FOR PUBLICATION


                                                 May 29 2014, 10:23 am




ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:
TIMOTHY J. BURNS                             GREGORY F. ZOELLER
Indianapolis, Indiana                        Attorney General of Indiana

                                             KARL M. SCHARNBERG
                                             Deputy Attorney General
                                             Indianapolis, Indiana



                            IN THE
                  COURT OF APPEALS OF INDIANA

BETTY WOODS,                                 )
                                             )
      Appellant-Defendant,                   )
                                             )
         vs.                                 )       No. 49A02-1309-CR-805
                                             )
STATE OF INDIANA,                            )
                                             )
      Appellee-Plaintiff.                    )

                   APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Amy Jones, Judge
                         Cause No. 49F08-1302-CM-011603


                                    May 29, 2014
                             OPINION – FOR PUBLICATION

MATHIAS, Judge
          Betty Woods (“Woods”) was convicted in Marion Superior Court of Class A

misdemeanor resisting law enforcement and Class B misdemeanor disorderly conduct.

Woods appeals and challenges the sufficiency of the evidence supporting both

convictions.

          We affirm in part and reverse in part.

                                Facts and Procedural History

          On February 19, 2013, at approximately 10:00 a.m., Woods was attempting to

purchase a few slices of deli meat at a Citgo Station near the corner of 25th Street and

College Avenue. The store owner, Sam Badri (“Badri”) informed Woods that deli meat

was only sold in half-pound or pound quantities, and Woods became irate. Woods

shouted and cursed at Badri and stationed herself by the entrance to the business to

complain about the situation to other customers.

          Badri asked Woods to leave the store and she refused; therefore, Badri called the

police.     Indianapolis Metropolitan Police Officer Gregory Taylor (“Officer Taylor”)

responded to the report of a disturbance at the Citgo Station. Officer Taylor observed

Woods standing in the entrance yelling and cursing at the employees while also speaking

on her cell phone. Officer Taylor asked Woods to quiet down and step away from the

door, and Woods responded, “I don’t have to. I talk loud. It’s just the way I am.” Tr. p.

17.

          Officer Taylor was able to coax Woods a few feet away from the doorway, but she

continued to shout. Therefore, Officer Taylor told her that she was being placed under

arrest for disorderly conduct. Woods started to walk away from Officer Taylor and

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continued to walk from the officer after he told her to stop. Officer Taylor then “rushed”

after Woods and grabbed her wrist. Id. at 19. Officer Taylor told Woods once again to

stop. When she attempted to pull away from the officer, Officer Taylor twisted “her

wrist a little bit then push[ed] her up against the building with [his] left forearm[.]” Id. at

20. Officer Taylor told Woods to stop, or he would place her under arrest for resisting

law enforcement. Woods then relaxed her arms and Officer Taylor was able to place her

in handcuffs. 1

       Woods was subsequently charged with two counts of Class A misdemeanor

resisting law enforcement and one count of Class B misdemeanor disorderly conduct. A

bench trial was held on September 4, 2013. The trial court found Woods guilty of one

count of Class A misdemeanor resisting law enforcement2 and Class B misdemeanor

disorderly conduct. Woods was sentenced to an aggregate term of 365 days with 363

days suspended to probation. Woods now appeals challenging the sufficiency of the

evidence to support her convictions.

                                       Standard of Review

       When we review a challenge to the sufficiency of the evidence, we neither

reweigh the evidence nor judge the credibility of witnesses. Chappell v. State, 966

N.E.2d 124, 129 (Ind. Ct. App. 2012) (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind.


