Melissa M. Serrano v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 27, 2018
• Docket: 42A04-1709-CR-2039
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Feb 27 2018, 10:37 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Curtis T. Hill, Jr. Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Melissa M. Serrano, February 27, 2018 Appellant-Defendant, Court of Appeals Case No. 42A04-1709-CR-2039 v. Appeal from the Knox Superior Court State of Indiana, The Honorable Ryan D. Appellee-Plaintiff. Johanningsmeier, Judge Trial Court Cause No. 42D02-1705-CM-400

Bailey, Judge.

Court of Appeals of Indiana | Memorandum Decision 42A04-1709-CR-2039 | February 27, 2018 Page 1 of 5 Case Summary [1] Melissa Serrano (“Serrano”) appeals her conviction for Resisting Law

Enforcement, as a Class A misdemeanor,1 presenting the sole issue of whether

there is sufficient evidence of force to support the conviction. We reverse.

Facts and Procedural History [2] On May 5, 2017, Vincennes Police Officer Shane Selby (“Officer Selby”) and

other officers responded to a 9-1-1 call placed either by Serrano or her friend.

During the investigation, Officer Selby learned that there was an active warrant

for Serrano’s arrest for false informing.

[3] At the time that the warrant was discovered, Serrano was standing in the

doorway of her apartment. Officer Jonathan Alexander (“Officer Alexander”)

asked Serrano to come outside and speak with the officers; in response, Serrano

attempted to close the door and retreat into her apartment. Officer Alexander

“grabbed a hold of the door” and both officers “grabbed a hold of [Serrano] and

was [sic] bringing her out and she started to struggle.” (Tr. at 7.) The officers

placed Serrano in handcuffs, with her “yelling at” them. (Tr. at 7.)

[4] Serrano was charged with resisting law enforcement and was convicted of that

charge in a bench trial conducted on August 7, 2017. Serrano was sentenced to

1 Ind. Code § 35-44.1-3-1(a)(1).

Court of Appeals of Indiana | Memorandum Decision 42A04-1709-CR-2039 | February 27, 2018 Page 2 of 5 a one-year term of imprisonment, all suspended to formal probation with work

release. Serrano now appeals.

Discussion and Decision [5] In reviewing a sufficiency of the evidence claim, we do not reweigh the

evidence or assess the credibility of witnesses. K.W. v. State, 984 N.E.2d 610,

612 (Ind. 2013). We look to the evidence and reasonable inferences drawn

therefrom that support the judgment, and affirm if there is probative evidence

from which a reasonable factfinder could have found the defendant guilty

beyond a reasonable doubt. Id. We will reverse if there is no evidence or

reasonable inference to support any one of the necessary elements of the

charged offense. Id.

[6] The basic offense of resisting law enforcement has five essential elements. See

id. Pursuant to Indiana Code Section 35-44.1-3-1, a defendant has committed

resisting law enforcement when he or she (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. Id. One “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.” Id. (citing Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993)).

The level of force need not rise to the level of mayhem, but the statute does not

demand complete passivity. Id. Merely walking away from a law-enforcement

encounter, leaning away from an officer’s grasp, or twisting and turning a little

Court of Appeals of Indiana | Memorandum Decision 42A04-1709-CR-2039 | February 27, 2018 Page 3 of 5 bit against an officer’s actions are examples of conduct that do not amount to

“forcible” resistance. Id.

[7] The State presented a sole witness, Officer Selby, who testified that Officer

Alexander grabbed Serrano by one arm, and he took the other. Officer Selby

further testified that Serrano “started to struggle,” Tr. at 7, but on cross-

examination, he clarified that Serrano was “not violent”:

Question: Did she push Officer Alexander that you saw?

Officer Selby: No.

Question: Did she strike either one of you?

Question: Did she kick either one of you?

Question: Did she become overly violent with either of you?

Officer Selby: She was resisting. She was –

Question: I didn’t ask if she was resisting. That’s for the Court to decide, was she overly violent with you?

Officer Selby: Not violent. No.

(Tr. at 14.)

Court of Appeals of Indiana | Memorandum Decision 42A04-1709-CR-2039 | February 27, 2018 Page 4 of 5 [8] The State directs our attention to the testimony that Serrano “yanked her arms

away” and that something “like a tug of war” took place. (Tr. at 16.) This

testimony indicates that there was movement back and forth with exertion by

both the officers and Serrano. However, we are mindful that Officer Selby

specifically denied that Serrano’s conduct was violent. Without evidence of the

material element of “forcible” resistance, as defined in K.W. and Spangler,

Serrano’s conviction for resisting law enforcement cannot be sustained.

[9] Reversed.

Kirsch, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 42A04-1709-CR-2039 | February 27, 2018 Page 5 of 5