MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                             Sep 22 2016, 5:35 am
regarded as precedent or cited before any                              CLERK
court except for the purpose of establishing                       Indiana Supreme Court
                                                                      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
Jennifer A. Joas                                         Gregory F. Zoeller
Madison, Indiana                                         Attorney General of Indiana
                                                         Karl Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brandon McGaughey,                                       September 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         39A01-1601-CR-119
        v.                                               Appeal from the Jefferson Superior
                                                         Court
State of Indiana,                                        The Honorable Michael J.
Appellee-Plaintiff.                                      Hensley, Judge
                                                         Trial Court Cause No.
                                                         39D01-1409-CM-825



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016   Page 1 of 6
                                  Case Summary and Issue
[1]   Following a jury trial, Brandon McGaughey was convicted of resisting law

      enforcement, a Class A misdemeanor, and criminal mischief, a Class B

      misdemeanor. McGaughey appeals, raising the sole issue of whether the

      evidence is sufficient to sustain his conviction for resisting law enforcement. 1

      Concluding the evidence is sufficient, we affirm.



                              Facts and Procedural History
[2]   On the evening of September 24, 2014, Deputy Joshua Cochran from the

      Jefferson County Sheriff’s Department responded to a radio dispatch for

      officers to watch for a reckless driver in a black SUV. After locating a black

      SUV, Deputy Cochran followed the vehicle for a short distance, watching for

      erratic driving behaviors and also requesting a license and registration check on

      the vehicle. Dispatch informed the deputy the vehicle belonged to McGaughey

      and McGaughey’s license was currently suspended. After observing the driver,

      later identified as McGaughey, make “extreme jerky movements” and cross the

      center line of the highway, Deputy Cochran initiated a traffic stop and

      identified McGaughey as the driver. Transcript of Evidence at 16.


[3]   During the traffic stop, McGaughey appeared agitated and indicated he thought

      he was simply being hassled by the police, so Deputy Cochran ordered him to




      1
          McGaughey does not appeal his criminal mischief conviction.


      Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016   Page 2 of 6
      exit his vehicle to “get[] him out of his element.” Id. at 21. Meanwhile, three

      other officers arrived to assist Deputy Cochran: Officer Jeremy Cox, Officer

      Kurtis Wallace, and Sergeant Jeff Neace. Upon arrival, Sergeant Neace

      observed the smell of alcohol on McGaughey’s breath. After being asked

      whether he had been drinking, McGaughey admitted he “had a few drinks.”

      Id. at 23. Deputy Cochran then conducted three field sobriety tests, concluded

      that McGaughey failed each test, and placed him under arrest for operating a

      vehicle while intoxicated.


[4]   After being told to place his arms behind his back, McGaughey stiffened his

      arms, pulled away from Deputy Cochran, and prevented Deputy Cochran from

      placing the handcuffs on him. Officer Wallace assisted Deputy Cochran by

      forcibly bringing McGaughey’s wrists together. After the officers secured the

      handcuffs on McGaughey, Deputy Cochran asked Officer Wallace to perform a

      pat-down search of McGaughey. During the search, McGaughey began yelling

      and screaming, twisting his body away from Officer Wallace and refusing to

      allow him to search his pockets. Officer Wallace and Deputy Cochran then

      pinned McGaughey against a police vehicle to restrain his movement in order

      to perform the pat-down search. Once the officers placed McGaughey in the

      front seat of the police vehicle, he told them he was “going to start breaking

      sh**.” Id. at 35. McGaughey then began slamming his feet into the dashboard

      of the vehicle, breaking the GPS unit’s dash-mount. Officer Wallace and

      Deputy Cochran forcibly removed McGaughey from the vehicle and placed

      him on the ground to gain compliance. And yet, McGaughey still would not


      Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016   Page 3 of 6
      comply with the officers’ orders to calm down, requiring Sergeant Neace to

      utilize his taser. Eventually, McGaughey calmed down and Officer Cox

      transported him to jail with Sergeant Neace riding in the backseat with

      McGaughey.


