Pursuant to Ind. Appellate Rule 65(D), 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.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

P. STEPHEN MILLER                                   GREGORY F. ZOELLER
Fort Wayne, Indiana                                 Attorney General of Indiana

                                                    MICHAEL GENE WORDEN
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana

                                                                                  FILED
                               IN THE                                        Jan 25 2012, 9:21 am

                     COURT OF APPEALS OF INDIANA
                                                                                     CLERK
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court



ANTHONY EARL COAKLEY,                               )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )       No. 02A03-1107-CR-358
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                          The Honorable Wendy W. Davis, Judge
                             Cause No. 02D04-1007-FD-709



                                         January 25, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
       Anthony Earl Coakley (“Coakley”) appeals from his conviction for one count of

resisting law enforcement1 as a Class A misdemeanor. Coakley presents the following

restated issues for our review:

       I.        Whether there was sufficient evidence to support his conviction; and

       II.       Whether the trial court committed reversible error in the manner in
                 which witnesses were sworn in to testify.

       We affirm.

                           FACTS AND PROCEDURAL HISTORY

       At approximately 3:00 a.m. on June 15, 2010, Lisa Coakley (“Lisa”) called 911 to

report that she and her husband, Coakley, were having a heated argument and requested that

officers be dispatched to her home to calm things down. Fort Wayne Police officers were

dispatched to the home on the report of a domestic dispute. The officers arrived at the

Coakley residence a short time later.

       Officer David McCarran (“Officer McCarran”), the first to arrive on the scene, could

hear yelling from inside the home as he approached the front door. He knocked on the front

door and then heard the overhead garage door open. Another officer arrived on the scene at

approximately the same time as Officer McCarran went to investigate the garage door

opening. Lisa came out of the garage, and Officer McCarran spoke with her. Lisa confirmed

that she had called 911. Coakley came to the garage doorway “yelling, arguing, [and

continuing] to kind of escalate the situation.” Tr. at 76. While yelling at Lisa, Coakley

admitted that he was drunk and refused to leave the house.



       1
           See Ind. Code § 35-44-3-3.
                                               2
       The officers attempted to separate the two in an effort to calm down the situation and

find a peaceful solution so they would not have to return later. Officer Christopher Felton

(“Officer Felton”) spoke with Lisa while other officers spoke with Coakley. Lisa told

Officer Felton that she was trying to sleep when Coakley arrived home intoxicated. She

became angry with Coakley because he began making loud noises, and she had to go to work

in a few hours. She attempted to call police officers after Coakley threw a can at her, but

Coakley prevented her from doing so at first.

       After Coakley refused to come outside, Officer McCarran asked him if the officers

could come inside the home to speak with him. Coakley consented to the officers entering

his home. Officer McCarran and Officer James Arnold (“Officer Arnold”) entered the home

and spoke with Coakley, who was cooking food in the kitchen. The officers allowed Coakley

to express his frustration. Neither Coakley nor Lisa wanted to leave the home in order to

calm the situation, but Lisa was uncomfortable with remaining in the home while Coakley

was still there. All of the officers moved to join Lisa in the garage. Coakley came to the

garage doorway where he resumed yelling and cursing at Lisa. When the officers attempted

to separate the two, Coakley began yelling and cursing at the officers as well.

       Officer Arnold walked toward Coakley, with Officer McCarran following behind him,

and instructed Coakley to stop yelling and to re-enter the house. Coakley continued yelling

and cursing at the officers. Coakley backed toward the kitchen, stopped, and then pointing

his finger very close to Officer Arnold’s face, loudly told the police to leave his home. While

yelling at Officer Arnold, Coakley spat food and saliva on Officer Arnold’s glasses and face.

Officer Arnold then told Coakley he was placing him under arrest and ordered Coakley to

                                              3
turn around so that he could be handcuffed. When Officer Arnold reached for Coakley’s

wrist, however, Coakley pulled away from the officer. Officer Arnold then grabbed

Coakley’s shoulder in an attempt to turn him around, but Coakley bent forward and started to

charge both officers. Officer McCarran grabbed Coakley’s upper body but began falling

backwards down the stairs before he could catch himself. Coakley changed directions and

lunged toward the open door to the garage.

        Coakley’s head went through a glass window, as did Officer McCarran’s right arm.

Both men were bleeding profusely from their wounds. Coakley, however, continued to

refuse to allow the officers to handcuff him. The officers yelled at Coakley to stop resisting,

but Coakley continued to try to get up from the ground. Officer Felton then told Coakley that

he was going to tase him if he did not stop struggling. Coakley continued to struggle, and

Officer Felton tased him two times before he stopped resisting and could be handcuffed.

