MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                      Jun 30 2015, 10:38 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy J. Burns                                          Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Tyler G. Banks
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Estel Lynn,                                              June 30, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A05-1410-CR-467
        v.                                               Appeal from the Marion Superior
                                                         Court.
State of Indiana,                                        The Honorable Anne Flannelly,
                                                         Magistrate.
Appellee-Plaintiff.
                                                         Cause No. 49G17-1406-CM-32751




Riley, Judge.




Court of Appeals of Indiana | Memorandum Opinion | 49A05-1410-CR-467 | June 30, 2015     Page 1 of 8
                             STATEMENT OF THE CASE

Appellant-Defendant, Estel Lynn (Lynn), appeals his conviction for resisting

law enforcement, a Class A misdemeanor, Ind. Code § 35-44.1-3-1(a)(1) (2013);

and battery, a Class A misdemeanor, I.C. § 35-42-2-1(a)(1)(b) (2012).


We affirm.


                                               ISSUE

Lynn raises one issues on appeal which we restate as: Whether the State

presented sufficient evidence beyond a reasonable doubt to sustain Lynn’s

conviction for resisting law enforcement and battery.


                     FACTS AND PROCEDURAL HISTORY

Shortly before 10:00 p.m. on June 22, 2014, Officer Jason Thalheimer (Officer

Thalheimer) and Officer John Walters (Officer Walters) of the Indianapolis

Metropolitan Police Department were sent to Woodland Drive, Indianapolis,

Indiana to investigate a domestic disturbance. Upon their arrival, the

complainant directed the officers to 20 Woodland Drive as being the residence

as to where the disturbance originated.


On the sidewalk in front of the residence, the officers encountered Melissa

Linhart (Linhart). Linhart appeared distraught, she was crying and was looking

for her car keys so she could to leave. Officer Thalheimer assisted in looking

for the keys while Officer Walters questioned her. Linhart was initially

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reluctant to tell the officers what happened, but she eventually told the officers

that she had been in a physical fight with Eric Lynn (Eric), her live-in

boyfriend. Officer Walters observed that Linhart had a small laceration in the

corner of her mouth. Linhart then escorted the officers inside the residence that

she shared with Eric, Eric’s father (Lynn), and Eric’s mother, Brenda Lynn

(Brenda).


When they entered the house, Lynn and Brenda were seated on the couch while

Eric was lying on the floor watching the television. Officer Walters asked for

Eric’s identification. Eric declined, he laid back on the floor and said, “I am

not [] saying anything.” (Appellant’s App. p. 41). At that moment, Lynn

“jumped off the couch” and approached the officers, telling them to “get the

fuck out.” (Tr. pp. 39, 56). According to the officers, Lynn and Eric appeared

intoxicated due to their slurred speech. Officer Thalheimer ordered Lynn to

remain seated and be quiet. Lynn ignored the command and instead, walked

closer to Officer Walters, gave him two “fairly decent slaps” on the back

causing Officer Walters to bend forward slightly, and stated “have a nice night

and get out.” (Tr. p. 39). Since Lynn was too close to him, Officer Walters

pushed Lynn away, which caused Lynn to fall. Officer Walters also asked

Lynn not to touch the police. When Lynn regained his balance, he squared his

body toward Officer Walters, and with a balled fist told Officer Walters that “he

was going to beat [his] ass.” (Tr. p. 41). Officer Walters ordered Lynn to sit

down, and Lynn complied. At that point, Officer Walters resumed his arrest of

Eric for battery. Eric obeyed and placed his hands behind his back. However,


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after Officer Walters got one handcuff on Eric’s left arm, Lynn got up from the

couch again and yelled “you’re not going to fucking arrest my son,” and he

attempted to charge at Officer Walters. (Tr. pp. 42-43). Lynn’s charge was

subverted by Officer Thalheimer, who tackled Lynn to a nearby couch. Once

on the couch, Lynn attempted to free himself from Officer Thalheimer’s hold,

and Lynn told Officer Thalheimer to get off him. Officer Thalheimier

commanded Lynn to stop resisting but Lynn refused and continued to struggle

causing them to both roll off the couch and onto the floor. Once on the floor,

Officer Thalheimer used his body weight to subdue Lynn and he effectively

handcuffed him.


Eric’s observation of his father being arrested made him belligerent and

aggressive. Since Officer Walters had not yet fully handcuffed Eric, Eric lunged

toward Officer Thalheimer. However, Officer Walters quickly interceded

before Eric could attack Officer Thalheimer. After Eric’s failed attempt to

charge Officer Thalheimer, Officer Walters, who still had one handcuff on Eric,

grabbed Eric’s left arm into a “half-nelson head restraint.” (Appellant’s App.

12). Officer Walters then pressed Eric down to his knees. All the while, Eric

tried to stand up but Officer Walters applied a wristlock, placed his knee in the

middle of Eric’s shoulder blades, and directed Eric to give his right hand.

Finally, Eric agreed.


