James Michael Cox v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 20, 2017
• Docket: 36A01-1604-CR-896
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Mar 20 2017, 8:52 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Brian R. Chastain Curtis T. Hill, Jr. Dillman, Chastain, Byrd, LLC Attorney General of Indiana Corydon, Indiana Ian McLean Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James Michael Cox, March 20, 2017 Appellant-Defendant, Court of Appeals Case No. 36A01-1604-CR-896 v. Appeal from the Jackson Superior Court State of Indiana, The Honorable Bruce Markel, III, Appellee-Plaintiff. Judge Trial Court Cause No. 36D01-1505-CM-498

May, Judge.

Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017 Page 1 of 10 [1] James Michael Cox appeals his convictions of Class A misdemeanor resisting

law enforcement;1 Class A misdemeanor possession of paraphernalia; 2 and

Class B misdemeanor possession of marijuana.3 Cox presents three issues for

our consideration, which we restate as:

1. Whether Cox’s convictions were barred by Indiana’s Religious Freedom Restoration Act (“RFRA”);

2. Whether the State presented sufficient evidence to prove Cox committed Class A misdemeanor resisting law enforcement; and

3. Whether the State presented sufficient evidence to prove Cox committed Class A misdemeanor possession of paraphernalia.

We affirm.

Facts and Procedural History [2] On May 15, 2015, Officer Michael Payne initiated a traffic stop on Cox’s

vehicle based on Officer Payne’s observation of a burnt-out license plate light

on Cox’s vehicle. Officer Payne noticed the vehicle displayed a license plate

from 1969 and called dispatch to check the plate number. The plate number

returned different vehicle information than the stopped vehicle.

1 Ind. Code § 35-44.1-3-1(a)(1) (2014). 2 Ind. Code § 35-48-4-8.3(a)(1) (2014). 3 Ind. Code § 35-48-4-11(a)(1) (2014).

Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017 Page 2 of 10 [3] Officer Payne approached the driver’s side of the vehicle and spoke with the

driver, later identified as Cox. Officer Payne smelled alcohol and noted open

bottles on the floorboard of Cox’s vehicle. Officer Payne asked Cox if he had

been drinking, and Cox indicated he had not. Officer Payne attempted to read

the vehicle’s Vehicle Identification Number (“VIN”). While he was trying to

read the number, Officer Payne noticed Cox reached into the right front pocket

of Cox’s pants. Officer Payne testified the movement was consistent with

someone who was trying to conceal an item or reach for a weapon.

[4] Officer Payne asked Cox to exit the vehicle, and Cox refused. Officer Payne

opened the door and pulled Cox’s left arm to remove him from the truck.

Officer Payne pulled Cox’s left arm two or three more times, but Cox was using

his right arm to “sturdy [sic] himself on the steering wheel actively resisting

[Officer Payne] getting him out of the vehicle.” (Tr. at 11.) Cox eventually

exited the vehicle, and Officer Payne handcuffed him.

[5] Officer Payne searched Cox’s pocket and found a package of rolling papers and

a hand-rolled marijuana cigarette. When asked about the marijuana cigarette,

Cox replied, “So what that’s mother fucking religious[.]” (Id. at 18.) Cox’s

vehicle was impounded and inventoried. The inventory revealed a large glass

jar with marijuana in it, a digital scale, and a package of salve which contained

Tetrahydrocannabinol (“THC”), a chemical found in marijuana. On May 29,

2015, the State charged Cox with Class A misdemeanor resisting law

enforcement, Class B misdemeanor possession of marijuana, and Class A

misdemeanor possession of paraphernalia.

Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017 Page 3 of 10 [6] Cox represented himself throughout the proceedings.4 On September 11, 2015,

Cox filed correspondence with the court asking for dismissal of the charges

against him. In it, he argued the resisting law enforcement charge violated his

“[r]ight to travel and transport his property upon the public highways in the

ordinary course of life and business.” (App. Vol. II at 48.) He also argued the

possession of marijuana charge violated his “Right to Freedoms of Thought,

Conscience, Opinion & Expression.” (Id. at 53.) The trial court denied his

motion to dismiss. On December 8, 2015, the trial court held a bench trial and

found Cox guilty as charged.5

Discussion and Decision I. Cox’s RFRA Arguments

Indiana Code Section 34-13-9-8, also referred to as RFRA, states:

(a) Except as provided in subsection (b), a governmental entity may not substantially burden a person’s exercise of religion, even if the burden results from a rule of general applicability.

