MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                FILED
regarded as precedent or cited before any                       May 31 2017, 9:46 am
court except for the purpose of establishing
                                                                     CLERK
the defense of res judicata, collateral                          Indiana Supreme Court
                                                                    Court of Appeals
estoppel, or the law of the case.                                     and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Timothy J. Burns                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                   Attorney General
                                                        Katherine Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Chelsey Cody,                                           May 31, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1612-CR-2681
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable David J. Certo,
Appellee-Plaintiff.                                     Judge
                                                        The Honorable David Hooper,
                                                        Magistrate
                                                        Trial Court Cause No.
                                                        49G12-1606-CM-21362



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017      Page 1 of 6
                                       Statement of the Case
[1]   Chelsey Cody (“Cody”) appeals her conviction, following a bench trial, for

      Class A misdemeanor resisting law enforcement.1 Cody argues there is

      insufficient evidence that she forcibly resisted the police officer. Concluding

      that Cody’s argument is merely a request to reweigh the evidence, we deny this

      request and affirm her conviction.


[2]   We affirm.


                                                     Issue
                 Whether sufficient evidence supports Cody’s resisting law
                 enforcement conviction.

                                                     Facts
[3]   On June 2, 2016, Sergeant James Trimble (“Sergeant Trimble”) and Deputy

      Merrill of the Marion County Sheriff’s Department responded to a dispatch call

      to serve an outstanding warrant on Cody. Both officers arrived in a marked

      police car and were dressed in full uniform. When they arrived, Cody was

      sitting in her vehicle while on a work break. As Sergeant Trimble and Deputy

      Merrill approached the driver’s side of her vehicle, Cody locked the doors and

      rolled up the windows.




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


      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017   Page 2 of 6
[4]   Sergeant Trimble identified himself as a police officer, told Cody that she had a

      warrant, and instructed Cody, through the closed window, to get out of the

      vehicle. However, Cody refused. Sergeant Trimble “gave several more loud

      commands for her to exit the vehicle.” (Tr. Vol 2 at 9). Cody ignored his

      instructions and called 911. The dispatcher instructed Cody to exit and

      contacted Sergeant Trimble. Thereafter, Sergeant Trimble again informed

      Cody she had an outstanding arrest warrant. Deputy Merrill then went to the

      slightly ajar back passenger window and ordered Cody to get out of the car.

      When Cody refused again, the officer advised her that if she did not exit, she

      would be tased. Cody opened the driver’s door but refused to get out and

      stand. Sergeant Trimble “extracted her from the vehicle using an arm bar take

      down.” (Tr. Vol 2 at 10). He then told her to get on the ground. Cody refused

      and “spun away” from the Sergeant. (Tr. Vol 2 at 10). Sergeant Trimble used a

      “front leg sweep” to gain control of her and get her on the ground. (Tr. Vol 2 at

      10). Cody was then arrested and taken into custody.


[5]   The State charged Cody with Class A misdemeanor resisting law enforcement.2

      The trial court held a bench trial, and Sergeant Trimble and Cody testified. The

      trial court found Cody guilty of resisting law enforcement and imposed a 365

      day sentence and suspended 355 days. Cody now appeals.




      2
       The State also charged Cody with Class B misdemeanor possession of marijuana, but that charge was
      dismissed at trial.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017          Page 3 of 6
                                                  Decision
[6]   Cody argues that the evidence was insufficient to support her conviction for
      Class A misdemeanor resisting law enforcement.

              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 quotation marks

      and citations omitted) (emphasis in original).


[7]   The resisting law enforcement statute provides that “[a] person who knowingly

      or intentionally forcibly resists, obstructs or interferes with a law enforcement

      officer . . . while the officer is lawfully engaged in the execution of the officer’s

      duties” commits class A misdemeanor resisting law enforcement. I.C. § 35-

      44.1-3-1(a)(1). To convict Cody as charged, the State was required to prove

      beyond a reasonable doubt that Cody knowingly or intentionally forcibly

      resisted, obstructed, or interfered with Sergeant Trimble while he was lawfully

      engaged in the execution of his duties.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017   Page 4 of 6
[8]    Cody argues that there was insufficient evidence to show that she forcibly

       resisted the officer. The Indiana Supreme Court has held that one forcibly

       resists when one uses “strong, powerful, violent means to impede an officer,”

       but noted that the standard “may be satisfied with even a modest exertion of

       strength, power, or violence.” Walker v. State, 998 N.E.2d 724,727-28 (Ind.

       2013). The force needed need not rise to the level of mayhem. Graham v. State,

       903 N.E.2d 963, 965 (Ind. 2009). It is well established that even stiffening one’s

       arm when an officer grabs hold to position them for cuffing would suffice. Id.

       at 966.


[9]    There is sufficient evidence to support the trial court’s determination that Cody

       forcibly resisted law enforcement. Cody refused several times to exit her

       vehicle even after being informed that Sergeant Trimble had a warrant for her

       arrest. Sergeant Trimble testified Cody spun to get away from him. Cody’s act

       of spinning away from the officer as he grabbed her arm and pulled her from

       the car demonstrates that she forcibly resisted the officer. The spin was a

       “modest exertion of strength, power or violence.” See Walker, 998 N.E.2d at

       727-28. As such, sufficient evidence exists to support that Cody forcibly

       resisted the officer.


[10]   Cody suggests that she offered only passive, not forceful, resistance. Cody

       contends that her spinning away from the officer as he grabbed her out of the

       car did not amount to forcible resisting because it “is possible that she spun

       away [because] she lost her balance.” (Cody’s Br. 11). In support of her

       argument, she cites to Macy v. State, 9 N.E.3d 249 (Ind. Ct. App. 2014), Colvin v.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017   Page 5 of 6
       State, 916 N.E. 2d 306, 309 (Ind. Ct. App. 2009), and Berberena v. State, 914

       N.E. 2d 780, 782 (Ind. Ct. App. 2009). These cases are distinguishable because,

       unlike the defendants in those cases, Cody forcibly resisted the officer.


[11]   Cody’s argument is merely a request to reweigh the evidence. We will not

       reweigh the evidence or judge the credibility of witnesses. See Drane v. State,

       867 N.E.2d at 146. When entering its verdict, the trial court stated that it gave

       more credibility to Sergeant Trimble’s testimony. Specifically, it stated that

       “[b]ased on the testimony . . . [it believed] that Sergeant Trimble’s account of

       Cody’s conduct is a more complete [. . .] and accurate description of how the

       incident occurred.” (Tr. Vol. 2 at 38). There was sufficient evidence from

       which the trial court, as trier of fact, could have found that Cody resisted law

       enforcement.


[12]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1612-CR-2681 | May 31, 2017   Page 6 of 6
