MEMORANDUM DECISION Feb 13 2015, 9:04 am Pursuant to Ind. Appellate Rule 65(D), this 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 Mark A. Bates Gregory F. Zoeller Office of the Lake County Public Defender Attorney General of Indiana Crown Point, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael James Beasley, February 13, 2015
Appellant-Defendant, Court of Appeals Cause No. 45A03-1407-CR-251 v. Appeal from the Lake Superior Court, The Honorable Jamise Perkins, Judge Pro Tempore State of Indiana, Cause No. 45G03-1209-FC-103 Appellee-Plaintiff
Najam, Judge.
Statement of the Case [1] Michael James Beasley appeals his conviction for resisting law enforcement, as
a Class A misdemeanor, following a jury trial. Beasley raises a single issue for
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-251 | February 13, 2015 Page 1 of 6 our review, namely, whether the State presented sufficient evidence to support
his conviction. We affirm.
Facts and Procedural History [2] On August 31, 2012, Hammond Police Department Detective George Gavrilos
observed Beasley in the passenger seat of a vehicle parked near the main
entrance to the Hammond Police Department. Detective Gavrilos knew that
there was a warrant out for Beasley’s arrest, and Detective Gavrilos approached
Beasley and asked him to exit the vehicle. Beasley did so, but as Detective
Gavrilos attempted to place Beasley in handcuffs Beasley “swung his left arm
and made contact with [Detective Gavrilos] just below [the] left breast area.”
Tr. at 98. After the contact, Detective Gavrilos “reacted” and “twisted” his
body, and “at that point [he] felt and heard a loud pop in [his] leg, and [he] fell
to the ground.” Id. at 99. Beasley then attempted to flee, but other, nearby
officers apprehended him. Detective Gavrilos had to wear a knee brace and
attend physical therapy for the ensuing six weeks.
[3] On September 2, the State charged Beasley with, among other things, resisting
law enforcement, as a Class A misdemeanor. The jury found him guilty of that
charge and the trial court sentenced him accordingly. This appeal ensued.
Discussion and Decision [4] Beasley asserts that the State failed to present sufficient evidence to support his
conviction for resisting law enforcement, as a Class A misdemeanor. When
reviewing a claim of sufficiency of the evidence, we do not reweigh the
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-251 | February 13, 2015 Page 2 of 6 evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d
1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the
judgment and the reasonable inferences that may be drawn from that evidence
to determine whether a reasonable trier of fact could conclude the defendant
was guilty beyond a reasonable doubt. Id. If there is substantial evidence of
probative value to support the conviction, it will not be set aside. Id.
[5] Pursuant to Indiana Code Section 35-44.1-3-1, to prove that Beasley committed
resisting law enforcement, as a Class A misdemeanor, the State was required to
show that, knowingly or intentionally, Beasley forcibly resisted, obstructed, or
interfered with a law enforcement officer while the officer was lawfully engaged
in the execution of the officer’s duties. On appeal, Beasley challenges whether
the State demonstrated that he had “forcibly” resisted Detective Gavrilos and
whether Beasley knowingly or intentionally did so. The State met its burden.
[6] As our supreme court has explained:
In Spangler v. State, we held that the word “forcibly” is an essential element of the crime and modifies the entire string of verbs—resists, obstructs, or interferes—such that the State must show forcible resistance, forcible obstruction, or forcible interference. 607 N.E.2d 720, 722-23 (Ind. 1993). We also held that the word meant “something more than mere action.” Id. at 724. “[O]ne ‘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. at 723. “[A]ny action to resist must be done with force in order to violate this statute. It is error as a matter of law to conclude that ‘forcibly resists’ includes all actions that are not passive.” Id. at 724.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-251 | February 13, 2015 Page 3 of 6 But even so, “the statute does not demand complete passivity.” K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013). In Graham v. State, we clarified that “[t]he force involved need not rise to the level of mayhem.” 903 N.E.2d 963, 965 (Ind. 2009). In fact, even a very “modest level of resistance” might support the offense. Id. at 966 (“even ‘stiffening’ of one’s arms when an officer grabs hold to position them for cuffing would suffice”).
