MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Mar 15 2018, 9:29 am

court except for the purpose of establishing                               CLERK
                                                                       Indiana Supreme Court
the defense of res judicata, collateral                                   Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Caryn N. Szyper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael V. Richards,                                     March 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1709-CR-2171
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Ronnie Huerta,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G19-1702-CM-6617



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2171 | March 15, 2018          Page 1 of 9
                                       Statement of the Case
[1]   Michael V. Richards appeals his convictions, following a bench trial, for

      resisting law enforcement, as a Class A misdemeanor, and public intoxication,

      as a Class B misdemeanor. Richards raises one issue on appeal, namely,

      whether the State presented sufficient evidence to support his convictions.


[2]   We affirm.


                                 Facts and Procedural History
[3]   At approximately 5:00 p.m. on February 17, 2017, Officer Sherry Denny with

      the Indianapolis Metropolitan Police Department (“IMPD”) responded to a

      call at the intersection of Southport Road and U.S. 31 in Indianapolis.

      Dispatch had received multiple calls that a man was walking in and out of

      traffic at that intersection. Upon her arrival, Officer Denny saw Richards

      standing in a nearby office parking lot with Jacqueline Meurer. Meurer had

      begun a conversation with Richards because she was concerned for his safety

      since he was “hovering around” the rush-hour traffic. Tr. Vol. II at 44. Meurer

      was also concerned about Richards because “[h]e was definitely not acting

      right.” Id. at 47.


[4]   Officer Denny observed that Richards was “stumbling around” in the parking

      lot. Id. at 7. She also observed that his hands were in his pockets. For her

      safety, she requested that he remove his hands, but he did not comply. Officer

      Denny “continued to ask him to take his hands out of his pockets.” Id. at 8.

      Richards attempted to say something in response, but his speech was “muffled

      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2171 | March 15, 2018   Page 2 of 9
      and slurred,” and Officer Denny could not understand what he said. Id. Based

      on her training, his speech, and because “[h]e was unsteady on his feet,” id. at

      9, Officer Denny believed that Richards “was under the influence of

      something.” Id. at 8.


[5]   Officer Denny continued to ask Richards to remove his hands from his pockets.

      Richards still did not comply, and Officer Denny attempted to handcuff him.

      She placed the handcuffs on one of his hands, but she was unable to handcuff

      the second hand because “he kind of hunkered down and leaned away from me

      to try to get away.” Id. at 20. Officer Denny and Richards then “did some

      spins in the parking lot” as Officer Denny attempted to get Richards’ other

      hand in the handcuffs. Id. Richards was fighting her and “actively trying to get

      away.” Id. at 32. Eventually, Officer Denny and Richards fell to the ground.


[6]   IMPD Officer Steven Hayth arrived at the scene shortly after Officer Denny.

      He observed Richards “resisting [Officer Denny] trying to put him in the

      handcuffs.” Id. at 34. He also observed Officer Denny and Richards fall and

      continue to struggle on the ground. Richards continued to struggle, and “he

      was fighting” to keep Officer Denny from getting his other hand. Id. at 21.

      Richards “was trying to get out from underneath [Officer Denny] and [Officer

      Denny] was trying to put his hands behind his back.” Id. at 35. At that point,

      Officer Hayth decided to assist Officer Denny but Richards continued to “try[]

      to forcefully get his hands out from our grasp.” Id. With Officer Hayth’s

      assistance, Officer Denny was able to place handcuffs on both of Richards’

      hands, but he was “still kicking and writhing around trying to get away[.]” Id.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2171 | March 15, 2018   Page 3 of 9
      at 22. The officers “had to put shackles on him to keep him from kicking”

      them. Id.


