MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Dec 26 2018, 9:09 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
Chris M. Teagle                                         Curtis T. Hill, Jr.
Muncie, Indiana                                         Attorney General of Indiana
                                                        Matthew Koressel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Brian Valenti,                                          December 26, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        18A-CR-1416
        v.                                              Appeal from the Blackford
                                                        Superior Court
State of Indiana,                                       The Honorable John N. Barry,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        05D01-1802-CM-54



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018             Page 1 of 7
                                           Case Summary
[1]   Brian Valenti (“Valenti”) appeals his conviction for resisting law enforcement,

      as a Class A misdemeanor,1 following a jury trial. He raises one issue for our

      review which we restate as whether the State presented sufficient evidence to

      support his conviction.


[2]   We affirm.



                                Facts and Procedural History
[3]   The evidence supporting the judgment is as follows. Shortly after three o’clock

      in the morning on February 21, 2018, Blackford County Sheriff’s Department

      Deputy Tyler Ingram (“Dep. Ingram”) was getting fuel at a service station in

      Hartford City, Indiana, when he observed a gray Lexus that appeared not to

      have any headlights on drive through the station’s parking lot at a fairly high

      rate of speed. Ingram entered his marked police car, activated his red and blue

      lights and siren, and followed the Lexus in order to conduct a traffic stop. The

      Lexus continued driving for approximately three blocks and then stopped in

      front of a residence that was later proved to be Valenti’s home.


[4]   Dep. Ingram exited his vehicle, approached the Lexus, and recognized the

      driver as Valenti. Dep. Ingram was wearing a body camera that recorded his




      1
          Ind. Code § 35-44.1-3-1(a)(1).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018   Page 2 of 7
      entire encounter with Valenti.2 Dep. Ingram observed that Valenti’s eyes were

      red and glossy and that he seemed “tense” and “agitated.” Tr. at 31. Dep.

      Ingram instructed Valenti to place his hands on his steering wheel, and Valenti

      did so. Dep. Ingram informed Valenti that he wanted to perform some sobriety

      tests on Valenti. Because it was dark and raining, Dep. Ingram requested that

      Valenti accompany him to the police station to do the sobriety tests, but Valenti

      refused that request. Dep. Ingram ordered Valenti out of his vehicle and

      Valenti complied.


[5]   Dep. Ingram conducted the horizontal gaze nystagmus test on Valenti, and

      Valenti failed that test. During the testing, Valenti was “vocally displeased”

      with the situation and was using profanity and “making demands” in a tone of

      voice that was “louder than necessary.” Id. at 34. After the first test, Valenti

      refused Dep. Ingram’s request to conduct additional sobriety tests; instead,

      Valenti “[d]emanded a blood draw, to go to the hospital, a breathalyzer test,

      and a supervisor.” Id. at 35.


[6]   After Hartford City Police Department officer Lucas Phillips (“Officer

      Phillips”) and one other police officer arrived at the scene to assist, Dep.

      Ingram gave Valenti “several commands” to put his hands behind his back so

      that the police could handcuff him. Id. at 57. Valenti did not comply with




      2
        Although the video recording from the body camera is in evidence and in the record as State’s Exhibit 1, it
      only recorded Valenti from the neck up. And, because it was dark and raining, the recording’s visibility is
      poor.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018                  Page 3 of 7
      those commands; rather, he continued to be “verbally aggressive.” Id. at 36.

      Therefore, Dep. Ingram restrained Valenti’s right arm and Officer Phillips

      restrained Valenti’s left arm in order to put Valenti’s hands behind his back.

      When Dep. Ingram put his hands on Valenti, he felt Valenti’s body tense and

      felt Valenti “pulling away from [him] as if to escape [his] grasp.” Id. at 45.

      Officer Phillips also felt Valenti tense when he grabbed his left arm. Valenti

      was “actively struggling,”3 and Officer Phillips had to “forcibly put [Valenti’s

      left hand] behind his back in an effort to apply handcuffs.” Id. at 57. When the

      officers were unable to apply handcuffs while Valenti was standing, they

      lowered Valenti to the ground and, with “additional effort,” Id. at 58, and

      “struggle,” Id. at 45, placed Valenti in handcuffs.


[7]   On February 22, 2018, the State charged Valenti with resisting law

      enforcement, as a Class A misdemeanor; disorderly conduct, as a Class B

      misdemeanor;4 and operating a vehicle while intoxicated, as a Class C

      misdemeanor.5 Valenti’s jury trial took place on May 16. Dep. Ingram and

      Officer Phillips testified at the trial, as did Valenti’s neighbor, Gary Glancy

      (“Glancy”), who witnessed the events surrounding Valenti’s arrest on February

      21. The jury found Valenti guilty of resisting law enforcement as charged and




      3
        The audio recording from the body camera reflects the sounds of struggle at that point, but the video does
      not provide a clear view of Valenti and the officers. State’s Ex. 1.
      4
          I.C. § 35-45-1-3(a)(1).
      5
          I.C. § 9-30-5-2(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018                 Page 4 of 7
      not guilty of the other charges against him. On June 14, the trial court entered

      its judgment of conviction and imposed a three hundred sixty-five day sentence

      with four days of credit time. This appeal ensued.