Furthermore, we have never held that actual physical contact between the defendant and the officer has been required to sustain a conviction for resisting law enforcement. In fact, from the beginning we have said just the opposite. See Spangler, 607 N.E.2d at 724 (noting “no movement or threatening gesture made in the direction of the official” (emphasis added)); id. (defining “forcible” in part by comparison to statutory definition of “forcible felony” which included felonies involving “the use or threat of force against a human being” and those “in which there is imminent danger of bodily injury to a human being” (emphasis added) (citing Ind. Code § 35-41-1-11)); see also Price v. State, 622 N.E.2d 954, 963 n.14 (Ind. 1993) (citing Spangler for proposition that “an individual who directs strength, power or violence towards police officers or who makes a threatening gesture or movement in their direction,” may be charged with resisting law enforcement (emphasis added)).
***
So in summary, not every passive—or even active—response to a police officer constitutes the offense of resisting law enforcement, even when that response compels the officer to use force. Instead, 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 or her duties. But this should not be understood as requiring an overwhelming or extreme level of force. The element may be
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-251 | February 13, 2015 Page 4 of 6 satisfied with even a modest exertion of strength, power, or violence. Moreover, the statute does not require commission of a battery on the officer or actual physical contact—whether initiated by the officer or the defendant. It also contemplates punishment for the active threat of such strength, power, or violence when that threat impedes the officer’s ability to lawfully execute his or her duties.
Walker v. State, 998 N.E.2d 724, 726-27 (Ind. 2013).
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MEMORANDUM DECISION Feb 13 2015, 9:04 am Pursuant to Ind. Appellate Rule 65(D), this 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 Mark A. Bates Gregory F. Zoeller Office of the Lake County Public Defender Attorney General of Indiana Crown Point, Indiana Richard C. Webster Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Michael James Beasley, February 13, 2015
Appellant-Defendant, Court of Appeals Cause No. 45A03-1407-CR-251 v. Appeal from the Lake Superior Court, The Honorable Jamise Perkins, Judge Pro Tempore State of Indiana, Cause No. 45G03-1209-FC-103 Appellee-Plaintiff
Najam, Judge.
Statement of the Case [1] Michael James Beasley appeals his conviction for resisting law enforcement, as
a Class A misdemeanor, following a jury trial. Beasley raises a single issue for
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-251 | February 13, 2015 Page 1 of 6 our review, namely, whether the State presented sufficient evidence to support
his conviction. We affirm.
Facts and Procedural History [2] On August 31, 2012, Hammond Police Department Detective George Gavrilos
observed Beasley in the passenger seat of a vehicle parked near the main
entrance to the Hammond Police Department. Detective Gavrilos knew that
there was a warrant out for Beasley’s arrest, and Detective Gavrilos approached
Beasley and asked him to exit the vehicle. Beasley did so, but as Detective
Gavrilos attempted to place Beasley in handcuffs Beasley “swung his left arm
and made contact with [Detective Gavrilos] just below [the] left breast area.”
Tr. at 98. After the contact, Detective Gavrilos “reacted” and “twisted” his
body, and “at that point [he] felt and heard a loud pop in [his] leg, and [he] fell
to the ground.” Id. at 99. Beasley then attempted to flee, but other, nearby
officers apprehended him. Detective Gavrilos had to wear a knee brace and
attend physical therapy for the ensuing six weeks.
[3] On September 2, the State charged Beasley with, among other things, resisting
law enforcement, as a Class A misdemeanor. The jury found him guilty of that
charge and the trial court sentenced him accordingly. This appeal ensued.
Discussion and Decision [4] Beasley asserts that the State failed to present sufficient evidence to support his
conviction for resisting law enforcement, as a Class A misdemeanor. When
reviewing a claim of sufficiency of the evidence, we do not reweigh the
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-251 | February 13, 2015 Page 2 of 6 evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d
1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the
judgment and the reasonable inferences that may be drawn from that evidence
to determine whether a reasonable trier of fact could conclude the defendant
was guilty beyond a reasonable doubt. Id. If there is substantial evidence of
probative value to support the conviction, it will not be set aside. Id.
[5] Pursuant to Indiana Code Section 35-44.1-3-1, to prove that Beasley committed
resisting law enforcement, as a Class A misdemeanor, the State was required to
show that, knowingly or intentionally, Beasley forcibly resisted, obstructed, or
interfered with a law enforcement officer while the officer was lawfully engaged
in the execution of the officer’s duties. On appeal, Beasley challenges whether
the State demonstrated that he had “forcibly” resisted Detective Gavrilos and
whether Beasley knowingly or intentionally did so. The State met its burden.
