                                                                                      FILED
MEMORANDUM DECISION                                                             May 19 2016, 8:02 am

                                                                                      CLERK
Pursuant to Ind. Appellate Rule 65(D),                                           Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court
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.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Suzy St. John                                           Gregory F. Zoeller
Ruth Ann Johnson                                        Attorney General of Indiana
Marion County Public Defender’s Office
                                                        Brian Reitz
Indianapolis, Indiana                                   Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Rodney Tyms,                                            May 19, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1509-CR-1484
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Annie Christ-
Appellee-Plaintiff.                                     Garcia, Judge
                                                        Trial Court Cause No.
                                                        49F24-1307-FD-44986



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1484 | May 19, 2016              Page 1 of 6
                                       Statement of the Case
[1]   Rodney Tyms (“Tyms”) appeals his convictions of two counts of resisting law

      enforcement as Class A misdemeanors.1 He argues that there is insufficient

      evidence to support his convictions because the State failed to prove that he

      forcibly resisted law enforcement officers. Finding sufficient evidence of

      forcible resistance, we affirm.


[2]   We affirm.


                                                     Issue
                 Whether there is sufficient evidence to support Tyms’ convictions
                 for resisting law enforcement.


                                                     Facts
[3]   At approximately 3:45 a.m. on July 10, 2013, Indianapolis Metropolitan Police

      Department (“IMPD”) Officer Shelia McNeal (“Officer McNeal”) initiated a

      traffic stop of Tyms when she saw him change lanes without signaling. IMPD

      Sergeant Steven Rivers (“Sergeant Rivers”) stopped to assist Officer McNeal.

      As Sergeant Rivers exited his car, he observed Tyms “literally hanging entirely

      his upper torso [and arms] outside of his vehicle yelling profanities. . . .” (Tr.

      64). Tyms yelled that the officers had no right to stop him because he had

      “diplomatic immunity.” (Tr. 64-65). Sergeant Rivers was concerned because




      1
          IND. CODE § 35-44.1-3-1.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1484 | May 19, 2016   Page 2 of 6
      “to immediately start yelling and screaming at officers and hanging half out of

      your vehicle is very abnormal behavior . . . .” (Tr. 65).


[4]   Sergeant Rivers and Officer McNeal approached Tyms’ vehicle. When Officer

      McNeal asked Tyms for his license, Tyms gave her a “Moorish National

      International Road Travel” card. (State’s Ex. 6). When the officer asked Tyms

      for his vehicle registration, Tyms continued to yell profanities and “came

      halfway back out of the car.” (Tr. 70). Sergeant Rivers noticed that Tyms was

      leaning out of his car with his right hand and his left hand was “stuffed down

      between the driver’s seat and the driver’s door inside of the vehicle.” (Tr. 71).

      Concerned that Tyms was reaching for a weapon, the sergeant ordered Tyms to

      show his hands multiple times. Tyms refused to comply with the sergeant’s

      orders.


[5]   Sergeant Rivers pulled out his Taser, pointed it at Tyms, and told him to show

      his hands and step out of the vehicle or be tased. Tyms refused to show his

      hands and continued to yell that he had “diplomatic immunity.” (Tr. 73).

      Sergeant Rivers attempted to open the door to Tyms’ vehicle, but Tyms pulled

      it closed. As the two men struggled, Tyms leaned back and reached for the

      center console. Concerned that Tyms was reaching for a weapon, Sergeant

      Rivers tased Tyms. The Taser had a cartridge that shot two probes and

      delivered a five-second electrical shock to Tyms. Officer McNeal and Sergeant

      Rivers pulled Tyms out of his vehicle and placed him face down on the ground.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1484 | May 19, 2016   Page 3 of 6
[6]   As soon as the electrical shock wore off, Tyms kicked, screamed, and pulled his

      hands underneath him. Officer McNeal and Sergeant Rivers ordered Tyms to

      give them his hands and arms, but Tyms kept “his hands clinched up under

      him.” (Tr. 39). The officers attempted to pull Tyms’ arms out but were unable

      to do so even though Officer McNeal kneed Tyms in the leg and Sergeant

      Rivers hit him on the shoulder with a closed fist. Sergeant Rivers eventually

      tased Tyms a second and a third time, but he and Officer McNeal were still

      unable to grab Tyms’ hands. It was not until a third IMPD officer arrived at the

      scene that the three officers together were able to grab Tyms’ hands and

      handcuff him.


[7]   Tyms was convicted by jury of two counts of Class A misdemeanor resisting

      law enforcement, one count each for resisting Officer McNeal and Sergeant

      Rivers. He now appeals both convictions.


                                                  Decision
[8]   Tyms argues that there is insufficient evidence to sustain his convictions.

      When reviewing sufficiency of the evidence claims, we neither reweigh the

      evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065,

      1066 (Ind. 2015). We only consider the evidence supporting the judgment and

      any reasonable inferences that can be drawn from the evidence. Id. We will

      affirm a conviction if there is substantial evidence of probative value supporting

      each element of the offense such that a reasonable trier of fact could have found




      Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1484 | May 19, 2016   Page 4 of 6
       the defendant guilty beyond a reasonable doubt. Id. Finally, we consider

       conflicting evidence most favorably to the trial court’s ruling. Id. at 1066-67.


[9]    In order to convict Tyms of resisting law enforcement as a Class A

       misdemeanor, the State had to prove beyond a reasonable doubt that he

       knowingly or intentionally forcibly resisted, obstructed, or interfered with

       Officer McNeal and Sergeant Rivers while they were lawfully engaged in the

       execution of their duties. See I.C. § 35-44.1-3-1(a)(1). Tyms contends that

       “keeping his hands tucked underneath his body and refusing to present them for

       cuffing is passive resistance, which will not suffice for a conviction.” (Tyms’

       Br. 12).


[10]   A person forcibly resists, obstructs, or interferes with a police officer when he

       uses strong, powerful, violent means to impede an officer in the lawful

       execution of his duties. Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013). An

       overwhelming or extreme level of force is not required. Id. Forcible resistance

       may be satisfied with even a modest exertion of strength, power, or violence.

       Id. Physical contact is not even required. Id. A threatening gesture may be

       sufficient to constitute forcible resistance. Id. In Lopez v. State, 926 N.E.2d

       1090, 1094 (Ind. Ct. App. 2010), trans. denied, this Court held that it was

       reasonable to infer forcible resistance where “the officers were unable to pull

       [the defendant’s] arms out from under him.”


[11]   Here, Officer McNeal and Sergeant Rivers testified that they were unable to

       pull Tyms’ hands out from under him. It was not until a third officer arrived at


       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1484 | May 19, 2016   Page 5 of 6
       the scene that the three officers together were able to grab Tyms’ hands and

       handcuff him. As in Lopez, this is sufficient evidence to support the inference

       that Tyms used force in preventing Officer McNeal and Sergeant Rivers from

       handcuffing him. This evidence supports each element of the offense such that

       a reasonable trier of fact could have found Tyms guilty beyond a reasonable

       doubt. We therefore affirm Tyms’ convictions for resisting law enforcement. 2


[12]   Affirmed.


       Kirsch, J., and Riley, J., concur.




       2
        Tyms also argues that there is insufficient evidence to support his conviction because his struggle with
       Officer McNeal and Sergeant Rivers was “involuntary bodily activity” after being tased. (Tyms’ Br. 8). This
       argument is an invitation for us to we reweigh the evidence, which we cannot do. See Willis, 27 N.E.3d at
       1066.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1509-CR-1484 | May 19, 2016             Page 6 of 6
