MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 14 2016, 8:48 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Sammuel Willis, July 14, 2016 Appellant-Defendant, Court of Appeals Cause No. 49A05-1510-CR-1583 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda Brown, Appellee-Plaintiff. Judge Trial Court Cause No. 49G10-1503-CM-8438
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 1 of 7 Case Summary [1] Sammuel Willis appeals his conviction for Class A misdemeanor resisting law
enforcement. We affirm.
Issue [2] The issue before us is whether the evidence is sufficient to support Willis’s
conviction for Class A misdemeanor resisting law enforcement.
Facts [3] On March 10, 2015, Officer Douglas Wright from the Indianapolis
Metropolitan Police Department was dispatched to a Rally’s restaurant. Willis
worked at the Rally’s restaurant. Upon arrival at the restaurant, Officer Wright
spoke to Willis’s girlfriend, who stated that she and Willis had been arguing
because Willis refused to give her the keys to his car, which contained their
baby, so she could leave. Officer Wright went inside the restaurant and ordered
Willis to give his girlfriend the keys to the car, due to it being cold and raining
and his baby being in the car. As Willis’s girlfriend was driving away, Willis
came out of the restaurant stating that he wanted to get some property out of
the car. Officer Wright told Willis that it was too late because his girlfriend had
already left. Willis then stated, “give me my phone, I’m going to call my mom
to come pick me up and I’m going to beat her a**.” Tr. p. 8.
[4] After hearing this, Officer Wright informed Willis that he was under arrest.
Officer Wright then grabbed Willis’s right hand and placed a handcuff around
his right wrist. As Officer Wright pulled Willis towards him out of the Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 2 of 7 restaurant, Willis stated, “get your hands off of me.” Id. at 9. Willis then tried
to push Officer Wright’s hand away and attempted to pull away from Officer
Wright’s grasp. Officer Wright’s partner came to assist him. Officer Wright’s
partner grabbed Willis’s left arm, and the two officers wrestled with Willis
trying to get him down to the ground. The officers struggled with Willis for
about a minute. Once the officers placed Willis on the ground, Officer Wright
had to physically wrestle Willis’s left arm out from underneath him in order to
get the left handcuff on. During the struggle, Officer Wright suffered injuries on
his ankles and his knuckles. Officer Wright also suffered three lacerations on
his right hand and one laceration on his left hand from the handcuffs.
[5] On March 11, 2015, the State charged Willis with a Class A Misdemeanor
resisting law enforcement. The charging information alleged that, “Sammuel L
Willis did knowingly or intentionally forcibly resist, obstruct or interfere with
Douglas Michael Wright and/or [his partner], law enforcement officers with
the Indianapolis Metro Police Dept, while said officers were lawfully engaged
in their duties as law enforcement officers.” App. p. 14. A trial court later
found Willis guilty and sentenced him to 365 days with all but time served
suspended to probation. Willis now appeals.
Analysis [6] Willis’s argument is that there is insufficient evidence he “forcibly” resisted
Officer Wright. When reviewing the sufficiency of the evidence, “appellate
courts must consider only the probative evidence and reasonable inferences
supporting the verdict.” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 3 of 7 the fact finders role to assess the credibility of the witnesses and weigh the
evidence. Id. Appellate courts must consider conflicting evidence most
favorably to the trial courts ruling and affirm the conviction unless “no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Id.
[7] Indiana Code Section 35-44.1-3-1(a)(1) provides 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.”
[8] In Spangler v. State, our supreme court held that the word “forcibly” is an
essential element of the crime and modifies the entire string of verbs—resists,
obstructs, and interferes—such that the State must show forcible resistance,
forcible obstruction, or forcible interference. 607 N.E.2d 720, 722-23 (Ind.
1993). Our supreme court has also held that “forcibly” means “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
officials 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. “The force involved need not rise to the level of mayhem.” Walker v.