[5]   The State charged McGaughey with four counts: operating a vehicle while

      intoxicated as a Class A misdemeanor, operating a vehicle while intoxicated as

      a Class C misdemeanor, resisting law enforcement as a Class A misdemeanor,

      and criminal mischief as a Class B misdemeanor. A jury found McGaughey

      guilty of criminal mischief and resisting law enforcement. McGaughey now

      appeals his conviction for resisting law enforcement.



                                Discussion and Decision
                                     I. Standard of Review
[6]   In reviewing the sufficiency of the evidence to support a conviction, we neither

      reweigh the evidence nor judge the credibility of witnesses. Willis v. State, 27

      N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the

      verdict and any reasonable inferences drawn therefrom. Id. We will affirm the

      conviction “if there is substantial evidence of probative value supporting each

      element of the crime from which a reasonable trier of fact could have found the

      defendant guilty beyond a reasonable doubt.” Walker v. State, 998 N.E.2d 724,

      726 (Ind. 2013) (citation omitted).




      Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016   Page 4 of 6
                              II. Sufficiency of the Evidence
[7]   To prove resisting law enforcement as a Class A misdemeanor, the State was

      required to prove that McGaughey “knowingly or intentionally . . . forcibly

      resist[ed], obstruct[ed], or interfer[ed] 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.” Ind. Code § 35-44.1-3-1(a)(1) (2014). On appeal,

      McGaughey maintains the evidence is insufficient to prove he forcibly resisted,

      obstructed, or interfered with a police officer. Specifically, McGaughey

      contends any “action taken . . . does not rise to the level of force necessary to

      convict him of resisting law enforcement.” Appellant’s Brief at 7.


[8]   “[O]ne ‘forcibly resists’ law enforcement when strong, powerful, violent means

      are used to evade a law enforcement official’s rightful exercise of his or her

      duties.” Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993). An overwhelming

      or extreme level of force is not required. Walker, 998 N.E.2d at 727. Forcible

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

      violence. Id. We have affirmed convictions for resisting law enforcement

      where the defendant pulled away from police officers and refused to place his

      hands behind his back, Lopez v. State, 926 N.E.2d 1090, 1093-94 (Ind. Ct. App.

      2010), trans. denied; where a defendant was flailing, jerking, or squirming her

      body while an officer was trying to handcuff her, J.S. v. State, 843 N.E.2d 1013,

      1017 (Ind. Ct. App. 2006), trans. denied; and where a defendant “stiffened up”

      when police attempted to place him in a police vehicle, Johnson v. State, 833

      N.E.2d 516, 518-19 (Ind. Ct. App. 2005).

      Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016   Page 5 of 6
[9]    McGaughey asserts that his actions were “merely difficult,” rather than

       forceful. Appellant’s Br. at 8. However, this argument amounts to a request to

       reweigh the evidence, which we will not do. Here, the State presented evidence

       in the form of testimony by Deputy Cochran, Officer Wallace, and Sergeant

       Neace that McGaughey pulled away and stiffened his arms when they

       attempted to handcuff him. Further, the evidence shows the arrest required at

       least two officers to restrain McGaughey by pinning him against the vehicle,

       place him in handcuffs, and complete a pat-down search. In addition, after

       being placed in the police vehicle, McGaughey violently slammed his feet

       against the dashboard and broke police equipment, forcing the officers to yank

       him from the vehicle and tase him to subdue his resistance. These facts are

       sufficient for a reasonable jury to find that McGaughey forcibly resisted law

       enforcement.



                                               Conclusion
[10]   There was sufficient evidence to support McGaughey’s conviction, and we

       therefore affirm.


[11]   Affirmed.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 39A01-1601-CR-119 | September 22, 2016   Page 6 of 6
