Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                                Jul 09 2013, 6:26 am
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:

DAVID L. JOLEY                                      GREGORY F. ZOELLER
Fort Wayne, Indiana                                 Attorney General of Indiana

                                                    GEORGE P. SHERMAN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

BRANDON T. WRIGHT,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 02A04-1211-CR-609
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable John F. Surbeck, Jr., Judge
                         The Honorable Marcia L. Linsky, Magistrate
                              Cause No. 02D06-1204-CM-2296



                                           July 9, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


CRONE, Judge
                                      Case Summary

       Brandon T. Wright appeals his conviction for class A misdemeanor resisting law

enforcement. He contends that the trial court abused its discretion when it refused to give to

the jury his proposed jury instruction regarding the right to resist excessive force. He also

contends that the State presented insufficient evidence to support his conviction. Concluding

that no abuse of discretion occurred and that the State presented sufficient evidence, we

affirm Wright’s conviction.

                              Facts and Procedural History

       On April 20, 2012, Fort Wayne Police Officer Rod Bradtmueller was dispatched to a

home in response to a domestic dispute after it was reported that Wright was on the scene

with a gun. When Officer Bradtmueller arrived at the home, he observed two females

standing on the sidewalk, another female sitting inside a car parked in a driveway, and

Wright standing next to the car. A few other people were gathered nearby.

       As Officer Bradtmueller approached, he asked, “Who has the gun?” Tr. at 144. One

of the females standing on the sidewalk pointed at Wright and said, “He does.” Id. at 145.

Officer Bradtmueller pulled out his gun and did not point it at anyone, but just had it “low

ready.” Id. Officer Bradtmueller then repeatedly ordered Wright to show him his hands.

Wright, whose left hand was in his pocket, did not comply and instead said, “I ain’t doing

anything.” Id. at 147. At this point, two additional officers, Officer Brian Juricak and

Officer Cameron Norris, arrived on the scene.




                                              2
       Because Wright refused to remove his hand from his pocket, Officer Bradtmueller

ordered Wright to get on the ground. Wright did not comply with Officer Bradtmueller’s

orders. Officer Norris approached Wright from the left side and also ordered Wright to get

on the ground. When Wright again refused, Officer Norris reached out for Wright’s left arm.

Wright removed his hand from his left pocket, and Officer Norris saw a “flash of silver.” Id.

at 190. This startled Officer Norris until he saw that it was a cluster of keys in Wright’s fist.

Officer Norris, who is five feet six inches tall and 150 pounds, then grabbed Wright’s left

arm in order to take him to the ground. Wright, who is approximately five feet eleven inches

tall and 250 pounds, jerked his arm away from Officer Norris and looked as if he was

reaching toward the waistband of his pants. Officer Norris grabbed Wright’s left forearm,

but Wright forcefully pulled away again. Officer Norris moved his left arm under one of

Wright’s armpits and placed his right arm across Wright’s shoulder to try to gain some

compliance. Wright began to back into Officer Norris, and as he “drove back approximately

a step or two,” Officer Norris “used that same momentum” to turn and direct Wright to the

ground. Id. at 198.

       Officer Norris and the other officers attempted to keep Wright on the ground, but

Wright just kept pushing back up into the officers. All the while, the officers continued to

give Wright verbal commands to show his hands and comply with the officers. As Officer

Norris attempted to get Wright’s left arm behind his back, Wright repeatedly pulled his arm

away. After much struggling, Officer Norris was eventually able to get Wright’s left arm in a

position where Officer Juricak could handcuff that wrist. Officer Bradtmueller worked on


                                               3
the right arm and also eventually got it in a position where Officer Juricak could handcuff

that wrist. Even after being handcuffed, Wright continued to attempt to get up by pushing his

back off the ground and into the officers. At one point, Wright yelled for Officer Norris to

get his knee “off [my] f***ing neck.” Id. at 172. Wright told the officers that he was going

to “sue” them and “get paid.” Id.

       The State charged Wright with class A misdemeanor resisting law enforcement, class

B misdemeanor disorderly conduct, and class B misdemeanor public intoxication. The State

subsequently dismissed the public intoxication charge. A jury trial was held on November 8,

2011. The jury found Wright guilty of class A misdemeanor resisting law enforcement and

not guilty of class B misdemeanor disorderly conduct. This appeal followed.

                                  Discussion and Decision

                                     I. Jury Instruction

       Wright first contends that the trial court abused its discretion in rejecting his proposed

jury instruction 5 regarding the right to resist excessive force. The purpose of jury instruction

is to inform the jury of the law applicable to the facts without misleading the jury and to

enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Fowler

v. State, 900 N.E.2d 770, 773 (Ind. Ct. App. 2009). When evaluating a trial court’s rejection

of a tendered instruction, we look to: (1) whether the tendered instruction correctly states the

law, (2) whether there is evidence in the record to support giving the instruction, and (3)

whether the substance of the proffered instruction is covered by other instructions. Short v.

State, 962 N.E.2d 146, 150 (Ind. Ct. App. 2012). As a general rule, instruction of the jury


                                               4
lies with the sound discretion of the trial court and is reviewed only for an abuse of that

discretion. Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied (2006).

       Wright’s proposed jury instruction 5 provided:

       The law does not allow a peace officer to use more force than necessary to
       effect an arrest, and if he does use such unnecessary force, he thereby becomes
       a trespasser, and an arrestee therefore may resist the arrester’s use of excessive
       force by the use of reasonable force to protect himself against great bodily
       harm or death. If you find that the officer used more force than necessary to
       effectuate the arrest, then the accused was permitted to resist the arrest to such
       an extent as necessary to protect himself from great bodily harm or death, and
       you must find him not guilty of resisting law enforcement.

