Justin Vance v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 12, 2019
• Docket: 18A-CR-2924
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 12 2019, 8:50 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sally Skodinski Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana

Courtney Staton Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Justin Vance, September 12, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2924 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff. Marnocha, Judge The Honorable Julie Verheye, Magistrate Trial Court Cause No. 71D02-1805-CM-1714

Friedlander, Senior Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019 Page 1 of 5 [1] Justin Vance appeals his conviction of resisting law enforcement, a Class A 1 misdemeanor, arguing that the evidence is not sufficient to support his

conviction. Concluding that the State’s evidence is sufficient, we affirm.

[2] One evening in May 2018, Officer Fredenburg of the South Bend Police

Department was dispatched to a residence. As he approached the home, he

could hear screaming and yelling coming from inside, and, when he entered the

house, he observed a table turned over, glass on the floor, blood in the kitchen,

and two males wrestling on the floor. The two men, who were eventually

identified as Vance and his son, were separated by Officer Fredenburg and

other responding officers. Vance’s son had to be further subdued because, even

after being separated from Vance, he continued to try to attack Vance and

ripped Officer Fredenburg’s microphone off his vest. As the officers were

subduing Vance’s son, family members in the home began yelling at and

assaulting the officers.

[3] Once the officers had the other family members under control, they attempted

to detain and handcuff Vance. Vance pulled away from the officers and

clenched his fists. When one officer was able to grab Vance, Vance tried to

push the officer off of him. The officers took Vance to the ground, but, once on

the ground, Vance kept his arms underneath his body, and he was screaming

and swearing at the officers. Finally, one of the officers got on Vance’s back

1 Ind. Code § 35-44.1-3-1 (2016).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019 Page 2 of 5 and pulled one of his arms from underneath him so that he could be

handcuffed. Based upon this incident, the State charged Vance with resisting

law enforcement. Following a bench trial, Vance was found guilty and

sentenced to thirty days. He now appeals this conviction.

[4] When we review a challenge to the sufficiency of the evidence, we neither

reweigh the evidence nor judge the credibility of the witnesses. Sandleben v.

State, 29 N.E.3d 126 (Ind. Ct. App. 2015), trans. denied. Instead, we consider

only the evidence most favorable to the judgment and any reasonable inferences

drawn therefrom. Id. If there is substantial evidence of probative value from

which a reasonable fact-finder could have found the defendant guilty beyond a

reasonable doubt, the judgment will not be disturbed. Labarr v. State, 36 N.E.3d

501 (Ind. Ct. App. 2015).

[5] In order to obtain a conviction for resisting law enforcement in this case, the

State must have proved beyond a reasonable doubt that (1) Vance (2)

knowingly (3) forcibly resisted (4) a law enforcement officer (5) while the officer

was lawfully engaged in the execution of his duties. See Appellant’s App. Vol.

2, p. 7; see also Ind. Code § 35-44.1-3-1(a)(1) (2016). Vance challenges the

State’s evidence as to whether he forcibly resisted, claiming that he merely “did

not put his arms out to be handcuffed once he was taken to the ground.”

Appellant’s Br. p. 8.

[6] A person forcibly resists a police officer when he uses strong, powerful, violent

means to impede an officer in the lawful execution of his duties. Walker v. State,

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019 Page 3 of 5 998 N.E.2d 724 (Ind. 2013). An overwhelming or extreme level of force is not

required; rather, forcible resistance may be satisfied with even a modest

exertion of strength, power, or violence. Id. In Lopez v. State, this Court held

that it was reasonable to infer forcible resistance where Lopez was lying on his

hands, and the officers were unable to pull his arms out from under him to

handcuff him. 926 N.E.2d 1090 (Ind. Ct. App. 2010), trans. denied.

[7] Here, Officer Fredenburg testified generally that when the officers attempted to

detain Vance, he tensed up and “had to be taken to the ground by officers.” Tr.

Vol. 2, p. 8. Officer Paturalski testified that when he arrived on the scene

Officer Fredenburg instructed him to detain Vance. Officer Paturalski reached

for Vance’s arm, and Vance “aggressively pulled away,” “was backing up,” and

his “fists were clenched.” Id. at 18. Officer Paturalski tried to strike Vance in

order to “distract him from maintaining his defensive posture.” Id. The officer

missed, but he was able to grab Vance. Vance attempted to push the officer off

of him, but Officer Fredenburg was able to step in to assist Officer Paturalski

and take Vance to the ground. Officer Knepper testified that the officers had

taken Vance to the ground but were having difficulty handcuffing him because

he “had his arms underneath his body,” and “he simply would not give his

arms up to be placed in handcuffs.” Id. at 36. Officer Knepper got onto

Vance’s back and pulled his right arm from underneath his body so that he

could be handcuffed. This evidence is sufficient to support the trial court’s

conclusion that the State proved the element of forcible resistance beyond a

reasonable doubt.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019 Page 4 of 5 [8] Judgment affirmed.

Riley, J., and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019 Page 5 of 5