      MEMORANDUM DECISION                                                    FILED
                                                                        Jun 07 2016, 8:18 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as                           CLERK
                                                                         Indiana Supreme Court
      precedent or cited before any court except for the                    Court of Appeals
                                                                              and Tax Court
      purpose of establishing the defense of res judicata,
      collateral estoppel, or the law of the case.



      ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
      Mark A. Thoma                                          Gregory F. Zoeller
      Deputy Public Defender                                 Attorney General of Indiana
      Leonard, Hammond, Thoma & Terrill
                                                             James B. Martin
      Fort Wayne, Indiana
                                                             Deputy Attorney General
                                                             Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Mario D. Bell,                                             June 7, 2016

      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 02A05-1510-CR-1622

              v.                                                 Appeal from the Allen Superior
                                                                 Court
      State of Indiana,                                          The Hon. Frances C. Gull, Judge
                                                                 Trial Court Cause No. 02D05-1412-
      Appellee-Plaintiff.
                                                                 F4-42




      Bradford, Judge.



                                            Case Summary
[1]   In November of 2014, Fort Wayne Police Detective John Greenlee stopped a

      car driven by Appellant-Defendant Mario Bell because Bell was driving without

      Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016        Page 1 of 10
      his headlights when conditions warranted it. Detective Greenlee determined

      that the car Bell drove was not registered to him, and, when Detective Marin

      Grooms arrived, the detective decided to have Bell exit the car. When

      Detective Grooms touched Bell on the shoulder, Bell ran off with the Detectives

      in pursuit.


[2]   Detective Grooms caught up to Bell and tased him twice, at which point Bell

      appeared to have a seizure. Detective Greenlee handcuffed Bell in the front

      while medical assistance was summoned. Soon, however, Bell came to and

      attempted to push himself up off of the ground while three police officers

      pushed back. Eventually, six officers became involved in subduing Bell, who

      was thrashing wildly, kicking, and attempting to obtain one officer’s weapon,

      among other things. When Bell was finally brought under control, a bag of

      marijuana was found in his pocket. Meanwhile, a handgun had been found

      protruding from under the driver’s seat in the car Bell had been driving.


[3]   Appellee-Plaintiff the State charged Bell with Level 4 felony possession of a

      firearm by a serious violent felon (“SVF”), Level 6 felony resisting law

      enforcement, Level 6 felony theft, Class A misdemeanor resisting law

      enforcement, and Class B misdemeanor marijuana possession. A jury found

      Bell guilty as charged. The trial court sentenced Bell to an aggregate term of

      eight years of incarceration. Bell contends that the State produced insufficient

      evidence to sustain his convictions for SVF and Level 6 felony resisting law

      enforcement. Because we disagree, we affirm.



      Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 2 of 10
                            Facts and Procedural History
[4]   At approximately 5:00 p.m. on November 23, 2014, Detective Greenlee was on

      patrol when he noticed a car in front of him without its headlights on. Because

      visibility was poor, Detective Greenlee decided to stop the car and, to that end,

      activated his lights. Detective Greenlee first engaged Bell, who was the only

      person in the car, through the passenger-side window and noticed that Bell’s

      hands were shaking. Detective Greenlee also noticed that Bell was attempting

      to hurry the traffic stop along. Detective Greenlee identified Bell and

      determined that the car was not registered in Bell’s name. As it happened, Bell

      had borrowed the car from Charlene Woods, his sister. Detective Grooms soon

      arrived to assist Detective Greenlee.


[5]   Detectives Grooms and Greenlee consulted with each other, re-approached the

      car, and had Bell exit it. Detective Greenlee told Bell to speak with Detective

      Grooms, and, when Detective Grooms put his hand on Bell’s shoulder and

      said, “I need you to stand right here[,]” Bell ran. Tr. p. 244. The detectives

      pursued, with Detective Grooms catching up to Bell as he hopped a fence.

      Detective Grooms fired his taser and administered a five-second charge to Bell,

      who was initially incapacitated but soon attempted to rise. By this time,

      Detective Greenlee had arrived and Detective Grooms tased Bell again so that

      Detective Greenlee would have time to climb over the fence. At this point,

      Detective Grooms thought that Bell might be suffering a seizure, and Detective

      Greenlee observed that Bell “didn’t look like a person who [he’d] tased

      before[.]” Tr. p. 246. Detective Greenlee handcuffed Bell in the front out of

      Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 3 of 10
      concerns for Bell’s safety, and Detective Grooms called for immediate medical

      assistance.


[6]   Detective Greenlee rolled Bell onto his side, and, approximately forty-five

      seconds later, Bell started to regain consciousness. By this time, additional

      back-up had arrived. Although he was told repeatedly to “stay down,” Bell

      used both of his hands to push up from the ground, despite being pushed down

      by three police officers. Tr. p. 248. Bell was “thrashing violently” and forcibly

      resisting the officers’ efforts to keep him on the ground and handcuff him

      behind his back. Tr. p. 128.


