MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                            Sep 17 2018, 10:49 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Victoria Bailey                                          Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Tyler G. Banks
Indianapolis, Indiana                                    Deputy Attorney General
Barbara J. Simmons                                       Indianapolis, Indiana
Oldenburg, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Sylvanus Paelay,                                         September 17, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-387
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable
Appellee-Plaintiff.                                      David Hooper, Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1612-CM-48808



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-387 | September 17, 2018              Page 1 of 9
[1]   Sylvanus Paelay (“Paelay”) was convicted following a jury trial of two counts

      of resisting law enforcement,1 each as a Class A misdemeanor. The trial court

      merged the two convictions and imposed a one-year sentence, fully suspended.

      Paelay now appeals and argues that the State did not present sufficient evidence

      to prove that he forcibly resisted law enforcement.


[2]   We affirm.


                                      Facts and Procedural History
[3]   Late in the evening on December 25, 2016, Paelay was at a banquet hall,

      attending a holiday event of the Liberian Men’s Association, a social and

      philanthropic group. Members of the community were invited to the event,

      which had a $50.00 entrance fee. According to the party’s organizer,

      Wellington Draper (“Draper”), Paelay was “let in” without paying. Tr. Vol. II

      at 19. Paelay began insulting and cussing at other attendees of the event, and

      Draper asked the hired security officer, Japhia Johnson (“Johnson”), to talk

      with Paelay. Johnson did so, and Paelay “quieted down.” Id. at 21.

      Thereafter, Paelay began to “act up” again, and Johnson called the police,

      asking that Paelay be removed from the premises. Id. When an Indianapolis

      Metropolitan Police Department (“IMPD”) officer arrived at the scene, he was




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


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-387 | September 17, 2018   Page 2 of 9
      advised that Paelay had calmed down and was permitted to stay, so the officer

      left.


[4]   Almost immediately, Paelay began to insult other attendees again. After a

      short while, Johnson called the police again, and IMPD Officer Aaron Trotter

      (“Officer Trotter”) arrived first, followed shortly thereafter by Officer Ricardo

      Flores (“Officer Flores”) and two other officers. Draper confirmed to Officer

      Trotter that he wanted Paelay to leave the premises. In an attempt to resolve

      the situation, Officer Trotter gave Paelay’s step-father an opportunity to speak

      with Paelay about leaving on his own, and Officer Trotter stood nearby.

      Officer Trotter saw Paelay shake his head “no” and gesture “as if to say no”

      with his arms. Id. at 55. Officer Trotter, believing that Paelay likely was not

      going to leave on his own accord, spoke to Officer Flores to advise him of the

      status of the situation.


[5]   The two officers approached Paelay, and Officer Trotter spoke to Paelay briefly

      and then grabbed his left arm, while Officer Flores took his right arm; Paelay

      “immediately went rigid.” Id. at 56-57. When Paelay did this, the officers

      “took him to the ground.” Id. at 57. Once Paelay was on the ground, he

      refused to give officers his right arm for handcuffing, and it took three officers

      “to sweep his arm around” and handcuff Paelay. Id. Officers walked Paelay

      outside and ultimately placed Paelay in leg shackles because he attempted to get

      to his knees and stand up. Id. at 77-78.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-387 | September 17, 2018   Page 3 of 9
[6]   On December 26, 2016, the State of Indiana charged Paelay with two counts of

      Class A misdemeanor resisting law enforcement. Appellant’s App. Vol. II at 20.

      In January 2018, the State requested and received permission to amend the

      information by adding a count of Class A misdemeanor criminal trespass. Id. at

      55. A jury trial was held in February 2018.


[7]   At trial, Draper testified that Paelay was “intoxicated” when he first arrived,

      and, while inside the hall, Paelay was cussing at and insulting people and

      causing a disturbance. Tr. Vol. II at 20, 23-24. Drayer told the bartender “to cut

      down” on serving Paelay and told Johnson, the security officer, to “keep an eye

      on him.” Id. at 20-21. Draper testified that Johnson called the police twice due

      to Paelay’s behavior. Draper said that Paelay “caused a disruption” to the

      event. Id. at 24. Draper did not observe the actual arrest, but he said he saw

      Paelay sitting outside on the ground in handcuffs and described that Paelay was

      cussing and yelling and “not cooperating with the police.” Id. at 30.


