Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                         Aug 26 2014, 9:45 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:

TIMOTHY J. BURNS                                  GREGORY F. ZOELLER
Indianapolis, Indiana                             Attorney General of Indiana

                                                  RICHARD C. WEBSTER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

FERNANDO MIRANDA,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )       No. 49A04-1401-CR-10
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Kimberly J. Brown, Judge
                            Cause No. 49F07-1309-CM-62446


                                        August 26, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       Appellant-Defendant Fernando Miranda appeals his convictions for Class A

misdemeanor resisting law enforcement and Class B misdemeanor public intoxication,

arguing that they are not supported by sufficient evidence. Specifically, Miranda claims

that Appellee-Plaintiff the State of Indiana failed to prove that his resistance of a police

officer was “knowing or intentional” and “forcible,” as required by Ind. Code § 35-44.1-3-

1. Finding evidence that, inter alia, Miranda knew a police officer was attempting to

handcuff him and that he pulled away from the officer, we conclude that sufficient evidence

supports Miranda’s Class A misdemeanor resisting law enforcement conviction. Miranda

also claims the State failed to prove that he breached the peace, as required by Ind. Code §

7.1-5-1-3(a)(3). Finding evidence, inter alia, that Miranda forcibly and repeatedly resisted

a police officer, we conclude that sufficient evidence supports Miranda’s conviction for

Class B misdemeanor public intoxication. We affirm the judgment of the trial court.

                       FACTS AND PROCEDURAL HISTORY

       At approximately 3:00 a.m. on February 20, 2013, Miranda called 911 to report that

he had been robbed of his billfold at an auto repair shop on West 10th Street in Indianapolis.

Officer Jon King of the Indianapolis Metropolitan Police Department (“IMPD”) responded

to Miranda’s call in full police uniform and driving a marked IMPD patrol car. When

Officer King arrived at the auto repair shop, he found Miranda standing on the sidewalk

outside. Miranda was intoxicated, having been drinking beer at the auto repair shop in

celebration of his pending move to New Jersey.

       Officer King began questioning Miranda, but their communication “wasn’t real

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effective.” Tr. p. 9. Miranda speaks Spanish and very little English. Officer King speaks

English and very little Spanish, the latter being learned as a part of his police training.

Miranda quickly became agitated, yelling, “No policia, no policia.” Tr. p. 10. Then,

suddenly, Miranda “stepped back into a fighting stance” and “balled up his fists” as if “he

was about to hit [Officer King].” Tr. p. 12. Officer King stepped away from Miranda, at

which point Miranda put his left hand into his pocket. Fearing Miranda was about to pull

a weapon from his pocket, Officer King grabbed Miranda’s left arm and tried to get him

into a position where he could be handcuffed.

       Officer King twice told Miranda—in Spanish—to put his hands behind his back.

Miranda did not comply. Instead, he tensed his body, making it “extremely rigid.” Tr. p.

14. Unable to remove Miranda’s left hand from his pocket, Officer King delivered a knee

strike to one of Miranda’s thighs and took him to the ground. There, Officer King was able

to cuff Miranda’s right hand. Miranda, however, held his left hand underneath his body

and began pulling his right, cuffed hand away from Officer King. Officer King had to pull

on his handcuffs with a “significant amount of force” to get Miranda’s right hand back

behind his back. Tr. p. 16-17. With Miranda still holding his left hand underneath his

body, Officer King delivered a single punch to Miranda’s torso. At that point, Miranda’s

left hand came out from under his body, and Officer King was able to handcuff both hands.

Miranda later testified, “I couldn’t resist any longer, so, I just let him handcuff me.” Tr. p.

44.

       The State charged Miranda with one count each of Class A misdemeanor resisting

law enforcement and Class B misdemeanor public intoxication. Following a bench trial on

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December 12, 2013, Miranda was found guilty as charged. The trial court sentenced

Miranda to 365 days of incarceration for his Class A misdemeanor resisting law

enforcement conviction, with 362 days suspended to supervised probation. For his Class

B misdemeanor public intoxication conviction, the trial court sentenced Miranda to 180

days of incarceration, with 176 days suspended to supervised probation.           Miranda’s

sentences were ordered to be served concurrently.

