MEMORANDUM DECISION
                                                                                FILED
Pursuant to Ind. Appellate Rule 65(D),                                     Mar 20 2017, 8:52 am
this Memorandum Decision shall not be
                                                                                CLERK
regarded as precedent or cited before any                                   Indiana Supreme Court
                                                                               Court of Appeals
court except for the purpose of establishing                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian R. Chastain                                        Curtis T. Hill, Jr.
Dillman, Chastain, Byrd, LLC                             Attorney General of Indiana
Corydon, Indiana
                                                         Ian McLean
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Michael Cox,                                       March 20, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         36A01-1604-CR-896
        v.                                               Appeal from the Jackson Superior
                                                         Court
State of Indiana,                                        The Honorable Bruce Markel, III,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         36D01-1505-CM-498



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017                Page 1 of 10
[1]   James Michael Cox appeals his convictions of Class A misdemeanor resisting

      law enforcement;1 Class A misdemeanor possession of paraphernalia; 2 and

      Class B misdemeanor possession of marijuana.3 Cox presents three issues for

      our consideration, which we restate as:


                 1. Whether Cox’s convictions were barred by Indiana’s
                 Religious Freedom Restoration Act (“RFRA”);


                 2. Whether the State presented sufficient evidence to prove Cox
                 committed Class A misdemeanor resisting law enforcement; and


                 3. Whether the State presented sufficient evidence to prove Cox
                 committed Class A misdemeanor possession of paraphernalia.


      We affirm.



                                Facts and Procedural History
[2]   On May 15, 2015, Officer Michael Payne initiated a traffic stop on Cox’s

      vehicle based on Officer Payne’s observation of a burnt-out license plate light

      on Cox’s vehicle. Officer Payne noticed the vehicle displayed a license plate

      from 1969 and called dispatch to check the plate number. The plate number

      returned different vehicle information than the stopped vehicle.




      1
          Ind. Code § 35-44.1-3-1(a)(1) (2014).
      2
          Ind. Code § 35-48-4-8.3(a)(1) (2014).
      3
          Ind. Code § 35-48-4-11(a)(1) (2014).


      Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017   Page 2 of 10
[3]   Officer Payne approached the driver’s side of the vehicle and spoke with the

      driver, later identified as Cox. Officer Payne smelled alcohol and noted open

      bottles on the floorboard of Cox’s vehicle. Officer Payne asked Cox if he had

      been drinking, and Cox indicated he had not. Officer Payne attempted to read

      the vehicle’s Vehicle Identification Number (“VIN”). While he was trying to

      read the number, Officer Payne noticed Cox reached into the right front pocket

      of Cox’s pants. Officer Payne testified the movement was consistent with

      someone who was trying to conceal an item or reach for a weapon.


[4]   Officer Payne asked Cox to exit the vehicle, and Cox refused. Officer Payne

      opened the door and pulled Cox’s left arm to remove him from the truck.

      Officer Payne pulled Cox’s left arm two or three more times, but Cox was using

      his right arm to “sturdy [sic] himself on the steering wheel actively resisting

      [Officer Payne] getting him out of the vehicle.” (Tr. at 11.) Cox eventually

      exited the vehicle, and Officer Payne handcuffed him.


[5]   Officer Payne searched Cox’s pocket and found a package of rolling papers and

      a hand-rolled marijuana cigarette. When asked about the marijuana cigarette,

      Cox replied, “So what that’s mother fucking religious[.]” (Id. at 18.) Cox’s

      vehicle was impounded and inventoried. The inventory revealed a large glass

      jar with marijuana in it, a digital scale, and a package of salve which contained

      Tetrahydrocannabinol (“THC”), a chemical found in marijuana. On May 29,

      2015, the State charged Cox with Class A misdemeanor resisting law

      enforcement, Class B misdemeanor possession of marijuana, and Class A

      misdemeanor possession of paraphernalia.

      Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017   Page 3 of 10
[6]   Cox represented himself throughout the proceedings.4 On September 11, 2015,

      Cox filed correspondence with the court asking for dismissal of the charges

      against him. In it, he argued the resisting law enforcement charge violated his

      “[r]ight to travel and transport his property upon the public highways in the

      ordinary course of life and business.” (App. Vol. II at 48.) He also argued the

      possession of marijuana charge violated his “Right to Freedoms of Thought,

      Conscience, Opinion & Expression.” (Id. at 53.) The trial court denied his

      motion to dismiss. On December 8, 2015, the trial court held a bench trial and

      found Cox guilty as charged.5



                                     Discussion and Decision
                                             I. Cox’s RFRA Arguments

      Indiana Code Section 34-13-9-8, also referred to as RFRA, states:


                 (a) Except as provided in subsection (b), a governmental entity
                 may not substantially burden a person’s exercise of religion, even
                 if the burden results from a rule of general applicability.