The following day, June 22, 2014, the State filed an Information charging Lynn

with resisting law enforcement, a Class A misdemeanor, Ind. Code § 35-44.1-3-

1(a)(1) (2013); and battery, a Class A misdemeanor, Ind. Code § 35-42-2-

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1(a)(1)(b) (2012). On August 24, 2014, Lynn filed a pre-trial motion to suppress

the evidence obtained by the officers during his arrest. In support of this

motion, Lynn claimed that the challenged evidence should be suppressed

because the police entry into his home was unlawful. On September 9, 2014, at

the beginning of Lynn’s bench trial, the trial court heard Lynn’s motion. After

receiving arguments from both parties, the trial court denied Lynn’s motion,

finding that Linhart resided in Lynn’s home since January 2014, and Linhart

had lawfully welcomed the officers into the home. The trial court then

proceeded to Lynn’s bench trial. At the conclusion of Lynn’s bench trial, Lynn

was found guilty as charged. The trial court sentenced Lynn to concurrent

sentences of 365 days on each Count—four of which were executed—with 361

days on each Count suspended.


Lynn now appeals. Additional information will be provided as necessary.


                             DISCUSSION AND DECISION

                                      I. Standard of Review

Lynn claims that there is insufficient evidence to sustain his Class A

misdemeanor convictions for resisting law enforcement and battery. Our

standard of review for sufficiency claims is well settled. We neither reweigh the

evidence nor judge the credibility of the witnesses. Perrey v. State, 824 N.E.2d

372, 373 (Ind. Ct. App. 2005), trans. denied. We only consider the evidence

most favorable to the judgment and the reasonable inferences to be drawn

therefrom. Id. Where there is substantial evidence of probative value to

support the judgment, it will not be set aside. Id.
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                                A. Resisting Law Enforcement

First, Lynn argues that there was insufficient evidence that he committed the

crime of resisting law enforcement. “A person who knowingly or intentionally

. . . forcibly resists, obstructs, or interferes with a law enforcement officer ...

while the officer is lawfully engaged in the execution of the officer’s duties . . .

commits resisting law enforcement . . . ” I.C. § 35-44.1-3-1(a)(1) (2013). The

term “forcibly” is a distinct element of the offense that modifies all three verbs

“resists, obstructs, or interferes.” K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013)

(citing Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993)). Forcible resistance

includes “at a minimum, some physical interaction with a law enforcement

officer.” Macy v. State, 9 N.E.3d 249, 253 (Ind. Ct. App. 2014). Forcible

resistance may be said to occur when a “threatening gesture or movement . . .

presents an imminent danger of bodily injury [to an officer].” Walker v. State,

998 N.E.2d 724, 727 (Ind. 2013) (holding there was sufficient evidence of

forcible resistance where defendant aggressively advanced toward a police

officer with his fists clenched after being ordered to lay on the ground).


In the present case, Linhart directed the officers inside Lynn’s home to

investigate a potential domestic abuse. Lynn was upset that the officers were

inside his home, and he ordered them to leave. Despite Lynn’s directive, the

officers commanded Lynn to remain seated and quiet. When Lynn saw Officer

Walters placing Eric in handcuffs, he became belligerent. At that point, Lynn

stood up from the couch and yelled profanities at the officers. Lynn also tried

to charge Officer Walters, but Officer Thalheimer tackled Lynn to a nearby

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couch. Officer Thalheimer restrained Lynn on the couch. Repeatedly, Lynn

attempted to free himself, and he told Officer Thalheimer to get off him. Lynn

continued struggling with Officer Thalheimer and it caused them both to roll off

onto the floor. Officer Thalheimer used his body weight to subdue Lynn and he

successfully cuffed him.


From the foregoing facts, we conclude that Lynn knowingly or intentionally

forcibly resisted a law enforcement officer while the officer was lawfully

engaged in the execution of the officer’s duties—investigating the domestic

disturbance and arresting Eric for battery. We therefore conclude that the

evidence is sufficient to support Lynn’s conviction for resisting law

enforcement. Lynn’s claim to the contrary amounts to an invitation for this

court to reweigh the evidence, which we will not do. See Perrey, 824 N.E.2d at

373.


                                             B. Battery

Turning to his battery offense, the trial court convicted Lynn of battery as a

Class A misdemeanor. Thus, the State’s evidence had to show that Lynn

knowingly or intentionally touched Officer Walters in a rude, insolent, or angry

manner. See I.C. § 35-42-2-1(a)(1)(b)(2013). “A person engages in conduct

knowingly if, when he engages in the conduct, he is aware of a high probability

that he is doing so.” I.C. § 35-41-2-2(b). We note that touching, no matter how

slight, may be a battery. Impson v. State, 721 N.E.2d 1275, 1285 (Ind. Ct. App.

2000). “Indeed, a person may commit the touching necessary for battery by


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touching another’s apparel because it is intimately connected with the person

and is regarded as part of a person for purposes of the battery statute.” Id.


Lynn argues that his conviction for battery should be reversed because “the

backslapping combined with the statement, ‘have a nice night’ takes this

exchange outside the parameters of a criminal act.” (Appellant’s App. p. 8).

We disagree. The record shows that after the officers refused to leave, Lynn

walked close to Officer Walters, gave him two slaps on the back and told him to

get out. In addition, there was testimony from both officers that Lynn was

angry at the time. As a result, this evidence was sufficient for the trial court to

infer that a battery occurred.


                                        CONCLUSION

Based on the foregoing, we conclude that the State presented sufficient evidence

to support Lynn’s convictions for resisting law enforcement and battery.


Affirmed.


Bailey, J. and Barnes, J. concur




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