Dennis William Smith v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 14, 2015
• Docket: 49A02-1502-CR-83
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Aug 14 2015, 5:47 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Gregory F. Zoeller Oldenburg, Indiana Attorney General of Indiana

Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Dennis William Smith, August 14, 2015

Appellant-Defendant, Court of Appeals Case No. 49A02-1502-CR-83 v. Appeal from the Marion Superior Court

State of Indiana, The Honorable Christina R. Klineman, Judge Appellee-Plaintiff. Cause No. 49G17-1410-F6-48958

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-83| August 14, 2015 Page 1 of 8 [1] Dennis William Smith appeals his conviction for resisting law enforcement

causing bodily injury as a level 6 felony. Smith raises one issue which we revise

and restate as whether the evidence is sufficient to sustain his conviction. We

affirm.

Facts and Procedural History

[2] On October 24, 2014, Indianapolis Metropolitan Police Officers Mark Decker

and Chris Marcum were dispatched to a residence and were met at the door by

Latonya Williams. The officers walked up the stairs to a bedroom where they

observed Smith and Teiyonna Jenkins sitting on the bed. Officer Decker asked

Smith for his name, and Smith identified himself. Officer Decker contacted his

control operator and confirmed there was a no contact order prohibiting Smith

from having contact with Williams or Jenkins.

[3] Officer Decker ordered Smith to stand up to be placed under arrest for invasion

of privacy. Smith refused, and the officers grabbed him by the arms and pulled

him up. After about “thirty seconds of manual manipulation with the elbow,”

the officers were able to place Smith’s hands behind his back and handcuff him.

Transcript at 24. Smith “then dropped,” and the officers picked him up and

carried him through the hallway to the stairs. Id. At the top of the stairs, Smith

wrapped one leg around Officer Marcum’s leg and his other leg around Officer

Marcum’s waist, and the officers pried him off of Officer Marcum and

attempted to carry him down the stairs by the arms. Smith then reached his leg

out and wrapped it around the top spindle of the banister. The officers called

for a third officer, and Officer Kenny Greer arrived to assist. One of the officers Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-83| August 14, 2015 Page 2 of 8 grabbed the upper portion of Smith’s body and each of the other two officers

grabbed one of Smith’s legs, and they were able to extricate him away from the

banister area. The officers asked Smith several times to walk down the stairs

and he refused. Officer Decker grabbed one of Smith’s legs, the other officers

had his arms, and they started to carry Smith down the stairs. Smith “threw his

leg through another spindle,” at that point Officer Decker “had to pull Smith’s

leg out from the spindle,” and in doing so Officer Decker “jerked [his] knee.”

Id. at 26. The officers were able to remove Smith from the spindle on the stairs,

take him down to the living room, and place him on his stomach and place him

in leg shackles.

[4] The State charged Smith with resisting law enforcement as a level 6 felony and

two counts of invasion of privacy as class A misdemeanors. The State

presented the testimony of Officer Decker and Officer Marcum at Smith’s

bench trial. When asked what happened when the officers were carrying Smith

down the stairs, Officer Decker testified: “He threw his leg through another

spindle, and at that point, uh, I had to pull his leg out from the spindle, and I

uh, jerked m[y] knee.” Id. Officer Decker indicated he experienced pain and

that he suffered swelling and that “it took about a week for the swelling to go

down.” Id. at 27. On cross-examination, Officer Decker indicated that while

the officers were carrying Smith down the stairs he again placed his legs in

between some spindles on the staircase. When asked “it took some effort to get

his leg out of there,” Officer Decker responded affirmatively, and when asked

“[a]nd you were the officer who tried to pull the leg out, is that right,” Officer

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-83| August 14, 2015 Page 3 of 8 Decker answered “[t]hat’s correct.” Id. at 30. When asked “[y]ou said that

when you pulled his leg out, you jerked your knee,” Officer Decker replied,

“[y]eah, my right knee.” Id. When asked “[t]here’s no point at which Mr.

Smith wrapped his legs around you,” Officer Decker stated “[n]o.” Id. at 30-31.

[5] After the State rested, Smith moved to dismiss the charges under Ind. Trial

Rule 41(B). Defense counsel argued that there was “no causal link between

what Mr. Smith is doing and the injury” to Officer Decker and that “there

would have to be an assumption made that [] it was Mr. Smith inflicting that

jerk on Officer Decker’s own knee.” Id. at 41. Defense counsel argued Officer

Decker “jerked his own knee in the process of carrying [Smith] down stairs, and

pulling the leg out from between the spindles.” Id. at 42-43. Defense counsel

also argued in part that the State failed to provide evidence of the people

identified in the no contact order. The prosecutor argued that, “but for

[Smith’s] actions, Officer Decker wouldn’t have twerked his knee” and that

Officer Decker had to physically remove Smith from the spindle to take him

down the steps. Id. at 43. The court denied Smith’s motion as to the charge of

resisting law enforcement and granted the motion as to the invasion of privacy

charges on the basis the State could not prove that Smith was aware of the no

contact order. The court found Smith guilty of resisting law enforcement as a

level 6 felony and sentenced him to 270 days to be served consecutive to a

sentence under another cause.

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-83| August 14, 2015 Page 4 of 8 Discussion

[6] The issue is whether the evidence is sufficient to sustain Smith’s conviction for

resisting law enforcement as a level 6 felony. When reviewing the sufficiency of

the evidence to support a conviction, we must consider only the probative

evidence and reasonable inferences supporting the verdict. Drane v. State, 867

N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh

the evidence. Id. We consider conflicting evidence most favorably to the trial

court’s ruling. Id. We affirm the conviction unless “no reasonable fact-finder

could find the elements of the crime proven beyond a reasonable doubt.” Id.

(quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary

that the evidence overcome every reasonable hypothesis of innocence. Id. at

147. The evidence is sufficient if an inference may reasonably be drawn from it

to support the verdict. Id.

[7] Ind. Code § 35-44.1-3-1(a) provides in part that “[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 the officer’s duties . . . commits resisting law enforcement, a

Class A misdemeanor. . . .” Ind. Code § 35-44.1-3-1(b) provides that the

offense is a level 6 felony if “while committing any offense described in

subsection (a), the person draws or uses a deadly weapon, inflicts bodily injury

on or otherwise causes bodily injury to another person, or operates a vehicle in

a manner that creates a substantial risk of bodily injury to another person. . . .”

“A person engages in conduct ‘intentionally’ if, when he engages in the

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-83| August 14, 2015 Page 5 of 8 conduct, it is his conscious objective to do so.” Ind. Code § 35-41-2-2(a). “A

person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is

aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b). The

State alleged that Smith “did knowingly or intentionally forcibly resist, obstruct

or interfere with Mark Decker and/or Christopher Marcum and/or Kenneth

Greer, a law enforcement officer with the Indianapolis Metropolitan Police

Department, while said officer was lawfully engaged in his duties as a law

enforcement officer; and in committing said act the defendant inflicted bodily

injury on or otherwise caused bodily injury to MARK DECKER, to-wit: pain

and/or swelling and/or bruising . . . .” Appellant's Appendix at 14.

[8] Smith does not argue that he did not forcibly resist law enforcement. Smith

contends that his conviction as a level 6 felony must be reduced to a class A

misdemeanor because the State failed to prove that he inflicted or otherwise

caused bodily injury to Officer Decker. He argues that Officer Decker testified

he jerked his knee while pulling on Smith and that at no point did Smith wrap

his legs around Officer Decker. He also argues that he took no actions toward

Officer Decker, he was a passive part of the encounter, and that examples of

inflicting bodily injury are kicking, hitting, swinging, and biting an officer,

which did not occur here. Smith requests that his conviction as a level 6 felony

be reduced to a class A misdemeanor.

[9] The State maintains that Smith’s forcible resistance required officers to take

action and, in taking that action, Officer Decker was injured. The State also

argues that Smith was not a passive participant in the struggle.

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-83| August 14, 2015 Page 6 of 8 [10] The record reveals that the State presented the testimony of Officer Decker that

he was injured during the struggle to apprehend Smith. Because Smith refused

to stand up from sitting on the bed, Officers Decker and Marcum grabbed him

by the arms, pulled him up, and after about thirty seconds handcuffed him.

Officers Decker and Marcum carried Smith through the hallway to the stairs,

and Smith first wrapped one or both of his legs around Officer Marcum and

later around the top spindle of the banister. After the officers asked Smith

several times to walk down the stairs and he refused, Officer Decker grabbed

one of Smith’s legs, the other officers had his arms, and they started to carry

Smith down the stairs. Smith then “threw his leg through another spindle.”

Transcript at 26. Officer Decker testified: “at that point, uh, I had to pull his leg

out from the spindle, and I uh, jerked m[y] knee.” Id. Officer Decker also

indicated that “it took some effort to get his leg out of there.” Id. at 30. As a

result of jerking his knee, Officer Decker experienced pain and his knee became

swollen for about a week.

[11] Based upon our review of the testimony most favorable to the conviction, we

conclude that a reasonable trier of fact could have found that Smith inflicted or

otherwise caused the bodily injury sustained by Officer Decker and that

sufficient evidence exists from which the trier of fact could find Smith guilty

beyond a reasonable doubt of resisting law enforcement as a level 6 felony. See

Whaley v. State, 843 N.E.2d 1, 10-11 (Ind. Ct. App. 2006) (holding that the

evidence was sufficient to sustain the defendant’s convictions for two counts of

resisting law enforcement as class D felonies where the defendant argued that

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-83| August 14, 2015 Page 7 of 8 the officers inflicted the injuries upon themselves in attempting to handcuff

him), trans. denied.1

Conclusion

[12] For the foregoing reasons, we affirm Smith’s conviction for resisting law

enforcement as a level 6 felony.

[13] Affirmed.

Friedlander, J., and Riley, J., concur.

1 Smith cites Smith v. State, 21 N.E.3d 121 (Ind. Ct. App. 2014), in support of his argument. In Smith, the police officer pulled the defendant’s arm and took her to the ground, and as a result the officer suffered some scrapes on one of his knuckles and his fingertip area from being on the pavement. 21 N.E.3d 121, 123. This court held that the defendant did not inflict an injury on the officer or cause the officer’s injury. Id. at 125. We noted that we “agree[d] with Smith that she was ‘a passive part of the encounter’ and ‘took no actions toward’ him.” Id. We further stated that, “[a]s we do not believe a person who is thrown to the ground necessarily ‘inflicts’ or ‘causes’ an injury suffered by the person who throws her to the ground, we decline to follow Whaley,” that the officer “chose to halt Smith’s resistance by throwing her to the ground, and the officer was injured in so doing,” and that, “[u]nlike Whaley, Smith did not create a scenario in which [the officer’s] only option in handcuffing her was to remove her hands from a location in which he could not reach.” Id. at 125-126. Here, Officer Decker did not throw Smith to the ground. Rather, he sustained his injury during the struggle to carry Smith down the stairway when Smith took the affirmative steps of throwing his leg through the spindles of the stairway, necessitating action by Officer Decker to get Smith’s legs out of the spindles. Removing Smith’s leg from between or around the spindles was the only option in taking him into custody, and Smith was not a passive part of the encounter. We find Smith to be distinguishable.

Court of Appeals of Indiana | Memorandum Decision 49A02-1502-CR-83| August 14, 2015 Page 8 of 8