Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not
be regarded as precedent or cited
                                                                       Aug 20 2014, 9:32 am
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:

SUZY ST. JOHN                                    GREGORY F. ZOELLER
Indianapolis, Indiana                            Attorney General of Indiana

                                                 JUSTIN F. ROEBEL
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

SIMONE SMITH,                                    )
                                                 )
        Appellant-Defendant,                     )
                                                 )
               vs.                               )       No. 49A02-1401-CR-21
                                                 )
STATE OF INDIANA,                                )
                                                 )
        Appellee-Plaintiff.                      )


                        APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Kimberly J. Brown, Judge
                               Cause No. 49F07-1306-CM-38686


                                       August 20, 2014

                 MEMORANDUM DECISION – NOT FOR PUBLICATION

BARNES, Judge
                                    Case Summary

       Simone Smith appeals her conviction for Class A misdemeanor resisting law

enforcement. We affirm.

                                          Issue

       Smith raises one issue, which we restate as whether the evidence is sufficient to

sustain her conviction.

                                          Facts

       On June 12, 2013, Officer Vincent Stewart of the Indianapolis Metropolitan Police

Department was on patrol when he saw a maroon Hyundai with heavily tinted windows.

Officer Stewart was unable to see the vehicle’s occupants because of the tinting, and he

initiated a traffic stop. Smith was the driver of the vehicle, a male was in the passenger

seat, and Smith’s infant was in the backseat. Officer Stewart asked Smith for her license

and registration, but she ignored him and immediately made a call on her cell phone.

Smith eventually identified herself, and Officer Stewart learned that Smith was driving

with an expired learner’s permit. At that time, Officers Ryan Gootee and Thomas White

arrived to assist Officer Stewart. When Officer Stewart explained to Smith that he would

be impounding the vehicle and issuing a summons to her, Smith became “agitated” and

said, “this [is] some bulls**t.” Tr. p. 15. Officer Stewart asked her to sign the summons,

and Smith “snatched” the pen out of his hand. Id. at 16. Officer Gootee described Smith

as “very hostile,” using “vulgar” language, and “very uncooperative.” Id. at 38.

       Officer Stewart told Smith that she could retrieve her personal items from the

vehicle. Smith continued removing her possessions until the tow truck driver arrived. At

                                            2
that time, Officer Stewart told Smith that she needed to get out of the vehicle. Smith

continued to say, “this is f***ked up and this is bulls**t,” and to use other “foul

language.” Id. at 17, 19. After Officer Stewart told her repeatedly to exit the vehicle,

Officer Stewart and Officer Gootee approached Smith to remove her from the vehicle.

Officer Stewart tried to grab her wrist, but Smith “immediately yanked back very

forcefully.” Id. at 19. Officer Stewart again tried to grab Smith’s wrist, but Smith

“grabbed away” and scratched Officer Stewart hard enough to cause bleeding.                 Id.

Officer Gootee then tried to grab Smith, and Smith “squared up” and clinched her fists.

Id. at 20. The officers believed that Smith was getting ready to fight them. Officer

Stewart told Smith not to resist, used his taser on her, and arrested her.

          The State charged Smith with Class A misdemeanor resisting law enforcement for

“knowingly or intentionally forcibly resist[ing], obstruct[ing] or interfere[ing]” with the

officers while the officers were lawfully engaged in their duties. App. p. 18. The State

also charged Smith with Class A misdemeanor driving while suspended and Class C

misdemeanor operating a vehicle having never received a license. After a bench trial, the

trial court found Smith guilty as charged and sentenced her to an aggregate sentence of

365 days suspended to probation. Smith now appeals.