                            DISCUSSION AND DECISION

       Miranda challenges the sufficiency of the evidence to support his convictions for

Class A misdemeanor resisting law enforcement and Class B misdemeanor public

intoxication.

               When reviewing the sufficiency of the evidence to support a
       conviction, appellate courts must consider only the probative evidence and
       reasonable inferences supporting the verdict. It is the fact-finder’s role, not
       that of appellate courts, to assess witness credibility and weigh the evidence
       to determine whether it is sufficient to support a conviction. To preserve this
       structure, when appellate courts are confronted with conflicting evidence,
       they must consider it most favorably to the trial court’s ruling. Appellate
       courts affirm the conviction unless no reasonable fact-finder could find the
       elements of the crime proven beyond a reasonable doubt. It is therefore not
       necessary that the evidence overcome every reasonable hypothesis of
       innocence. The evidence is sufficient if an inference may reasonably be
       drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal citations, emphasis, and

quotation marks omitted). “In essence, we assess only whether the verdict could be reached

based on reasonable inferences that may be drawn from the evidence presented.” Baker v.

State, 968 N.E.2d 227, 229 (Ind. 2012).




                                             4
         I. Whether Sufficient Evidence Supports Miranda’s Conviction for
                            Resisting Law Enforcement

       Miranda argues that the State presented insufficient evidence to support his Class A

misdemeanor resisting law enforcement conviction. Indiana Code section 33-44.1-3-1(a)

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.” Ind. Code § 35-44.1-3-1(a)(1).

                         A. Knowing or Intentional Resistance

       Miranda first claims that the State failed to prove that he “knowingly or

intentionally” resisted Officer King. Ind. Code § 35-44.1-3-1(a)(1). “A person engages in

conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability

that he is doing so.”     Ind. Code § 35-41-2-2(b).       “A person engages in conduct

‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.”

Ind. Code § 35-41-2-2(a). The knowledge and intent behind a defendant’s actions may be

inferred from the circumstances. Ritchie v. State, 809 N.E.2d 258, 270 (Ind. 2004).

       We conclude that the evidence sufficiently supports a finding that Miranda

knowingly or intentionally resisted Officer King. Although Miranda speaks Spanish and

very little English, and Officer King speaks English and very little Spanish, the record

reveals that Officer King twice told Miranda—in Spanish—to put his hands behind his

back. Miranda also began pulling his right hand away from Officer King after it had

already been cuffed. Moreover, in his testimony regarding the incident with Officer King,


                                             5
Miranda stated, “I couldn’t resist any longer, so, I just let him handcuff me.” Tr. p. 44.

From this evidence, a reasonable fact finder could infer that Miranda was aware of a high

probability that he was resisting Officer King or that it was his conscious objective to do

so. Ind. Code § 35-41-2-2.

                                  B. Forcible Resistance

       Miranda alternatively claims that the State failed to prove that he “forcibly” resisted

Officer King. Ind. Code § 35-44.1-3-1(a)(1). “[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.” Walker v. State, 998 N.E.2d

724, 727 (Ind. 2013). The requisite level of force, however, need not be “overwhelming

or extreme.” Id. “[A] modest exertion of strength, power, or violence” is sufficiently

forcible. Id.

       We conclude that the evidence sufficiently supports a finding that Miranda acted

forcibly in resisting Officer King. The record reveals that, when Officer King first

attempted to handcuff him, Miranda tensed his body, making it “extremely rigid.” Tr. p.