1
  We are troubled by the State’s decision to charge Woods with resisting law enforcement in light of
Officer Taylor’s promise to Woods and her immediate compliance with the officer in reliance on his
promise. Public trust and confidence in our criminal justice system is eroded by small decisions such as
this.
2
  Woods was found not guilty of the second count of resisting law enforcement which alleged that she
fled from Officer Taylor after he ordered her to stop.
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2005)), trans. denied. Rather, we consider only the probative evidence supporting the

conviction and the reasonable inferences to be drawn therefrom.        Id.   If there is

substantial evidence of probative value from which a reasonable trier of fact could have

drawn the conclusion that the defendant was guilty of the crime charged beyond a

reasonable doubt, then the judgment will not be disturbed. Baumgartner v. State, 891

N.E.2d 1131, 1137 (Ind. Ct. App. 2008).

                                I. Disorderly Conduct

       To convict Woods of Class B misdemeanor disorderly conduct, the State was

required to prove that she recklessly, knowingly, or intentionally made unreasonable

noise and continued to do so after being asked to stop. Ind. Code § 35-45-1-3(a)(2); see

also Appellant’s App. p. 18. “[T]he criminalization of ‘unreasonable noise’ was ‘aimed

at preventing the harm which flows from the volume of noise.” Whittington v. State, 669

N.E.2d 1363, 1367 (Ind. 1996) (quoting Price v. State, 622 N.E.2d 954, 966 (Ind. 1993),

reh’g denied). Noise is considered unreasonable if it is too loud for circumstances that

exist at the time. Id.

       Officer Taylor testified that when he arrived at the Citgo station, Woods was

agitated and yelling at the Citgo employees. She was also yelling at the person she was

speaking to on her cell phone. Woods was asked to quiet down three or four times, but

she continued to shout. Tr. p. 17. Individuals standing outside the Citgo station had

stopped to observe Woods and Officer Taylor. Badri testified that Woods was yelling

“very loud.” Tr. p. 7. For these reasons, we conclude that the trial court reasonably

inferred that Woods recklessly, knowingly or intentionally made unreasonable noise and

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continued to do so after Officer Taylor asked her to stop. We therefore affirm Woods’

Class B misdemeanor disorderly conduct conviction.

                              II. Resisting Law Enforcement

       Indiana Code section 35-44.1-3-1 provides in relevant part 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 resisting law enforcement.” Woods argues that the State

failed to prove that she “forcibly” resisted.

       “Forcibly” is an essential element of the crime, and therefore, the State must prove

forcible resistance, forcible obstruction, or forcible interference. Walker v. State, 998

N.E.2d 724, 726 (Ind. 2013). Forcibly means “something more than mere action.” Id.

(citation omitted). “‘[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.’” Id. at 726-27 (quoting Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993)).

“‘[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 727 (quoting Spanger, 607 N.E.2d at 724).

       However, “‘the statute does not demand complete passivity.’” Id. (quoting K.W. v.

State, 984 N.E.2d 610, 612 (Ind. 2013)). “The force involved need not rise to the level of

mayhem.” Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009). A very “modest level of

resistance” might support the offense. Walker, 998 N.E.2d at 727 (citing Graham, 903



                                                5
N.E.2d at 966 (stating “even ‘stiffening’ of one’s arms when an officer grabs hold to

position them for cuffing would suffice”).

       In Walker, our supreme court summarized its interpretation of the term “forcibly”

as follows:

       [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.

Id.

       In Graham, our supreme court reversed a resisting law enforcement conviction

where the defendant was convicted for refusing to present his arms for handcuffing. 903

N.E.2d at 965-66. But the court also observed that “‘stiffening’ of one’s arms when an

officer grabs hold to position them for cuffing” constitutes “forcible resistance.” Id. at

966. The court cited with approval our court’s opinion in Johnson v. State, 833 N.E.2d

516, 517 (Ind. Ct. App. 2005), wherein we concluded that the defendant “forcibly resisted”

by pushing away from the officer with his shoulders and stiffening up when the officers

attempted to place the defendant in a police vehicle.