4 Cox represented himself before the trial court despite the trial court’s admonishment that “[Cox] would be well advised to hire an attorney to represent him in this matter. If he cannot afford one, he should apply for pauper counsel.” (App. Vol. II at 56.) It is well-settled pro se litigants are “held to the same standard as trained counsel.” Ross v. State, 877 N.E.2d 829, 833 (Ind. Ct. App. 2007), trans. denied. 5 The trial court also granted Cox’s motion to file a belated appeal. Cox filed his appeal on April 25, 2016.

Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017 Page 4 of 10 (b) A governmental entity may substantially burden a person’s exercise of religion only if the governmental entity demonstrates that application of the burden to the person:

(1) is in furtherance of a compelling governmental interest; and

(2) is the least restrictive means of furthering that compelling governmental interest.

As part of his Summary of Argument on appeal, Cox argues:

Mr. Cox contends that as a natural born citizen, he has a constitutional right to freely hold any belief or view he chooses and that the government cannot interfere with his views or his ability to express those views.

Mr. Cox contends that as a natural born citizen, he has a constitutional right to freely move upon earth, more specifically in this case, to freely move upon a public road. The government has no authority to remove a right except through due process and its police powers.

Further, Mr. Cox relies upon any statutory law that grants him a similar right as the constitution, more specifically the Religious Freedom Restoration Act.

(Br. of Appellant at 8.) In his argument section, Cox reiterates the statements in

his Summary of Argument, makes disjointed arguments about the issues, and

cites very little case and statutory law to support his argument, and thus it is

waived. See Indiana Appellate Rule 46(A)(8)(a) (requiring each issue presented

by appellant to be “supported by cogent reasoning . . . [and] supported by

Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017 Page 5 of 10 citations to authorities [and] statutes[.]”); and see Matheney v. State, 688 N.E.2d

883, 907 (Ind. 1997) (failure to make a cogent argument supported by citation

to authority waives issue on appeal), reh’g denied, cert. denied.

[7] Waiver notwithstanding, while Cox seemingly presented some of these issues to

the trial court in a pre-trial correspondence that the trial court accepted as a

variety of motions, he did not, in that correspondence, argue these rights under

RFRA, as he does on appeal. Thus, we are unable to address the application of

RFRA to the charges against Cox on appeal. See Goodner v. State, 685 N.E.2d

1058, 1060 (Ind. 1997) (cannot raise issue for the first time on appeal); see also

Phillps v. State, 22 N.E.3d 749, 762 (Ind. Ct. App. 2014) (appellant cannot argue

one legal theory before the trial court and present a different theory on appeal),

trans. denied.

II. Sufficiency of the Evidence

[8] When reviewing sufficiency of evidence to support a conviction, we consider

only the probative evidence and reasonable inferences supporting the trial

court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-

finder’s role, and not ours, to assess witness credibility and weigh the evidence

to determine whether it is sufficient to support a conviction. Id. To preserve

this structure, when we are confronted with conflicting evidence, we consider it

most favorably to the trial court’s ruling. Id. We affirm a conviction unless no

reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt. Id. It is therefore not necessary that the evidence overcome

every reasonable hypothesis of innocence; rather, the evidence is sufficient if an Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017 Page 6 of 10 inference reasonably may be drawn from it to support the trial court’s decision.

Id. at 147.

A. Class A Misdemeanor Resisting Law Enforcement

[9] To prove Cox committed Class A misdemeanor resisting law enforcement, the

State had to prove he “forcibly resist[ed], obstruct[ed], or interfer[ed] with a law

enforcement officer . . . lawfully engaged in the execution of the officer’s

duties.” Ind. Code § 35-44.1-3-1(a)(1) (2014). Cox argues “the interaction

between him and the officer did not rise to a strong, powerful, or violent means

to impede the officer in the execution of duties.” (Br. of Appellant at 10.)

