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