       Relying on Graham, our court reversed a resisting law enforcement conviction in

Berberena v. State, 914 N.E.2d 780 (Ind. Ct. App. 2009), trans. denied. In that case, the

officer ordered the defendant to place his hands behind his back, and when the defendant


                                             6
did not comply, the officer pushed the defendant against the wall of a building. The

officer then engaged in a brief struggle with the defendant to grab his hands and place

them in handcuffs. However, there was no evidence that the “defendant stiffened his

arms or otherwise ‘made threatening or violent actions’ to contribute to” the brief

struggle. Id. at 782. Therefore, we concluded that “[b]ecause there was no evidence that

Berberena’s opposition was forceful rather than merely difficult, the evidence is

insufficient to support his conviction.” See also Colvin v. State, 916 N.E.2d 306, 309

(Ind. Ct. App. 2009), trans. denied (reversing a resisting law enforcement conviction

because the “evidence [did] not support a reasonable inference that Colvin did more than

passively resist the officers”); Ajabu v. State, 704 N.E.2d 494, 495-96 (Ind. Ct. App.

1998) (reversing a resisting law enforcement conviction where the defendant resisted by

twisting and turning from the officer as he held onto his flag, even after he was maced,

and failed to let go of the flag until after the officer dragged him approximately eight to

ten feet, but there was no evidence that Ajabu acted forcibly because he made no

threatening or violent actions toward the police).

       In this case, the following testimony was elicited to describe the level of force

Woods used against Officer Taylor. Badri testified that Woods “tried to push the officer

and tried to not . . . be arrested to put the handcuff on her.” Tr. p. 9. Officer Taylor

testified:

       [O]nce I grabbed her by the wrist I then told her to stop. She kind of turned
       away . . . she turned away at first then turned towards me. I then started to
       twist on her wrist a little bit and then push her up against the building with
       my left forearm as I had a hold of her right wrist with my right hand. I told


                                             7
         her, “Stop. don’t do this or I will place you under arrest for resisting your
         law enforcement.”

Id. at 20. When asked to more specifically describe the “actual physical interaction”

between himself and Woods, Officer Taylor stated:

         As I grabbed her wrist she turns . . . she pulls away from me then as she
         pulls away she turns around and starts facing towards me and then that’s
         when I started to push my left forearm in the middle of her back and push
         her up against the wall slightly an once we were there I informed her that
         she needs to stop what she’s doing otherwise I was gonna place her under
         arrest for resisting law enforcement at which time she finally complies and
         I placed her in handcuffs. She relaxed her arms at that point in time and
         then that was when I was able to secure her in handcuffs.

Id. at 21. Further, the officer testified that he used a “wristlock twisted fairly sternly” and

“a portion of [his] body weight to push her up against the building.” Id. The trial court

concluded that Officer Taylor’s testimony established that Woods “forcibly resisted.” Id.

at 36.

         We disagree. The evidence establishes only that Woods pulled on her wrist after

Officer Taylor initially grabbed it and started to turn toward the officer. The officer

easily subdued Woods by twisting her “wrist a little bit” and pushing her “up against the

wall slightly” with his left forearm in her back. Tr. pp. 20-21. It was at this point that

Officer Taylor promised Woods that she would not face a charge of resisting law

enforcement if she cooperated, and Woods immediately chose to cooperate with the

officer. There is no evidence Woods acted “forcibly.” Her response to Officer Taylor’s

announcement of her impending arrest did not even approach use of the “strong, powerful

or violent means” described in Walker.         Indeed, Woods immediately cooperated in

reliance on Officer Taylor’s promise. Under these facts and circumstances, the evidence

                                              8
is insufficient to support her conviction for Class A misdemeanor resisting law

enforcement. See Berberena, 914 N.E.2d at 783.

                                      Conclusion

      The evidence is sufficient to support Woods’ disorderly conduct conviction.

However, the State presented insufficient evidence to prove that Woods’ “forcibly”

resisted law enforcement.    We therefore reverse Woods’ resisting law enforcement

conviction.

      Affirmed in part and reversed in part.

FRIEDLANDER, J., and PYLE, J., concur.




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