State, 998 N.E.2d 724, 727 (Ind. 2013). In fact, even a very “modest level of
resistance” might support the offense. Id.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 4 of 7 [9] In Walker, our supreme court further stated:
[N]ot 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 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 officers ability to lawfully execute his or her duties.
Id.
[10] In support of his argument, Willis relies on the opinions in K.W. v. State, 984
N.E. 2d 610 (Ind. 2013); Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009);
and Berberena v.
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Jul 14 2016, 8:48 am
regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Angela N. Sanchez Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Sammuel Willis, July 14, 2016 Appellant-Defendant, Court of Appeals Cause No. 49A05-1510-CR-1583 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Linda Brown, Appellee-Plaintiff. Judge Trial Court Cause No. 49G10-1503-CM-8438
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 1 of 7 Case Summary [1] Sammuel Willis appeals his conviction for Class A misdemeanor resisting law
enforcement. We affirm.
Issue [2] The issue before us is whether the evidence is sufficient to support Willis’s
conviction for Class A misdemeanor resisting law enforcement.
Facts [3] On March 10, 2015, Officer Douglas Wright from the Indianapolis
Metropolitan Police Department was dispatched to a Rally’s restaurant. Willis
worked at the Rally’s restaurant. Upon arrival at the restaurant, Officer Wright
spoke to Willis’s girlfriend, who stated that she and Willis had been arguing
because Willis refused to give her the keys to his car, which contained their
baby, so she could leave. Officer Wright went inside the restaurant and ordered
Willis to give his girlfriend the keys to the car, due to it being cold and raining
and his baby being in the car. As Willis’s girlfriend was driving away, Willis
came out of the restaurant stating that he wanted to get some property out of
the car. Officer Wright told Willis that it was too late because his girlfriend had
already left. Willis then stated, “give me my phone, I’m going to call my mom
to come pick me up and I’m going to beat her a**.” Tr. p. 8.
[4] After hearing this, Officer Wright informed Willis that he was under arrest.
Officer Wright then grabbed Willis’s right hand and placed a handcuff around
his right wrist. As Officer Wright pulled Willis towards him out of the Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 2 of 7 restaurant, Willis stated, “get your hands off of me.” Id. at 9. Willis then tried
to push Officer Wright’s hand away and attempted to pull away from Officer
Wright’s grasp. Officer Wright’s partner came to assist him. Officer Wright’s
partner grabbed Willis’s left arm, and the two officers wrestled with Willis
trying to get him down to the ground. The officers struggled with Willis for
about a minute. Once the officers placed Willis on the ground, Officer Wright
had to physically wrestle Willis’s left arm out from underneath him in order to
get the left handcuff on. During the struggle, Officer Wright suffered injuries on
his ankles and his knuckles. Officer Wright also suffered three lacerations on
his right hand and one laceration on his left hand from the handcuffs.
[5] On March 11, 2015, the State charged Willis with a Class A Misdemeanor
resisting law enforcement. The charging information alleged that, “Sammuel L
Willis did knowingly or intentionally forcibly resist, obstruct or interfere with
Douglas Michael Wright and/or [his partner], law enforcement officers with
the Indianapolis Metro Police Dept, while said officers were lawfully engaged
in their duties as law enforcement officers.” App. p. 14. A trial court later
found Willis guilty and sentenced him to 365 days with all but time served
suspended to probation. Willis now appeals.
Analysis [6] Willis’s argument is that there is insufficient evidence he “forcibly” resisted
Officer Wright. When reviewing the sufficiency of the evidence, “appellate
courts must consider only the probative evidence and reasonable inferences
supporting the verdict.” Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 3 of 7 the fact finders role to assess the credibility of the witnesses and weigh the
evidence. Id. Appellate courts must consider conflicting evidence most
favorably to the trial courts ruling and affirm the conviction unless “no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Id.
[7] Indiana Code Section 35-44.1-3-1(a)(1) provides 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.”