[6] As our supreme court has explained:
In Spangler v. State, we held that the word “forcibly” is an essential element of the crime and modifies the entire string of verbs—resists, obstructs, or interferes—such that the State must show forcible resistance, forcible obstruction, or forcible interference. 607 N.E.2d 720, 722-23 (Ind. 1993). We also held that the word meant “something more than mere action.” Id. at 724. “[O]ne ‘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. at 723. “[A]ny action to resist must be done with force in order to violate this statute. It is error as a matter of law to conclude that ‘forcibly resists’ includes all actions that are not passive.” Id. at 724.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-251 | February 13, 2015 Page 3 of 6 But even so, “the statute does not demand complete passivity.” K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013). In Graham v. State, we clarified that “[t]he force involved need not rise to the level of mayhem.” 903 N.E.2d 963, 965 (Ind. 2009). In fact, even a very “modest level of resistance” might support the offense. Id. at 966 (“even ‘stiffening’ of one’s arms when an officer grabs hold to position them for cuffing would suffice”).
Furthermore, we have never held that actual physical contact between the defendant and the officer has been required to sustain a conviction for resisting law enforcement. In fact, from the beginning we have said just the opposite. See Spangler, 607 N.E.2d at 724 (noting “no movement or threatening gesture made in the direction of the official” (emphasis added)); id. (defining “forcible” in part by comparison to statutory definition of “forcible felony” which included felonies involving “the use or threat of force against a human being” and those “in which there is imminent danger of bodily injury to a human being” (emphasis added) (citing Ind. Code § 35-41-1-11)); see also Price v. State, 622 N.E.2d 954, 963 n.14 (Ind. 1993) (citing Spangler for proposition that “an individual who directs strength, power or violence towards police officers or who makes a threatening gesture or movement in their direction,” may be charged with resisting law enforcement (emphasis added)).
***
So in summary, not every passive—or even active—response to a police officer constitutes the offense of resisting law enforcement, even when that response compels the officer to use force. Instead, 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 or her duties. But this should not be understood as requiring an overwhelming or extreme level of force. The element may be
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-251 | February 13, 2015 Page 4 of 6 satisfied with even a modest exertion of strength, power, or violence. Moreover, the statute does not require commission of a battery on the officer or actual physical contact—whether initiated by the officer or the defendant. It also contemplates punishment for the active threat of such strength, power, or violence when that threat impedes the officer’s ability to lawfully execute his or her duties.
Walker v. State, 998 N.E.2d 724, 726-27 (Ind. 2013).
[7] The State easily met its burden to show that Beasley forcibly resisted Detective
Gavrilos. Detective Gavrilos testified that Beasley struck him while the
detective was attempting to effect an arrest, and then Beasley fled (though not
far). This evidence demonstrates that Beasley used at least “a modest exertion
of strength, power, or violence.” Id. at 727. Beasley’s arguments otherwise are
merely a request for this court to reweigh the evidence, which we will not do.
[8] Beasley also asserts that, on cross-examination, Detective Gavrilos “admitted
that Beasley only ‘made a motion[]’ with his arm but he did not strike” the
detective. Appellant’s Br. at 7 (quoting Tr. at 130). This statement
mischaracterizes Detective Gavrilos’ testimony. The detective did not
“admit[]” that Beasley “did not strike” him; rather Detective Gavrilos stated
that Beasley did not “turn and face [me] and then strike [me.]” Tr. at 130. But
such aggression is not required for resisting law enforcement, as a Class A
misdemeanor. Walker, 998 N.E.2d at 726-27. Beasley’s arguments on appeal
are without merit.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-251 | February 13, 2015 Page 5 of 6 [9] In a paragraph at the end of his brief Beasley asserts that the State also failed to
show that he knowingly or intentionally resisted law enforcement. But this
argument, insofar as it is actually supported by cogent reasoning, is merely a
request for this court to reweigh the evidence, which we will not do. We affirm
Beasley’s conviction for resisting law enforcement, as a Class A misdemeanor.
[10] Affirmed.
[11] Mathias, J., and Bradford, J., concur.
Court of Appeals of Indiana | Memorandum Decision 45A03-1407-CR-251 | February 13, 2015 Page 6 of 6