        The officers called for an ambulance to treat Coakley’s wounds. Medics treated

Coakley on the scene before transporting him to the hospital. While the officers were

waiting outside with Coakley, he continued to yell and curse at them and threatened to sue

them.

        The State charged Coakley with battery by body waste as a Class D felony, resisting

law enforcement as a Class A misdemeanor, and interference with the reporting of a crime, as

a Class A misdemeanor. The State ultimately dismissed the count alleging interference with

the reporting of a crime. At the conclusion of a jury trial, Coakley was acquitted of the count

alleging battery by body waste, but was convicted of resisting law enforcement. Coakley

now appeals. Additional facts will be added as necessary.

                                              4
                             DISCUSSION AND DECISION

                              I. Sufficiency of the Evidence

       Coakley challenges the sufficiency of the evidence supporting his conviction for

resisting law enforcement. When reviewing the sufficiency of the evidence, we consider

only the probative evidence and reasonable inferences supporting the verdict. Mork v. State,

912 N.E.2d 408, 411 (Ind. Ct. App. 2009). We do not reweigh the evidence or reassess

witness credibility. Id. We consider conflicting evidence most favorable to the trial court’s

ruling. Id. We will affirm the conviction unless no reasonable fact-finder could find the

elements of the crime proven beyond a reasonable doubt. Id.

       In order to establish that Coakley had committed the offense of resisting law

enforcement as a Class A misdemeanor, the State was required to prove as follows:

       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 § 35-44-3-3-(a)(1). The jury found that the State had met its burden of proof, and

we agree.

       In Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993), the Supreme Court found that

the evidence was not sufficient to support a defendant’s conviction of resisting law

enforcement absent any evidence of strength, power, or violence or any movement or

threatening gesture directed toward the law enforcement official. Later, in Ajabu v. State,

704 N.E.2d 494, 495 (Ind. Ct. App. 1998), a panel of this court found that the evidence was

insufficient to establish that the defendant acted forcibly, where the defendant did nothing


                                              5
more than stand his ground. In Ajabu, the evidence of resistance was the defendant’s refusal

to release a flag to the police officer, twisting and turning a little as he held on to the flag. Id.

at 496.

          In Guthrie v. State, 720 N.E.2d 7, 9 (Ind. Ct. App. 1999), trans. denied (2000), a panel

of this court disagreed with Guthrie’s argument that he passively resisted arrest and found

that sufficient evidence existed to sustain his conviction for forcibly resisting arrest. There,

Guthrie was arrested and transported to lockup where he refused to exit the vehicle, and

refused to stand after he was physically removed from the vehicle. Guthrie leaned back and

kept his legs straight, forcing the officers to carry him to the receiving area. We held that

Guthrie applied some force, which required the officers to exert force to counteract Guthrie’s

acts of resistance. Id. at 8. Likewise, in Johnson v. State, 833 N.E.2d 516, 518-19 (Ind. Ct.

App. 2005), this court affirmed the defendant’s conviction based on the defendant’s acts of

turning and pushing away from the officers and stiffening up when the officers attempted to

place him into a transport vehicle. In Johnson, this court acknowledged that the definition of

“forcibly resist” as defined in Spangler, was “moderated,” or relaxed. Id. at 519.

          Spangler seems to require some threatening gesture or movement toward the law

enforcement officer, yet later cases have relaxed the definition of “forcibly.” See Johnson,

833 N.E.2d at 519; Guthrie, 720 N.E.2d at 9. Those later cases have, instead, required the

exertion of force by the law enforcement officer in response to the defendant’s acts in

resistance, and in order to compel the arrestee’s compliance with being handcuffed.

Furthermore, this court has held that Indiana Code section 35-44-3-3 does not demand an

overly strict definition of “forcibly resist.” See Johnson, 833 N.E.2d at 519.

                                                 6
       Here, the evidence cited above clearly is sufficient to support Coakley’s conviction.

Coakley yelled at, argued with, and spat on Officer Arnold, who was at the residence to calm

down the domestic dispute. Officer Arnold told Coakley that he was placing him under

arrest and ordered Coakley to turn around so that he could be handcuffed. When Officer

Arnold reached for Coakley’s wrist, however, Coakley pulled away from the officer. Officer

Arnold then grabbed Coakley’s shoulder in an attempt to turn him around, but Coakley bent

forward and started to charge both officers. Officer McCarran grabbed Coakley’s upper

body, but began falling backwards down the stairs before he could catch himself. Coakley

changed directions and lunged toward the open door to the garage.