      4
        Cox represented himself before the trial court despite the trial court’s admonishment that “[Cox] would be
      well advised to hire an attorney to represent him in this matter. If he cannot afford one, he should apply for
      pauper counsel.” (App. Vol. II at 56.) It is well-settled pro se litigants are “held to the same standard as
      trained counsel.” Ross v. State, 877 N.E.2d 829, 833 (Ind. Ct. App. 2007), trans. denied.
      5
          The trial court also granted Cox’s motion to file a belated appeal. Cox filed his appeal on April 25, 2016.


      Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017                 Page 4 of 10
        (b) A governmental entity may substantially burden a person’s
        exercise of religion only if the governmental entity demonstrates
        that application of the burden to the person:


                (1) is in furtherance of a compelling governmental interest;
                and


                (2) is the least restrictive means of furthering that
                compelling governmental interest.


As part of his Summary of Argument on appeal, Cox argues:

        Mr. Cox contends that as a natural born citizen, he has a
        constitutional right to freely hold any belief or view he chooses
        and that the government cannot interfere with his views or his
        ability to express those views.


        Mr. Cox contends that as a natural born citizen, he has a
        constitutional right to freely move upon earth, more specifically
        in this case, to freely move upon a public road. The government
        has no authority to remove a right except through due process
        and its police powers.


        Further, Mr. Cox relies upon any statutory law that grants him a
        similar right as the constitution, more specifically the Religious
        Freedom Restoration Act.


(Br. of Appellant at 8.) In his argument section, Cox reiterates the statements in

his Summary of Argument, makes disjointed arguments about the issues, and

cites very little case and statutory law to support his argument, and thus it is

waived. See Indiana Appellate Rule 46(A)(8)(a) (requiring each issue presented

by appellant to be “supported by cogent reasoning . . . [and] supported by

Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017   Page 5 of 10
      citations to authorities [and] statutes[.]”); and see Matheney v. State, 688 N.E.2d

      883, 907 (Ind. 1997) (failure to make a cogent argument supported by citation

      to authority waives issue on appeal), reh’g denied, cert. denied.


[7]   Waiver notwithstanding, while Cox seemingly presented some of these issues to

      the trial court in a pre-trial correspondence that the trial court accepted as a

      variety of motions, he did not, in that correspondence, argue these rights under

      RFRA, as he does on appeal. Thus, we are unable to address the application of

      RFRA to the charges against Cox on appeal. See Goodner v. State, 685 N.E.2d

      1058, 1060 (Ind. 1997) (cannot raise issue for the first time on appeal); see also

      Phillps v. State, 22 N.E.3d 749, 762 (Ind. Ct. App. 2014) (appellant cannot argue

      one legal theory before the trial court and present a different theory on appeal),

      trans. denied.


                                     II. Sufficiency of the Evidence

[8]   When reviewing sufficiency of evidence to support a conviction, we consider

      only the probative evidence and reasonable inferences supporting the trial

      court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-

      finder’s role, and not ours, to assess witness credibility and weigh the evidence

      to determine whether it is sufficient to support a conviction. Id. To preserve

      this structure, when we are confronted with conflicting evidence, we consider it

      most favorably to the trial court’s ruling. Id. We affirm a conviction unless no

      reasonable fact-finder could find the elements of the crime proven beyond a

      reasonable doubt. Id. It is therefore not necessary that the evidence overcome

      every reasonable hypothesis of innocence; rather, the evidence is sufficient if an
      Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017   Page 6 of 10
       inference reasonably may be drawn from it to support the trial court’s decision.

       Id. at 147.


       A. Class A Misdemeanor Resisting Law Enforcement


[9]    To prove Cox committed Class A misdemeanor resisting law enforcement, the

       State had to prove he “forcibly resist[ed], obstruct[ed], or interfer[ed] with a law

       enforcement officer . . . lawfully engaged in the execution of the officer’s

       duties.” Ind. Code § 35-44.1-3-1(a)(1) (2014). Cox argues “the interaction

       between him and the officer did not rise to a strong, powerful, or violent means

       to impede the officer in the execution of duties.” (Br. of Appellant at 10.)

