MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
                                                                    FILED
court except for the purpose of establishing                   Mar 09 2017, 9:20 am

the defense of res judicata, collateral                             CLERK
                                                                Indiana Supreme Court
estoppel, or the law of the case.                                  Court of Appeals
                                                                     and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Barbara J. Simmons                                       Curtis T. Hill, Jr.
Oldenburg, Indiana                                       Attorney General of Indiana

                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Calvin McGregory,                                        March 9, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1609-CR-2104
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Allan W. Reid,
Appellee-Plaintiff.                                      Commissioner
                                                         Trial Court Cause No.
                                                         49G16-1604-CM-13705



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017    Page 1 of 10
[1]   Calvin McGregory appeals his conviction for resisting law enforcement as a

      class A misdemeanor. McGregory raises one issue which we revise and restate

      as whether the evidence is sufficient to sustain his conviction. We affirm.


                                        Facts and Procedural History

[2]   On April 11, 2016, Indianapolis Metropolitan Police Officer James Perry was

      dispatched to investigate a disturbance between a male and a female. He pulled

      up to the scene in his marked police car and observed a woman who was

      bloody, muddy, visibly upset, shaken, crying, angry, and appeared frightened in

      the street walking toward him. She directed him to McGregory in the residence

      where Officer Perry observed broken glass all over the front porch. He knocked

      on the door of the residence, announced that he was a police officer, told

      McGregory that he wanted to speak with him, and asked if McGregory would

      step outside to speak with him. McGregory exited the residence and was

      agitated, confrontational, “very questioning of what [the police] were doing and

      why [the police] were talking to him,” and not responsive initially to any

      questions. Transcript at 9. Officer Perry attempted to speak with McGregory,

      but did not receive responses and was “met with questions.” Id. at 12. Officer

      Perry feared for his safety given McGregory’s increasingly aggravated state and

      the information he had been given and decided to handcuff him. 1




      1
        Officer Perry testified that the information he received was that a male was accused of throwing a female off
      a porch. McGregory’s counsel objected on the basis of hearsay, and the prosecutor argued that the evidence
      was admissible as course of the investigation evidence. The court clarified with the prosecutor that the

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017              Page 2 of 10
[3]   Officer Perry asked McGregory to turn around, and McGregory did so. When

      Officer Perry attempted to handcuff him, McGregory “tensed up,” and “pulled

      his hands away” and was “physically pulling them out of” Officer Perry’s hand.

      Id. at 10. Officer Perry again attempted to handcuff him, and McGregory did

      the same thing and remained “very tense, very tight, balled his fists,” and

      “pulled his arms away from” Officer Perry. Id. At that time, Officer Perry

      placed his right arm under McGregory’s right arm, his left arm over

      McGregory’s left shoulder, and leveraged his weight against McGregory to take

      him to the ground.


[4]   While on the ground, Officer Shaw came to aid Officer Perry with placing

      McGregory in handcuffs. Officer Shaw pulled McGregory’s right arm from

      under his body, and Officer Perry was able to pull his left arm out. Officer

      Shaw put one handcuff on McGregory’s right arm, and Officer Perry was able

      to handcuff his left arm.


[5]   On April 12, 2016, the State charged McGregory with resisting law

      enforcement as a class A misdemeanor and battery as a class B misdemeanor.

      On August 19, 2016, the court granted the State’s motion to dismiss the charge

      of battery. That same day, the court held a bench trial. During cross-

      examination, when asked whether he explained to McGregory why he was

      being detained, Officer Perry stated: “I didn’t have an opportunity to.” Id. at




      testimony would not be offered for the truth of the matter asserted, allowed it for course of investigation but
      not as substantive evidence, and overruled the objection.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017                Page 3 of 10
      14. McGregory testified that his girlfriend broke the window with a chair. He

      also testified:

              As I stepped outside of my door to my porch, the officer, he
              asked me to turn around. I turned around, but all the while I’m
              asking him to turn around, I’m asking him, okay, I’m still trying
              to figure out why he’s here. So as I’m turning around, he
              instantly reached for my right hand and right then and there I
              simply turned and I asked him. I’m like, hey, am I under arrest
              or am I being detained? I’m asking him these questions. I’m not
              – I’m not, you know, trying to pull away from him. I’m just
              pretty much trying to ask something.