                                                 Analysis

          Smith argues that the evidence is insufficient to sustain her conviction for Class A

misdemeanor resisting law enforcement.1                   When reviewing the sufficiency of the


1
    Smith does not challenge her other convictions.


                                                      3
evidence needed to support a criminal conviction, we neither reweigh evidence nor judge

witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider

only the evidence supporting the judgment and any reasonable inferences that can be

drawn from such evidence.” Id. We will affirm if there is substantial evidence of

probative value such that a reasonable trier of fact could have concluded the defendant

was guilty beyond a reasonable doubt. Id.

       At the time of Smith’s arrest, Indiana Code Section 35-44.1-3-1(a), which

governed the offense of resisting law enforcement, provided: “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.”2

Smith argues that the evidence is insufficient to establish forcible resistance.

       Our supreme court has held that “one ‘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.” Walker v. State, 998 N.E.2d 724, 726-27 (Ind. 2013)

(citing 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 (citing

Spangler, 607 N.E.2d at 724). However, the “force involved need not rise to the level of

mayhem.’” Id. (quoting Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009)). “In fact,


2
 The statute was later amended. See P.L.172-2013, § 11 (eff. July 1, 2013), P.L.158-2013, § 509 (eff.
July 1, 2014), and P.L.168-2014, § 80 (eff. July 1, 2014).
                                                 4
even a very ‘modest level of resistance’ might support the offense.”           Id. (quoting

Graham, 903 N.E.2d at 966).

       Whether a defendant’s actions are “forcible” is an issue that is “necessarily fact-

sensitive.” Id. at 727.

              [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 officer’s ability to lawfully execute his or her
              duties.

Id.

       In support of her argument, Smith relies on our supreme court’s opinion in K.W.

v. State, 984 N.E.2d 610 (Ind. 2013). In K.W., our supreme court found 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 officer’s] grasp on his

wrist.” K.W., 984 N.E.2d at 611. On the other hand, the State relies on J.S. v. State, 843

N.E.2d 1013 (Ind. Ct. App. 2006), trans. denied, and Lopez v. State, 926 N.E.2d 1090

(Ind. Ct. App. 2010), trans. denied. In J.S., an officer was attempting to separate two

juveniles in a fight when one juvenile tried to pull away and jerk away from him. As he


                                             5
tried to handcuff her, the juvenile kept “flailing her arms,” “squirming her body,” and

“making it impossible for him to hold her hands.” J.S., 843 N.E.2d at 1015. We held

that the evidence was sufficient to sustain her conviction for resisting law enforcement.

In Lopez, as officers tried to handcuff the defendant, he tried pulling away, refused to put

his hands behind his back, and was “lying on his hands” to prevent the officers from

handcuffing him. Lopez, 926 N.E.2d at 1091. We held that the evidence was sufficient

to show forcible resistance.

       We also note that, in Walker, 998 N.E.2d at 726, the defendant did not obey an

officer’s order to stop fighting. Instead, he turned toward the officer and started walking

toward him with his fists clenched in an aggressive manner and raised at one point. The

defendant ignored repeated warnings and orders and got close to the officer. As a result,

the officer used his taser on the defendant. Our supreme court held that this evidence was

sufficient to show forcible resistance, obstruction, or interference with the officer.

       We conclude that Smith’s conduct is more like that in Walker, J.S., and Lopez,

than the conduct in K.W.       In K.W., the juvenile merely pulled away from the officer’s

grasp. Here, Smith repeatedly refused Officer Stewart’s orders to get out of the vehicle.

When Officer Stewart tried to grab her wrist, she repeatedly yanked back forcefully. At

one point, she scratched the officer hard enough to draw blood. Then, she “squared up”

and clinched her fists, leading the officers to believe that she was going to fight them. Tr.

p. 20. The officers then used a taser on her. This conduct is more than merely pulling

away from the officer’s grasp. We conclude that the evidence is sufficient to show that

Smith forcibly resisted.

                                              6
                                        Conclusion

      The evidence is sufficient to sustain Smith’s conviction for Class A misdemeanor

resisting law enforcement. We affirm.

      Affirmed.

BRADFORD, J., and BROWN, J., concur.




                                            7