14. See Johnson v. State, 833 N.E.2d 516, 517 (Ind. Ct. App. 2005) (finding forcible

resistance where defendant “stiffened up” when officers attempted to put him into a police

vehicle); see also Graham v. State, 903 N.E.2d 963, 966 (Ind. 2009) (finding no forcible

resistance where defendant refused to comply with officer’s order to present his arms for

cuffing but stating, “‘[S]tiffening’ of one’s arms when an officer grabs hold to position

them for cuffing would suffice.”). Further, after Officer King took Miranda to the ground,

Miranda held his left hand underneath his body. See Lopez v. State, 926 N.E.2d 1090, 1094

                                              6
(Ind. Ct. App. 2010) (“If the officers were unable to pull his arms out from under him, it is

reasonable to infer that he was forcibly resisting their efforts rather than remaining entirely

passive.”). Moreover, Miranda began pulling his right, cuffed hand away from Officer

King, who had to pull on his handcuffs with “a significant amount of force” to get

Miranda’s right hand back behind his back. See J.S. v. State, 843 N.E.2d 1013, 1017 (Ind.

Ct. App. 2006) (finding forcible resistance where juvenile “pulled,” “jerked,” and “yanked”

away from Officer, “making it impossible for [officer] to hold her hands”). This evidence

supports a finding that Miranda used “strong, powerful, violent means” to resist Officer

King. Walker, 998 N.E.2d at 727.

         II. Whether Sufficient Evidence Supports Miranda’s Conviction for
                                 Public Intoxication

       Miranda also argues that the State presented insufficient evidence to support his

conviction for public intoxication. Miranda was convicted under Indiana Code subsection

7.1-5-1-3(a), which, as amended in 2012, no longer criminalizes simply being intoxicated

in public. Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct. App. 2013). The statute now

provides:

       [I]t is a Class B misdemeanor for a person to be in a public place or a place
       of public resort in a state of intoxication caused by the person’s use of alcohol
       or a controlled substance (as defined in IC 35-48-1-9), if the person:
                (1) endangers the person’s life;
                (2) endangers the life of another person;
                (3) breaches the peace or is in imminent danger of breaching the
                peace; or
                (4) harasses, annoys, or alarms another person.

Ind. Code § 7.1-5-1-3(a). Miranda does not contest that he was intoxicated in a public

place. He claims only that the State failed to prove that he endangered his life or that of

                                              7
another person; breached the peace or was in imminent danger of doing so; or harassed,

annoyed, or alarmed another person. Ind. Code § 7.1-5-1-3(a)(1)-(4).

       The State claims Miranda’s forcible resistance of Officer King breached the peace.

“A breach of the peace includes all violations of public peace, order or decorum.” State v.

Hart, 669 N.E.2d 762, 764 (Ind. Ct. App. 1996) (citing Census Fed. Credit Union v. Wann,

403 N.E.2d 348, 350 (Ind. Ct. App. 1980)). “It is a violation or disturbance of the public

tranquility or order and includes breaking or disturbing the public peace by any riotous,

forceful, or unlawful proceedings.” Lemon v. State, 868 N.E.2d 1190, 1194 (Ind. Ct. App.

2007). “Thus, a breach of the peace may involve other offenses.” Id.; see e.g., Hart, 669

N.E.2d at 764 (holding that a person who operates a motor vehicle while intoxicated

commits a breach of the peace).

       We conclude that the evidence sufficiently supports a finding that Miranda breached

the peace in imminent danger of breaching the peace in that the record reveals that Miranda

yelled at Officer King and then “stepped back into a fighting stance” and “balled up his

fists” as if “he was about to hit [him].” Tr. p. 12. This evidence supports a finding that

Miranda disturbed the public tranquility. Lemon, 868 N.E.2d at 1194.

                                     CONCLUSION

       We conclude that the State presented sufficient evidence to support Miranda’s

convictions for Class A misdemeanor resisting law enforcement and Class B misdemeanor

public intoxication. Accordingly, we affirm the judgment of the trial court.

       The judgment of the trial court is affirmed.

BARNES, J., and BROWN, J., concur.

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