      Id. at 26. He testified that Officer Perry did not ask him any questions and did

      not explain to him what was happening. He also testified that Officer Perry

      told him to stop resisting when he took him down to the ground and that he

      was not resisting.


[6]   After the presentation of evidence, the court stated: “[I]t basically goes between

      what Officer Shaw said --- or Perry and what you said. And the Court tends to

      believe that when he asked you to turn around, I mean, you indicated that you

      were agitated, that you weren’t complying with what they were saying. And so

      the Court does believe that you knowingly, forcibly resist or obstruct or at least

      in the very least interfere with what the officer said.” Id. at 38. The court found

      McGregory guilty of resisting law enforcement as a class A misdemeanor and

      sentenced him to 180 days with 176 days suspended.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017   Page 4 of 10
                                                      Discussion

[7]   The issue is whether the evidence is sufficient to sustain McGregory’s

      conviction. When reviewing the sufficiency of the evidence to support a

      conviction, we must consider only the probative evidence and reasonable

      inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

      2007). We do not assess witness credibility or reweigh the evidence. Id. We

      consider conflicting evidence most favorably to the trial court’s ruling. Id. We

      affirm the conviction unless “no reasonable fact-finder could find the elements

      of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State,

      726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence

      overcome every reasonable hypothesis of innocence. Id. at 147. The evidence

      is sufficient if an inference may reasonably be drawn from it to support the

      verdict. Id.


[8]   The offense of resisting law enforcement as a class A misdemeanor is governed

      by Ind. Code § 35-44.1-3-1, which at the relevant time provided that “[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 The charging information

      alleged that McGregory “did knowingly forcibly resist, obstruct or interfere




      2
          Subsequently amended by Pub. L. No. 198-2016, § 673 (eff. July 1, 2016).


      Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017   Page 5 of 10
       with JAMES AARON PERRY, a law enforcement officer with the

       Indianapolis Metro Police Dept, while said officer was lawfully engaged in his

       duties as a law enforcement officer.” Appellant’s Appendix II at 18.


[9]    McGregory argues that the State did not prove forcible resistance. He also

       asserts that he did not threaten Officer Perry, his reaction of tensing up and

       pulling his hands away was not threatening or violent, and Officer Perry offered

       no explanation of what he was trying to do. The State argues that the evidence

       is sufficient where he resisted being handcuffed by Officer Perry, physical pulled

       his hands away and out of the hands of Officer Perry, tensed up, and balled his

       fists.


[10]   The Indiana Supreme Court has observed that “[s]uch a seemingly simple

       statute . . . has proven to be complex and nuanced in its application.” Walker v.

       State, 998 N.E.2d 724, 726 (Ind. 2013). In Spangler v. State, 607 N.E.2d 720,

       722-723 (Ind. 1993), the Indiana Supreme Court held that the word “forcibly” is

       an essential element of the crime and modifies the entire string of verbs—resists,

       obstructs, or interferes—such that the State must show forcible resistance,

       forcible obstruction, or forcible interference. The Court also held that the word

       meant “something more than mere action.” Spangler, 607 N.E.2d at 724.

       “[O]ne ‘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.” Id. at 723. “[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 724.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017   Page 6 of 10
[11]   “But even so, ‘the statute does not demand complete passivity.’” Walker, 998

       N.E.2d at 727 (quoting K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013)). In

       Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009), the Court clarified that “[t]he

       force involved need not rise to the level of mayhem.” “In fact, even a very

       ‘modest level of resistance’ might support the offense.” Walker, 998 N.E.2d at

       727 (quoting Graham, 903 N.E.2d at 966) (“even ‘stiffening’ of one’s arms when

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

       Supreme Court held:

               So in summary, not 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.