[8] In Spangler v. State, our supreme court held that the word “forcibly” is an
essential element of the crime and modifies the entire string of verbs—resists,
obstructs, and interferes—such that the State must show forcible resistance,
forcible obstruction, or forcible interference. 607 N.E.2d 720, 722-23 (Ind.
1993). Our supreme court has also held that “forcibly” means “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
officials 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. “The force involved need not rise to the level of mayhem.” Walker v.
State, 998 N.E.2d 724, 727 (Ind. 2013). In fact, even a very “modest level of
resistance” might support the offense. Id.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 4 of 7 [9] In Walker, our supreme court further stated:
[N]ot 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 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 officers ability to lawfully execute his or her duties.
Id.
[10] In support of his argument, Willis relies on the opinions in K.W. v. State, 984
N.E. 2d 610 (Ind. 2013); Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009);
and Berberena v. State, 914 N.E.2d 780 (Ind. Ct. App. 2009). In K.W., our
supreme court concluded that the evidence was insufficient to show forcible
resistance where an officer attempted to handcuff a juvenile and the juvenile
“turned to walk away, pulling against [the officers] grasp on his wrist.” K.W.,
984 N.E.2d at 611. In Colvin, we concluded that the evidence was sufficient to
show passive resistance but not forcible resistance where the defendant kept his
hands in his pockets and refused to comply with the officer’s commands.
Colvin, 916 N.E.2d at 309. In Berberena, we concluded that the evidence was
insufficient to show forcible resistance where an officer commanded Berberena
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 5 of 7 to stop what he was doing and when Berberena refused to comply, the officer
“had to forcefully place Berberena against the wall of the building” and
struggled with Berberena to grab his hands and place them in handcuffs.
Berberena, 914 N.E.2d at 781.
[11] On the other hand, the State relies on the opinions in McCaffrey v. State, 605
N.E.2d 241 (Ind. Ct. App. 1992); Stansberry v. State, 954 N.E.2d 507 (Ind. Ct.
App. 2011); and Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App. 2005). In
McCaffrey, we concluded that the evidence was sufficient to show forcible
resistance where the defendant refused the officer’s orders to stand on two
different occasions and had to be carried to and from the police car by two
officers. McCaffrey, 605 N.E.2d at 242. Stansberry referenced the action of
placing one’s hands on the casing of a doorway to resist leaving the house as
evidence that was sufficient to show forcible resistance. Stansberry, 954 N.E.2d
at 511 (citing Wellman v. State, 703 N.E.2d 1061, 1064 (Ind. Ct. App. 1998)). In
Johnson, we concluded that the evidence was sufficient to show forcible
resistance where a person “push[es] away” officers attempting to search him,
“turn[s] away,” and “stiffen[s] up” when officers try to place him in a police
car. Johnson, 833 N.E.2d at 518-19.
[12] Of the cases presented, Willis’s conduct is most analogous to that in Johnson
and distinguishable from the conduct in K.W. In K.W., the defendant merely
“turned to walk away, pulling against [the officer’s] grasp on his wrist. K.W.,
984 N.E.2d at 611. Here, Willis did more than just turn to walk away. Willis
tried to push Officer Wright’s hand away, just as in Johnson. Willis also tried to Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 6 of 7 pull away from Officer Wright’s grasp, wrestled with the two officers for about
a minute, caused injuries to one officer, and laid on his left arm to keep the
officers from grabbing it. Willis’s resistance was equivalent to the defendant in
Johnson “stiffening up” when officers tried to place him in a police car. Johnson,
833 N.E.2d at 518-19.
[13] Given that Willis used strong, powerful, violent means to evade law
enforcement Officer Douglas Wright’s rightful exercise of his duties, we
conclude there is sufficient evidence to show Willis did “forcibly” resist Officer
Wright.
Conclusion [14] The evidence is sufficient to support Willis’s conviction for Class A
misdemeanor resisting law enforcement. We affirm.
[15] Affirmed.
Vaidik, C.J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A05-1510-CR-1583 | July 14, 2016 Page 7 of 7