       Coakley’s head went through a glass window, as did Officer McCarran’s right arm.

As a result of this, Coakley was bleeding profusely from a wound to his head, and Officer

McCarran was bleeding from the wounds to his arm. Coakley, however, continued to refuse

to allow the officers to handcuff him. The officers yelled at Coakley to stop resisting, but

Coakley continued to try to get up off the ground. Officer Felton then told Coakley that he

was going to tase him if he did not stop struggling. Coakley continued to struggle, and

Officer Felton tased him two times before he stopped resisting and could be handcuffed.

       Coakley argues that the evidence at trial showed that he pulled his hand back and

away from Officer Arnold’s face after being told that he was being placed under arrest. He

characterizes that behavior as compliant instead of non-compliant. He then contends that any

other lunging action or action that led to Officer McCarran’s arm and Coakley’s head going

through the glass pane in the window was the result of Coakley’s involuntary reaction from

being tased. This, however, is merely a request for us to reweigh the evidence, a task we will

                                              7
not do. See Mork, 912 N.E.2d at 411. We conclude that the evidence, viewed consistently

with our standard of review, was sufficient to support the conviction.

                                           II. Oath

       Coakley argues that he was denied his right to a fair jury trial and the right to confront

witnesses against him because of a defect in the manner in which the witnesses were sworn

in by the trial court. In particular, Coakley asserts that the trial court erred by failing to ask

each witness whether he or she preferred to “affirm” rather than “swear” to tell the truth.

       The record reveals that the trial court gave the following oath to each witness:

       Do you solemnly swear the testimony you’re about to give will be the truth, the
       whole truth and nothing but the truth, so help you God?

Supp. Tr. at 3-5.

       The State correctly notes that Coakley failed to object to the manner in which the

witnesses were sworn during trial. The failure to object to an alleged error at trial results in

waiver of the issue on appeal. Mitchell v. State, 726 N.E.2d 1228, 1235 (Ind. 2000).

Therefore, this issue has been waived for purposes of appellate review on that ground.

However, a defendant can escape waiver of an issue for failure to object if the claimed error

is fundamental error. Charlton v. State, 702 N.E.2d 1045, 1051 (Ind. 1998). In this case,

Coakley claims that the error is structural error that compels reversal of his conviction as it

defies harmless error analysis, and cites to both the Sixth Amendment to the United States

Constitution and Article I, section 13 of the Indiana.

       “The ‘fundamental error’ exception is extremely narrow, and applies only when the

error constitutes a blatant violation of basic principles, the harm or potential for harm is


                                                8
substantial, and the resulting error denied the defendant fundamental due process.” Mathews

v. State, 849 N.E.2d 578, 587 (Ind. 2006). The Indiana Constitution provides that “[t]he

mode of administering an oath or affirmation, shall be such as may be most consistent with,

and binding upon, the conscience of the person, to whom such oath or affirmation may be

administered.” Ind. Const. art. I § 8.

       Further, the Indiana Rules of Evidence provide as follows:

       Before testifying, every witness shall swear or affirm to testify to the truth, the
       whole truth, and nothing but the truth. The mode of administering an oath or
       affirmation shall be such as is most consistent with, and binding upon the
       conscience of the person to whom the oath is administered.

Ind. Evidence Rule 603. The provision in the Federal Rules of Evidence is similar in

content. See Fed. R. Evid. 603 (“Before testifying, every witness shall be required to declare

that the witness will testify truthfully, by oath or affirmation administered in a form

calculated to awaken the witness’s conscience and impress the witness’s mind with the duty

to do so.”).

       Coakley acknowledges the holding of United States v. Babul, 476 F.3d 498, 500-01

(7th Cir. 2007), that defense counsel may waive the requirement that testimony be taken

under oath. However, Coakley argues that defense counsel may not waive that requirement

as to every witness. We note that such is not the case here, where each witness received an

oath, unlike in Babul, where one witness did not receive an oath prior to testifying. We thus

disagree with Coakley’s characterization that he was denied of his right to confront witnesses

against him, as all testimonial evidence in this case was presented under oath. What was

waived here was the challenge to the form of the oath administered. Coakley has failed to


                                               9
demonstrate how the form of the oath administered by the trial court constituted fundamental

error. Thus, the issue is waived.

       Affirmed.

BARNES, J., and BRADFORD, J., concur.




                                            10