[12]   In Berberena v. State, which is cited by McGregory, a police officer “gave several

       loud verbal commands” for Edwin Berberena to stop. 914 N.E.2d 780, 780-781

       (Ind. Ct. App. 2009), trans. denied. The police officer ordered Berberena to


       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017   Page 7 of 10
       place his hands behind his back, but Berberena did not comply. Id. at 781. The

       officer then “had to forcefully place [Berberena] against the wall of the building.

       [Berberena’s] chest was facing the building, and [the officer] had to struggle

       with him to grab his hands and place them in handcuffs.” Id. The trial court

       found Berberena guilty of resisting law enforcement. Id. On appeal, the court

       held that the officer’s testimony “that he struggled to place the handcuffs on

       Berberena’s wrists [was] ambiguous.” Id. at 782. The court also observed that

       the officer “did not testify, and there [was] no evidence, that Berberena stiffened

       his arms or otherwise ‘made threatening or violent actions’ to contribute to the

       struggle.” Id. (quoting Ajabu v. State, 704 N.E.2d 494, 496 (Ind. Ct. App.

       1998)). Lastly, the court observed that the officer “could not remember what

       Berberena was doing with his hands, and the struggle did not last very long.”

       Id. The court concluded that the evidence was insufficient to support

       Berberena’s conviction. Id. at 783.


[13]   McGregory also cites Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009), trans.

       denied. In that case, Curtis Colvin kept his hands in his pockets during a

       struggle with officers and did not comply with officers’ commands, and the

       officers had to use force to execute the arrest. 916 N.E.2d at 309. The State did

       not present any evidence that Colvin used force or made threatening or violent

       actions to contribute to the struggle with the officers. Id. The court held that

       the evidence did not support a reasonable inference that Colvin did more than

       passively resist the officers. Id.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017   Page 8 of 10
[14]   Here, unlike the defendants’ actions in Berberena and Colvin, we cannot say that

       the State did not present any evidence that McGregory used force. The record

       reveals that McGregory was agitated, confrontational, very questioning of

       Officer Perry, and not responsive to his questions. When Officer Perry

       attempted to handcuff him, McGregory “tensed up,” and “pulled his hands

       away” from Officer Perry “physically pulling them out of” Officer Perry’s hand.

       Transcript at 10. Officer Perry again attempted to handcuff him, and

       McGregory did the same thing and remained “very tense, very tight, balled his

       fists,” and “pulled his arms away from” Officer Perry. Id. While on the

       ground, Officer Shaw came to aid Officer Perry. Officer Shaw pulled

       McGregory’s right arm from under his body, Officer Perry was able to pull his

       left arm out, and they were then able to handcuff McGregory.


[15]   Based upon the record, we conclude that there exists evidence of probative

       value from which a reasonable trier of fact could find that McGregory exercised

       at least a modest exertion of strength, power, or violence that impeded Officer

       Perry in the lawful execution of his duties and that he was guilty beyond a

       reasonable doubt of resisting law enforcement as a class A misdemeanor. See

       Lopez v. State, 926 N.E.2d 1090, 1093-1094 (Ind. Ct. App. 2010) (holding that

       the evidence was sufficient to prove that the defendant acted with the requisite

       force in resisting the officers in the execution of their duties where the defendant

       refused to stand and “started to pull away” when the officers tried to physically

       pull him up from the couch and where the officers were unable to pull his arms

       out from under the defendant), trans. denied; Johnson v. State, 833 N.E.2d 516,


       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017   Page 9 of 10
       518-519 (Ind. Ct. App. 2005) (holding that the defendant forcibly resisted police

       officers by turning away and pushing away with his shoulders as they attempted

       to search him, refusing to enter the transport vehicle, and stiffening up, thus

       requiring the officers to exert force to place him inside the transport vehicle).


                                                   Conclusion

[16]   For the foregoing reasons, we affirm McGregory’s conviction.


[17]   Affirmed.


       Vaidik, C.J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017   Page 10 of 10
