmed.
Bradford, J., and Brown, J., concur.
6 Valenti points to Glancy’s testimony that he did not witness Valenti struggling and that he believed the officers’ actions were aggressive because he did not hear them ask Valenti to “put his hands up” or “turn around” before they forced him to the ground. Tr. at 71. However, clearly the trial court found the officers’ contradictory testimony more credible, and we will not second-guess the trial court’s credibility determinations on appeal. Lock, 971 N.E.2d at 74.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018 Page 7 of 7