[7]   While Officers Denny and Hayth waited for other officers to arrive, they asked

      Richards to stay seated. But Richards kept trying to stand up and go towards

      the officers in a “threatening” manner. Id. at 42. Officer Hayth noticed that

      Richards had “extremely glassy eyes, bloodshot eyes. His manual dexterity was

      poor. He was . . . kind of waving back and forth” while he was on his feet. Id.

      at 38. Officer Hayth also noticed that Richards “was very belligerent,” and

      testified that Richards told one of the officers to perform a sexual act on another

      officer. Id. Based on his observations of Richards, he believed that Richards

      was intoxicated.


[8]   The State charged Richards with two counts of resisting law enforcement, as

      Class A misdemeanors (Counts I and II), and one count of public intoxication,

      as a Class B misdemeanor (Count III). On August 31, the trial court held a

      bench trial. The court found Richards guilty of all three charges, but it later

      vacated his conviction for Count I. The court sentenced Richards to an

      aggregate term of 365 days, with 305 days suspended. This appeal ensued.


                                     Discussion and Decision
[9]   Richards contends that the State failed to present sufficient evidence to support

      his convictions. Our standard of review on a claim of insufficient evidence is

      well settled:



      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2171 | March 15, 2018   Page 4 of 9
               For a sufficiency of the evidence claim, we look only at the
               probative evidence and reasonable inferences supporting the
               [judgment]. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We
               do not assess the credibility of witnesses or reweigh the evidence.
               Id. We will affirm the conviction unless no reasonable fact-finder
               could find the elements of the crime proven beyond a reasonable
               doubt. Id.


       Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).


                                        Resisting Law Enforcement

[10]   Richards first contends that the State failed to present sufficient evidence to

       support his conviction for resisting law enforcement, as a Class A

       misdemeanor. To convict Richards of resisting law enforcement, as a Class A

       misdemeanor, the State was required to prove that Richards: knowingly or

       intentionally; forcibly; resisted, obstructed, or interfered with a law enforcement

       officer; while the law enforcement officer was lawfully engaged in the execution

       of the officer’s duties. See Ind. Code § 35-44.1-3-1(a)(1) (2017). Here, the

       parties dispute only whether the evidence shows that Richards forcibly resisted

       the law enforcement officers.


[11]   As the Indiana Supreme Court has explained, “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.” Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013). While the statute

       does not demand complete passivity, the force involved need not rise to the

       level of mayhem. Id. Even a modest level of resistance, including stiffening


       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2171 | March 15, 2018   Page 5 of 9
       one’s arms when an officer grabs them to position them for cuffing, might

       support the offense. Id.


[12]   Richards specifically asserts that there was insufficient evidence to demonstrate

       that he forcibly resisted because he did not use “[s]trong, violent, or powerful

       means” to resist Officer Denny. Appellant’s Br. at 13. To support his

       contention, Richards relies on Macy v. State, 9 N.E.3d 249 (Ind. Ct. App. 2014).

       In Macy, police officers arrived at the defendant’s home to investigate a

       complaint. The defendant began “making a scene,” so one of the police officers

       arrested her. Id. at 250. The officer placed the defendant in his vehicle, but she

       opened the door and got out of the car. The officer requested that she get back

       in the car. At that point, she planted her feet on the ground and the officer had

       to pick up her feet and put them in the car. The trial court found her guilty.


[13]   On appeal, this court held that the defendant’s acts of opening the door of the

       police car did not constitute forcible resistance because the act did not involve

       any interaction with the officer and it was not directed towards the officer and

       did not present a threat to him. Id. at 253. This court also held that her act of

       planting her feet outside the officer’s car, such that the officer had to pick her

       feet up and place them in the car, was an act of passive resistance that is not

       punishable under the statute. Id. In the present case, Richards contends that,

       like in Macy, his actions “were clearly passive.” Appellant’s Br. at 14.


