Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any               Jan 29 2014, 10:27 am
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:

BARBARA J. SIMMONS                              GREGORY F. ZOELLER
Oldenburg, Indiana                              Attorney General of Indiana

                                                CYNTHIA L. PLOUGHE
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

RYAN BAILEY,                                    )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )        No. 49A02-1305-CR-419
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Linda E. Brown, Judge
                           Cause No. 49F10-1204-CM-25027



                                     January 29, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

BAKER, Judge
        Appellant-defendant Ryan Bailey appeals his conviction for Resisting Law

Enforcement,1 a class A misdemeanor, challenging the sufficiency of the evidence.

Bailey argues that the State failed to establish that he acted forcibly toward the officers or

interfered with the execution of their duties. Bailey points out that at no time did he

threaten physical violence or use “more than a passive resistance with the officers.”

Appellant’s Br. p. 5.

        Concluding that Bailey’s actions toward the arresting officer, which included

twisting and pulling away from the officer in a violent manner and trying to pull free

from him, constituted forcible resistance within the meaning of the resisting law

enforcement statute, we affirm the judgment of the trial court.

                                               FACTS

        On April 14, 2012, Officer Craig Anderson of the Indianapolis Metropolitan

Police Department (IMPD) was on patrol. At some point, he and several other officers

were dispatched to an area regarding the report of a man causing a disturbance. When

Officer Anderson arrived at the scene, he was flagged down by Bailey’s father, Michael,

who was on top of his son. Michael told the officers that he was trying to control his son,

who was “struggling” with his father and “yelling and screaming, and cursing.” Tr. p. 8.

As one of the officers approached, he noticed that Bailey’s eyes were “very glassy and




1
 Ind. Code § 35-44.1-3-1(a)(1). At the time of the arrest and trial, this offense was codified at Indiana
Code section 35-44-3-3. There was no change to the substance of the statute when it was recodified to its
current location.
                                                   2
bloodshot” and the odor of alcoholic beverage was emanating from him. Id. at 8-9. As a

result, Officer Anderson decided to arrest Bailey for public intoxication.

       After Bailey was handcuffed, he eventually stood up and started walking with

Officer Anderson toward the curb. However, at some point, Bailey “started twisting and

pulling away from [the officer] violently and tried to pull free from him.” Id. Officer

Anderson ordered Bailey to stop resisting, but Bailey “continued to try to pull away.” Id.

at 10. Finally, Officer Anderson swept Bailey’s feet out from under him and placed

Bailey back onto the ground. Bailey continued to “thrash and kick” while cursing and

threatening both Officer Anderson and his father.          Id. at 10.    Officer Anderson

subsequently stated that Bailey “fought the entire time” and when the police wagon

arrived and Bailey was escorted inside, leg shackles had to be placed on him. When

Bailey was secured in the wagon, he “began kicking the inside of the wagon and banging

on the inside of the wagon.” Id.

       As a result of the incident, Bailey was charged with resisting law enforcement, a

class A misdemeanor. Following a bench trial which concluded on February 20, 2012,

the trial court found Bailey guilty as charged and was later sentenced. Bailey now

appeals.

                                DISCUSSION AND DECISION

       As noted above, Bailey challenges the sufficiency of the evidence, claiming that

his conviction must be set aside because he was never violent with the police officers and

only passively resisted them.

                                             3
       We do not reweigh evidence or reassess the credibility of witnesses when

reviewing a conviction for the sufficiency of the evidence. Walker v State, No. 49S02-

1312-CR-804, slip op. at 3 (Ind. Dec. 12, 2013). We view all evidence and reasonable

inferences drawn therefrom in a light most favorable to the conviction, and will affirm 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. Id.

       A person commits the crime of resisting law enforcement when he or she

“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.” Ind. Code § 35-44.1-3-1(a)(1).

       Recently, in Walker, our Supreme Court noted that in Graham v. State, “the force

involved need not rise to the level of mayhem.” 903 N.E.2d 963, 965 (Ind. 2009). More

particularly, it was observed that even a very “modest level of resistance” might support

the offense. Id. at 966 (noting that even stiffening of one’s arms when an officer grabs

hold to position them for cuffing would suffice). The Walker court further determined

that

             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.

Slip op. at 5-6 (emphasis added).

                                            4
       In Walker, it was determined that the evidence was sufficient to support the

defendant’s conviction for resisting law enforcement when it was established that the

defendant refused the police officers’ repeated orders to lay on the ground and advanced

aggressively, with his fists clenched, to within a few feet of the police officer. Slip op. at

8.

       In this case, the evidence demonstrated that Bailey’s acts were indeed strong and

powerful and focused against Officer Anderson’s efforts to perform his official duty of

arresting Bailey for public intoxication. Tr. p. 9. As noted above, Officer Anderson

testified that Bailey started “twisting and pulling away” from him and was doing so

“violently” as they were walking toward the curb. Id. Even after Officer Anderson

forced Bailey to the ground, he continued to “thrash and kick,” curse, and threaten the

officer and his father. Id. at 10.

       In our view, these are not actions of an individual who is passively submitting to

arrest. Bailey did much more than simply refuse to assist in the placement of handcuffs

on his hands. Thus, we conclude that the evidence was sufficient to support Bailey’s

conviction for resisting law enforcement.

       The judgment of the trial court is affirmed.

NAJAM, J., and CRONE, J., concur.




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