[8]   Johnson testified that about fifteen to twenty minutes after Paelay was allowed

      to enter, Draper came to her and said that Paelay “must go” because he was

      “arguing and causing problems.” Id. at 35. She said that Paelay was

      intoxicated, and she observed him “falling over” and “in people’s face

      yelling[.]” Id. She attempted to have him walk outside with her to “cool

      down,” but he refused. Id. When the first officer arrived, she told him that

      Paelay was “being very belligerent” and appeared intoxicated, but then told the

      officer that he could leave, and that Paelay could stay, because Paelay’s step-

      father and Draper had assured her that they could make Paelay behave. Id. at

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-387 | September 17, 2018   Page 4 of 9
      37. However, shortly after that officer left, Paelay continued “picking

      arguments and fights” with “a lot of people[,]” so Johnson eventually called the

      police again. Id. 38. She observed the officers arrive and said that one officer

      asked Paelay to step outside, and Paelay said, “[F]*ck you and pulled away

      from the police officer.” Id. at 41. Johnson said more officers came and “tried

      to get ahold of [Paelay],” and he “kept bucking and f[l]ailing his arms trying to

      get away.” Id. at 42. She said they lowered him to the ground and handcuffed

      him, and walked him outside, “although he kept cussing and carrying on.” Id.

      She described that, while outside, Paelay “was jerking, trying to get them away

      from him[.]” Id. Johnson followed officers and Paelay outside, and she said

      that Paelay “was screaming and yelling, telling them to get their hands off of

      him, trying to kick. He just was out of control.” Id. at 43. She observed

      officers putting shackles on his legs, as Paelay was cursing, name calling, and

      “just going crazy.” Id.


[9]   Officer Trotter testified and described that that there are two different types of

      resistance:


              [T]here’s passive which is their [sic] not fighting you but they’re
              not doing what you’re telling them to do. And then active
              resistance which is where they’re actually fighting. When
              someone goes rigid that’s passive resistance. But it’s a red flag
              for us because it means that they’re likely about to try to fight
              you.


      Id. at 56. Officer Trotter considered Paelay’s action of becoming rigid to be

      passive resistance. Id. When Paelay stiffened, the two officers took Paelay to

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-387 | September 17, 2018   Page 5 of 9
       the ground; Paelay “was refusing to give us his right arm so we gave him

       several verbal commands” to “stop resisting.” Id. at 57. Officer Trotter

       estimated that it took the officers approximately thirty seconds to handcuff

       Paelay, while a typical arrest takes “like two seconds” if “someone is just

       putting their hands behind their back.” Id. at 58. After Paelay was handcuffed

       and escorted outside, Officer Trotter said that officers “did eventually have to

       shackle [Paelay]” because he was kicking or attempting to stand up. Id. at 59.


[10]   Officer Flores testified that, after he arrived at the premises, Officer Trotter

       advised him of the situation, telling Officer Flores that Paelay needed to be

       removed and that Paelay “might be uncooperative.” Id. at 73. Officer Flores

       said that they approached Paelay and that each grabbed an arm. Paelay “went

       stiff” and “tensed up his arms to the point to where he was what we would

       consider resisting.” Id. at 75. Officer Flores said that Paelay would not give the

       officers his right arm, and they were giving “loud, verbal commands” to “stop

       resisting” and giving him instructions to put his hands behind his back. Id. at

       76. Officer Flores said that Paelay was “yelling f*ck you” and “calling us

       a**holes.” Id. at 77. While outside, Paelay “kept trying to get to his knees and

       stand up.” Id. at 78. Officer Flores stated that, after Paelay was in shackles, “he

       kept trying to roll to his side and stand up.” Id.