Appellant’s App. at 18. The trial court refused to give Wright’s proposed instruction after

concluding that the evidence did not support the giving of such instruction.

       As a general rule, a defendant in a criminal case is entitled to have the jury instructed

on any theory of defense that has some foundation in the evidence, even if the evidence is

weak or inconsistent. Burton v. State, 978 N.E.2d 520, 525 (Ind. Ct. App. 2012). Therefore,

a defendant is entitled to a jury instruction on excessive force by police officers if there is

some evidence that the officers’ use of force was excessive, that is, objectively unreasonable

under the Fourth Amendment in light of the facts and circumstances confronting the officers.

Id. at 526. When considering whether police force is unreasonable, the court considers a

variety of factors, including the severity of the crime at issue; whether the suspect poses an

immediate threat to the safety of the officers or others; and whether the suspect is actively

resisting arrest or attempting to evade arrest by flight. Id. The reasonableness of a particular

use of force must be judged objectively from the perspective of a reasonable officer on the

scene, rather than with the 20/20 vision of hindsight. Id. The question is whether the

                                               5
officers’ actions are objectively reasonable in light of the facts and circumstances confronting

them and without regard to their underlying intent or motivation. Id.

       Wright relies heavily on our decision in Burton, in which we concluded that the trial

court abused its discretion in refusing to instruct the jury on the right to resist excessive force.

However, in that case, an excessive force instruction was supported by the evidence. In

Burton, police responded to the scene of a non-injury car accident where a sleeping defendant

had allowed his vehicle to bump another vehicle. Id. Officers approached the defendant as

he was sleeping in a car, awakened him, threatened to shoot him in the head, broke into the

car, pulled him out of the car, threw him to the ground, and delivered blows to his face which

fractured several facial bones. Id. A DVD recording of the event clearly showed that the

defendant offered no resistance prior to being pulled from the car and offered only defensive

resistance to multiple blows from the three officers after being thrown to the ground. Id.

Under those circumstances, we concluded that there was some evidence that officers may

have used excessive force to extract a recently awakened and dazed defendant from the car

and to subdue him as he tried to protect himself from an officer who had threatened to kill

him for no apparent reason. Id. Therefore, the defendant was entitled to an instruction

regarding the lawful use of reasonable force to protect himself from the threat of great bodily

harm. Id.

       By contrast, here, there is no evidence that officers used force that was

disproportionate to the circumstances presented. Officers responded to a home regarding a

domestic dispute and a report that Wright was on the scene with a gun. Witnesses at the


                                                 6
scene informed the first officer who arrived that Wright, who was standing by a parked car

with one hand in his pocket, was armed. Wright disregarded officers’ repeated requests to

show them his hands. Wright then disregarded repeated requests to get on the ground. It was

only after Wright refused to demonstrate that he was not a threat to the safety of the officers

or others that the officers physically attempted to secure one of Wright’s arms and force him

to the ground. The evidence indicates that officers used only that force necessary to gain

Wright’s compliance. Under the circumstances, there was no evidentiary foundation to

support Wright’s proposed instruction on the right to resist excessive force. Accordingly, the

trial court did not abuse its discretion in refusing the instruction.

                               II. Sufficiency of the Evidence

       Wright also asserts that the State presented insufficient evidence to support his

conviction. When a defendant challenges the sufficiency of the evidence supporting a

conviction, we do not reweigh the evidence or judge the credibility of the witnesses. Joslyn

v. State, 942 N.E.2d 809, 811 (Ind. 2011). We consider only the probative evidence and

reasonable inferences drawn therefrom that support the finding of guilt. Gray v. State, 957

N.E.2d 171, 174 (Ind. 2011). We likewise consider conflicting inferences in the light most

favorable to the conviction. Id. It is unnecessary that the evidence overcome every

reasonable hypothesis of innocence. Id. We will affirm the conviction unless no reasonable

trier of fact could have found the elements of the crime proven beyond a reasonable doubt.

Id.




                                               7
       To convict Wright of class A misdemeanor resisting law enforcement, the State was

required to prove that Wright knowingly or intentionally forcibly resisted, obstructed, or

interfered with a law enforcement officer while the officer was lawfully engaged in the

execution of the officer’s duties. See Ind. Code § 35-44-3-3.1 In Spangler v. State, 607

N.E.2d 720 (Ind. 1993), our supreme court held that a person “forcibly resists” when “strong,

powerful, violent means are used to evade a law enforcement official’s rightful exercise of

his or her duties.” Id. at 723. The court has more recently explained that “the force involved

need not rise to the level of mayhem” and that a “modest level of resistance” such as

“stiffening one’s arm when an officer grabs hold to position them for cuffing” would suffice

as forcible resistance. Graham v. State, 903 N.E.2d 963, 965-66 (Ind. 2009). The “forcible”

element is met when evidence demonstrates that “the police ha[ve] to get physical” to secure

the defendant’s compliance. Id. at 966.

       Here, Wright used his physical strength and power to resist the officers. Wright

yanked his arm away from Officer Norris’s grasp at least twice and also used his body weight

to “dr[i]ve back approximately a step or two” into Officer Norris. Tr. at 198. After going to

the ground, Wright continued to push his body back up into the officers as they attempted to

gain control of the situation. Wright struggled and refused to allow officers to handcuff him

by continually pulling his arms away from the officers. This evidence is sufficient to show

that Wright forcibly resisted the officers and therefore is sufficient to support his conviction

for resisting law enforcement. We affirm his conviction.


       1
           Recodified at Indiana Code Section 35-44.1-3-1 (July 1, 2012).

                                                    8
     Affirmed.

ROBB, C.J., and FRIEDLANDER, J., concur.




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