[14]   We reject Richards’ argument. In Macy, the defendant simply opened a car

       door and planted her feet on the ground. Here, Richards’ actions were not so


       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2171 | March 15, 2018   Page 6 of 9
       “passive.” When Officer Denny attempted to place him in handcuffs, he

       “hunkered down and leaned away” from Officer Denny, Tr. Vol. II at 20, and

       he was “actively trying to get away” from her. Id. at 32. As he attempted to get

       away from her, they “did some spins in the parking lot” as Officer Denny

       attempted to get his other hand in the handcuffs. Id. at 20. Eventually, Officer

       Denny and Richards fell to the ground, but even there Richards was “fighting”

       for his other hand, id. at 21, and “trying to get out from underneath” Officer

       Denny. Id. at 35. Even after Officer Hayth decided to assist Officer Denny,

       Richards continued to “try[] to forcefully get his hands” from the officers. Id.

       Further, after the officers placed Richards in handcuffs, he was “kicking and

       writhing around” to try to get away, and the officers had to place shackles on

       him to keep from getting kicked. Id. at 22. As such, the evidence readily shows

       that Richards forcibly resisted the law enforcement officers. Accordingly, we

       affirm his conviction for resisting law enforcement, as a Class A misdemeanor.


                                              Public Intoxication

[15]   Richards also contends that the State failed to present sufficient evidence to

       support his conviction for public intoxication, as a Class B misdemeanor. To

       convict Richards of public intoxication, as a Class B misdemeanor, the State

       was required to prove that he was in a public place, in a state of intoxication

       caused by his use of alcohol or a controlled substance, and that he had




       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2171 | March 15, 2018   Page 7 of 9
       endangered his life. See I.C. § 7.1-5-1-3(a)(1). Richards maintains that the

       evidence is insufficient to prove that he was intoxicated. 1


[16]   Richards contends that the State did not present sufficient evidence because

       “[n]owhere in the record is there any mention of the consumption of large

       amounts of alcohol, odor of alcoholic beverage, failure of field sobriety tests,

       bloodshot eyes or even slurred speech.” Appellant’s Br. at 12. But we agree

       with the State that a reasonable fact-finder could have determined from the

       evidence that Richards was intoxicated. Officer Denny testified that Richards

       was “stumbling around” in the parking lot. Tr. Vol. II at 7. She further

       testified that his speech was “muffled and slurred.” Id. at 8. And she testified

       that, based on her training and her three years of experience as a police officer,

       she believed that Richards was intoxicated.


[17]   Officer Hayth also testified that Richards had “extremely glassy eyes, bloodshot

       eyes. His manual dexterity was poor. He was . . . kind of waving back and

       forth” while he was on his feet and he “was very belligerent.” Id. at 38. Based

       on Officer Hayth’s sixteen years of experience as an officer and his observations

       of Richards, Officer Hayth believed that Richards was intoxicated. Further, the

       State presented the testimony of Meurer, who had witnessed the incident.

       Meurer testified that Richards’s “composure was that he wasn’t walking

       straight. He was like wobbling.” Id. at 45. Meurer also believed that Richards



       1
         In his brief, Richards states that “[t]he issues for this appeal are whether there was sufficient evidence in the
       record to prove that Mr. Richards endangered his life.” Appellant’s Br. at 10. However, he does not make
       any argument on that point.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2171 | March 15, 2018                  Page 8 of 9
       was intoxicated because “[h]e was definitely not acting right.” Id. at 47.

       Therefore, the evidence most favorable to the trial court’s judgment shows that

       Richards was intoxicated. See Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct.

       App. 2013) (holding that there was sufficient evidence to find that the defendant

       was intoxicated based on the officer’s testimony that the officer smelled alcohol

       on the defendant’s breath and that the defendant had bloodshot eyes, slurred

       speech, and an unsteady gait). As such, we affirm his conviction for public

       intoxication, as a Class B misdemeanor.


[18]   In sum, the evidence most favorable to the judgment supports Richards’

       convictions for resisting law enforcement, as a Class A misdemeanor, and

       public intoxication, as a Class B misdemeanor. Richards’ contentions on

       appeal are simply requests that we reweigh the evidence, which we cannot do.

       We affirm Richards’ convictions.


[19]   Affirmed.


       Mathias, J., and Barnes, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2171 | March 15, 2018   Page 9 of 9