                                Discussion and Decision
[8]   Valenti contends that the evidence is insufficient to support his resisting law

      enforcement conviction. Our standard of review in a sufficiency of the evidence

      claim is clear:


              [W]e examine only the probative evidence and reasonable
              inferences that support the [judgment]. We do not assess witness
              credibility, nor do we reweigh the evidence to determine if it was
              sufficient to support a conviction. Under our appellate system,
              those roles are reserved for the finder of fact. Instead, we
              consider only the evidence most favorable to the trial court ruling
              and affirm the conviction unless no reasonable fact-finder could
              find the elements of the crime proven beyond a reasonable doubt.


      Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (citations and quotation marks

      omitted).


[9]   Valenti argues that there was insufficient evidence that he forcibly resisted law

      enforcement. Under Indiana Code Section 35-44.1-3-1(a)(1), “[t]he basic

      offense of resisting law enforcement has five essential elements: that [the

      defendant] (1) knowingly or intentionally (2) forcibly (3) resisted, obstructed, or

      interfered with (4) a law enforcement officer, (5) while the officer was lawfully

      engaged in the execution of the officer’s duties.” K.W. v. State, 984 N.E.2d 610,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018   Page 5 of 7
       612 (Ind. 2013). The State maintains that Valenti resisted law enforcement by

       struggling against the officers when they attempted to put his hands behind his

       back and place him in handcuffs. Valenti counters that there is insufficient

       evidence that he resisted being handcuffed, much less that he “forcibly”

       resisted, as required under the statute. Appellant’s Br. at 12-13.


[10]   One forcibly resists when “strong, powerful, violent means are used to evade a

       law enforcement official’s rightful exercise of his or her duties.” Spangler v.

       State, 607 N.E.2d 720, 723 (Ind. 1993). “[M]erely walking away from a law-

       enforcement encounter, leaning away from an officer’s grasp, or twisting and

       turning a little bit against an officer’s actions do not establish ‘forcible’

       resistance.” K.W., 984 N.E.2d at 612 (quotations and citations omitted).

       However, as our Supreme Court has pointed out, there is no bright-line test for

       whether a defendant acts “forcibly”; rather, such determinations must be made

       on a case-by-case basis, with guidance from our case law. Walker v. State, 998

       N.E.2d 724, 728 (Ind. 2013). Thus, Indiana courts have held that “showing

       strength and a threat of violence” is forcible resistance, Walker, 998 N.E.2d at

       727-28; that “aggressively pulling away” from an officer trying to arrest is

       forcible resistance, Glenn v. State, 999 N.E.2d 859, 862 (Ind. Ct. App. 2013);

       that “starting to pull away” from an officer and keeping one’s arms underneath

       oneself to prevent handcuffing are forcible resistance, Lopez v. State, 926 N.E.2d

       1090, 1093-94 (Ind. Ct. App. 2010), trans. denied; and that stiffening one’s arms

       to avoid handcuffing is forcible resistance, Graham v. State, 903 N.E.2d 963,




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018   Page 6 of 7
       965-66 (Ind. 2009) (citing Johnson v. State, 833 N.E.2d 516, 517 (Ind. Ct. App.

       2005)).


[11]   Here, both Officers Ingram and Phillips testified that, when they attempted to

       put Valenti’s arms behind his back, Valenti tensed his arms, pulled away from

       them, and “actively struggle[ed]” against them. Tr. at 57. The officers testified

       that, because of Valenti’s struggling, they were unable to handcuff him while he

       was standing; therefore, they were forced to lower him to the ground. Yet, they

       testified, even while on the ground, Valenti continued to “struggle” against

       being handcuffed, requiring them to apply “additional effort” to restrain him.

       Id. at 45, 58. That is sufficient evidence that Valenti forcibly resisted law

       enforcement. Graham, 903 N.E.2d at 965-66; Glenn, 999 N.E.2d at 862; Lopez,

       926 N.E.2d at 1093-94. Valenti’s claims to the contrary6 are merely requests

       that we reweigh the evidence, which we cannot do. Lock, 971 N.E.2d at 74.


[12]   The State presented sufficient evidence to support Valenti’s conviction for

       resisting law enforcement.


[13]   Affirmed.


       Bradford, J., and Brown, J., concur.




       6
         Valenti points to Glancy’s testimony that he did not witness Valenti struggling and that he believed the
       officers’ actions were aggressive because he did not hear them ask Valenti to “put his hands up” or “turn
       around” before they forced him to the ground. Tr. at 71. However, clearly the trial court found the officers’
       contradictory testimony more credible, and we will not second-guess the trial court’s credibility
       determinations on appeal. Lock, 971 N.E.2d at 74.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1416 | December 26, 2018                  Page 7 of 7