[11]   At the conclusion of the evidence, the jury found Paelay guilty of the two

       counts of resisting law enforcement and not guilty of the criminal trespass

       charge. Tr. Vol. II at 95; Appellant’s App. Vol. II at 16-17. The trial court merged

       the two convictions. Tr. Vol. II at 96; Appellant’s App. Vol. II at 16-17.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-387 | September 17, 2018   Page 6 of 9
       Following a sentencing hearing, the trial court sentenced Paelay on February

       12, 2018, to one year of incarceration, with credit for eight days, and with the

       remaining three hundred fifty-seven days suspended to probation. Paelay now

       appeals.


                                      Discussion and Decision
[12]   Paelay contends that the State failed to present sufficient evidence to convict

       him of resisting law enforcement. When reviewing a conviction for the

       sufficiency of the evidence, we do not reweigh evidence or reassess the

       credibility of witnesses. Walker v. State, 998 N.E.2d 724, 726 (Ind. 2013). We

       view all evidence and reasonable inferences drawn therefrom in a light most

       favorable to the conviction and will affirm “if there is substantial evidence of

       probative value supporting each element of the crime from which a reasonable

       trier of fact could have found the defendant guilty beyond a reasonable doubt.”

       Id. (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)).


[13]   To convict Paelay of resisting law enforcement as charged, the State was

       required to prove that he: (1) knowingly or intentionally (2) forcibly (3)

       resisted, obstructed, or interfered (4) with a law enforcement officer (5) while

       the officer was lawfully engaged in the execution of the duties. Ind. Code § 35-

       44.1-3-1(a)(1). Our Supreme Court has clarified, “[T]he 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.” Walker, 998 N.E.2d at 726 (citing


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-387 | September 17, 2018   Page 7 of 9
       Spangler v. State, 607 N.E.2d 720, 722-23 (Ind. 1993)). “‘[A]ny action to resist

       must be done with force in order to violate [the] statute.’” Id. at 727 (quoting

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

       ‘mayhem[,]’” and “even a very ‘modest level of resistance’ might support the

       offense.” Id. (quoting Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009)).


[14]   On appeal, Paelay argues that the evidence fails to prove that he “acted forcibly

       toward Officers Trotter and Flores as charged . . . or interfered with the officers’

       execution of their duties.” Appellant’s Br. at 8-9. His position is that his

       “reaction during the encounter of stiffening his body when the officer grabbed

       his arms shows no ‘force[.]’” Id. at 10. We disagree.


[15]   Our Supreme Court has recognized that “‘stiffening’ of one’s arms when an

       officer grabs hold to position them for cuffing would suffice” to constitute

       forcible resistance. Graham, 903 N.E.2d at 966; see also Johnson v. State, 833

       N.E.2d 516, 517 (Ind. Ct. App. 2005) (holding that defendant who “stiffened

       up” as police were attempting to put him in police vehicle, requiring police to

       physically place him inside it, used forcible resistance). Furthermore, the

       evidence showed that, here, Paelay did more than only stiffen his arms.

       Johnson, the security guard, observed that, as officers “tried to get ahold of

       [Paelay],” he “kept bucking and f[l]ailing his arms trying to get away.” Tr. Vol.

       II at 42.


[16]   After Paelay stiffened his arms, Officers Trotter and Flores physically took

       Paelay to the ground. Paelay then refused to give the officers his right arm for


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-387 | September 17, 2018   Page 8 of 9
       handcuffing, and he ignored loud, verbal commands to stop resisting and to put

       his hands behind his back. It took three officers “to sweep his arm around” in

       order to handcuff Paelay. Id. at 57. After officers were able to handcuff Paelay

       and escort him outside, they sat him on the ground, but he was kicking and kept

       trying to get to his knees and stand up. Johnson described Paelay as being “out

       of control.” Id. at 43. Officer Flores recalled that, after the officers shackled

       him, Paelay “kept trying to roll to his side and stand up.” Id. at 78.


[17]   “[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[,]” and the “forcibly” element “may be satisfied

       with even a modest exertion of strength, power, or violence.” Walker, 998

       N.E.2d at 727. Here, the record before us reflects that Paelay exerted well more

       than “modest” strength, power, or violence as Officers Trotter and Flores

       attempted to handcuff him. Accordingly, sufficient evidence supported his two

       convictions for resisting law enforcement.


[18]   Affirmed.


       Vaidik, C.J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-387 | September 17, 2018   Page 9 of 9