       However, in so arguing, Cox misapplies Walker v. State, 998 N.E.2d 724, 727

       (Ind. 2013), on which he relies for his argument. While Walker holds “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 duties, the Court also said “this should not be understood as requiring an

       overwhelming or extreme level of force.” Id. Walker goes on to state even a

       “modest level” of resistance might support a conviction of Class A

       misdemeanor resisting law enforcement. Id.


[10]   Here, Officer Payne testified:


               He advised me he was not gonna [sic] get out of the vehicle. I
               then reached for the door handle to open the door, he had ahold
               of the inside of the door however; I pulled the door away from
               him. Umm, I then again asked him to step out of the vehicle, he
               advised he would not step out of the vehicle. I grabbed ahold of
               his left arm and pulled two or three times to get him out of the
       Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017   Page 7 of 10
               vehicle, but he was using his right arm to sturdy [sic] himself on
               the steering wheel[,] actively resisting me getting him out of the
               vehicle.


       (Tr. at 11.) Cox’s argument is an invitation for us to reweigh the evidence and

       judge the credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d

       at 146 (appellate court cannot reweigh evidence or judge the credibility of

       witnesses). We conclude the State presented sufficient evidence to prove Cox

       committed Class A misdemeanor resisting law enforcement. See Graham v.

       State, 903 N.E.2d 963, 966 (Ind. 2009) (“even ‘stiffening’ of one’s arms when an

       officer grabs hold to position them for cuffing would suffice”).


       B. Class A Misdemeanor Possession of Paraphernalia


[11]   To prove Cox committed Class A misdemeanor possession of paraphernalia,

       the State had to present evidence he “knowingly or intentionally” possessed “a

       raw material, an instrument, a device or other object that [he] intend[ed] to use

       for: (1) introducing into [his] body a controlled substance[.]” Ind. Code § 35-

       48-4-8.3(a)(1) & Ind. Code § 35-48-4-8.3(b) (2014). Cox argues “the [S]tate did

       not introduce sufficient evidence to show how the rolling papers would be used

       or that marijuana is defined as a controlled substance.” (Br. of Appellant at 11.)


[12]   “The intent to introduce a controlled substance into one’s body may be inferred

       from circumstantial evidence.” Sluder v. State, 997 N.E.2d 1178, 1181 (Ind. Ct.

       App. 2013). Here, the State presented evidence Cox “start[ed] to reach into his

       front right pocket of his pants,” (Tr. at 9), while Officer Payne was reading the


       Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017   Page 8 of 10
       VIN on his vehicle. When asked what he was doing, Cox said he was not

       reaching into his pocket as Officer Payne had observed. Officer Payne then

       asked Cox to exit the vehicle, and Cox resisted. When Officer Payne searched

       Cox, he found “a package of rolling papers. . . [and] a hand rolled cigarette and

       from [his] training [and] experience as a law enforcement officer [he knew] the

       content of that cigarette to be marijuana.” (Id. at 15.) Officer Payne also

       testified when he confronted Cox about the hand-rolled cigarette, Cox replied,

       “that’s mother fucking religious use right there buddy.” (Id. at 18.) Taken

       together, the evidence is sufficient to prove Cox intended to use the rolling

       papers to introduce marijuana into his body. See Atkinson v. State, 810 N.E.2d

       1190, 1194 (Ind. Ct. App. 2004) (noting the State “may have proved the offense

       under [the same section of the statute under which Cox was charged] in light of

       Atkinson’s admission that he used the papers to smoke marijuana”).


[13]   Further, the State presented evidence from Karen Bowen, a forensic chemist

       employed by the Indiana State Police, to prove the substance found in the hand

       rolled cigarette contained a controlled substance. Bowen testified the hand

       rolled cigarette “was found to contain Tetrahydrocannabinol THC, a controlled

       substance, commonly found in marijuana, a controlled substance.” (Tr. at 82.)

       Cox’s arguments are invitations for us to reweigh the evidence and judge the

       credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146

       (appellate court cannot reweigh evidence or judge the credibility of witnesses).



                                               Conclusion
       Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017   Page 9 of 10
[14]   Cox’s constitutional arguments are waived for failure to make a cogent

       argument. Waiver notwithstanding, he did not present the same arguments to

       the trial court and, thus, we are unable to address them. We conclude the State

       presented sufficient evidence Cox committed Class A misdemeanor resisting

       law enforcement and Class A misdemeanor possession of paraphernalia.

       Accordingly, we affirm.


[15]   Affirmed.


       Najam, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 36A01-1604-CR-896 | March 20, 2017   Page 10 of 10