However, in so arguing, Cox misapplies Walker v. State, 998 N.E.2d 724, 727

(Ind. 2013), on which he relies for his argument. While Walker holds “a person

‘forcibly’ resists, obstructs, or interferes with a police officer when he or she uses

strong, powerful, violent means” to impede an officer in the lawful execution of

his duties, the Court also said “this should not be understood as requiring an

overwhelming or extreme level of force.” Id. Walker goes on to state even a

“modest level” of resistance might support a conviction of Class A

misdemeanor resisting law enforcement. Id.

[10] Here, Officer Payne testified:

He advised me he was not gonna [sic] get out of the vehicle. I then reached for the door handle to open the door, he had ahold of the inside of the door however; I pulled the door away from him. Umm, I then again asked him to step out of the vehicle, he advised he would not step out of the vehicle. I grabbed ahold of his left arm and pulled two or three times to get him out of the Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017 Page 7 of 10 vehicle, but he was using his right arm to sturdy [sic] himself on the steering wheel[,] actively resisting me getting him out of the vehicle.

(Tr. at 11.) Cox’s argument is an invitation for us to reweigh the evidence and

judge the credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d

at 146 (appellate court cannot reweigh evidence or judge the credibility of

witnesses). We conclude the State presented sufficient evidence to prove Cox

committed Class A misdemeanor resisting law enforcement. See Graham v.

State, 903 N.E.2d 963, 966 (Ind. 2009) (“even ‘stiffening’ of one’s arms when an

officer grabs hold to position them for cuffing would suffice”).

B. Class A Misdemeanor Possession of Paraphernalia

[11] To prove Cox committed Class A misdemeanor possession of paraphernalia,

the State had to present evidence he “knowingly or intentionally” possessed “a

raw material, an instrument, a device or other object that [he] intend[ed] to use

for: (1) introducing into [his] body a controlled substance[.]” Ind. Code § 35-

48-4-8.3(a)(1) & Ind. Code § 35-48-4-8.3(b) (2014). Cox argues “the [S]tate did

not introduce sufficient evidence to show how the rolling papers would be used

or that marijuana is defined as a controlled substance.” (Br. of Appellant at 11.)

[12] “The intent to introduce a controlled substance into one’s body may be inferred

from circumstantial evidence.” Sluder v. State, 997 N.E.2d 1178, 1181 (Ind. Ct.

App. 2013). Here, the State presented evidence Cox “start[ed] to reach into his

front right pocket of his pants,” (Tr. at 9), while Officer Payne was reading the

Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017 Page 8 of 10 VIN on his vehicle. When asked what he was doing, Cox said he was not

reaching into his pocket as Officer Payne had observed. Officer Payne then

asked Cox to exit the vehicle, and Cox resisted. When Officer Payne searched

Cox, he found “a package of rolling papers. . . [and] a hand rolled cigarette and

from [his] training [and] experience as a law enforcement officer [he knew] the

content of that cigarette to be marijuana.” (Id. at 15.) Officer Payne also

testified when he confronted Cox about the hand-rolled cigarette, Cox replied,

“that’s mother fucking religious use right there buddy.” (Id. at 18.) Taken

together, the evidence is sufficient to prove Cox intended to use the rolling

papers to introduce marijuana into his body. See Atkinson v. State, 810 N.E.2d

1190, 1194 (Ind. Ct. App. 2004) (noting the State “may have proved the offense

under [the same section of the statute under which Cox was charged] in light of

Atkinson’s admission that he used the papers to smoke marijuana”).

[13] Further, the State presented evidence from Karen Bowen, a forensic chemist

employed by the Indiana State Police, to prove the substance found in the hand

rolled cigarette contained a controlled substance. Bowen testified the hand

rolled cigarette “was found to contain Tetrahydrocannabinol THC, a controlled

substance, commonly found in marijuana, a controlled substance.” (Tr. at 82.)

Cox’s arguments are invitations for us to reweigh the evidence and judge the

credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146

(appellate court cannot reweigh evidence or judge the credibility of witnesses).

Conclusion Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017 Page 9 of 10 [14] Cox’s constitutional arguments are waived for failure to make a cogent

argument. Waiver notwithstanding, he did not present the same arguments to

the trial court and, thus, we are unable to address them. We conclude the State

presented sufficient evidence Cox committed Class A misdemeanor resisting

law enforcement and Class A misdemeanor possession of paraphernalia.

Accordingly, we affirm.

[15] Affirmed.

Najam, J., and Bailey, J., concur.

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