[7]   Eventually, six officers joined in the attempt to subdue Bell, using various

      techniques to gain Bell’s compliance. Detective Grooms delivered three knee

      strikes to Bell’s thigh, which resulted in some temporary compliance. Officer

      John Drummer kicked Bell in the face after Bell grabbed his ankles and

      attempted to grab his gun. Eventually, the officers were able to force Bell’s

      arms behind his back and handcuff him. Officer Drummer found a small

      plastic bag in Bell’s right front pants pocket that contained marijuana. At one

      point during the melee with Bell, Detective Grooms’s foot slid in the mud and

      out from underneath him. Detective Grooms suffered a torn meniscus and

      some debris in his knee, which required surgery.


[8]   Meanwhile, Detective George Nicklow arrived and, while other officers

      struggled to take Bell into custody, secured the car Bell had been driving.

      Detective Nicklow found a Smith and Wesson handgun in plain view


      Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 4 of 10
       protruding from underneath the driver’s seat. It was later determined that the

       handgun had been stolen from John Mosely’s apartment some time not long

       before May 30, 2014.


[9]    On November 26, 2014, the State charged Bell with Level 4 felony SVF, Level

       6 felony resisting law enforcement, Level 6 felony theft, Class A misdemeanor

       resisting law enforcement, and Class B misdemeanor marijuana possession. On

       May 7, 2015, a jury found Bell guilty as charged. On June 9, 2015, the trial

       court sentenced Bell to eight years of incarceration for SVF, two years each for

       Level 6 felony resisting law enforcement and theft, one year for Class A

       misdemeanor resisting law enforcement, and 180 days for marijuana

       possession, all sentences to be served concurrently.


                                  Discussion and Decision
                                  Sufficiency of the Evidence
[10]   Bell contends that the State failed to produce sufficient evidence to sustain his

       convictions for SVF and resisting law enforcement. When reviewing the

       sufficiency of the evidence, we neither weigh the evidence nor resolve questions

       of credibility. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995). We look only to

       the evidence of probative value and the reasonable inferences to be drawn

       therefrom which support the verdict. Id. If from that viewpoint there is

       evidence of probative value from which a reasonable trier of fact could conclude

       that the defendant was guilty beyond a reasonable doubt, we will affirm the

       conviction. Spangler v. State, 607 N.E.2d 720, 724 (Ind. 1993).

       Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 5 of 10
                                                     I. SVF
[11]   Pursuant to Indiana Code section 35-47-4-5(c), “[a] serious violent felon who

       knowingly or intentionally possesses a firearm commits unlawful possession of

       a firearm by a serious violent felon, a Level 4 felony.” Bell does not contest his

       status as a serious violent felon and argues only that the State failed to prove

       that he possessed the firearm. Possession of contraband can be actual or

       constructive: “Actual possession occurs when a person has direct physical

       control over the item [and c]onstructive possession occurs when somebody has

       the intent and capability to maintain dominion and control over the item.”

       Henderson v. State, 715 N.E.2d 833, 835 (Ind. 1999) (citation and internal

       quotation omitted). “In cases where the defendant has exclusive possession

       over the premises on which the contraband is found, an inference is permitted

       that the defendant knew of its presence and was capable of controlling it.”

       Washington v. State, 902 N.E.2d 280, 288 (Ind. Ct. App. 2009) (citing Macklin v.

       State, 701 N.E.2d 1247, 1251 (Ind. Ct. App. 1998)).


[12]   The evidence presented at trial supports a finding of exclusive control of the car

       by Bell for some time prior to his arrest on November 23, 2014. Woods

       testified that she lent the car to Bell in November of 2014, and Woods told

       Detective Greenlee that Bell had had the car for four weeks as of November 23,

       2014. Woods testified that neither she nor her husband owned a handgun or

       had placed one in the car.


[13]   Bell points to his testimony that he lent the car to a friend whose wife owned a

       gun three days before his arrest and only retrieved it approximately one hour
       Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 6 of 10
       before his arrest. The jury, however, was not required to credit this testimony

       and did not. In any event, Woods testified that she saw the car at Bell’s

       residence both two days before the arrest and two hours before the arrest,

       directly contradicting Bell’s testimony on this point. The State produced

       sufficient evidence to establish Bell’s exclusive control of the car during the

       relevant time period, which is sufficient to permit an inference that Bell knew of

       the handgun’s presence and was capable of controlling it. See, e.g., Bradshaw v.

       State, 818 N.E.2d 59, 63 (Ind. Ct. App. 2004) (“In this case, the handgun seized

       from the vehicle was located directly beneath the seat that Bradshaw occupied

       when the stop occurred. Moreover, the handle of the pistol was visible to

       Officer Luster, it faced the front of the vehicle and the gun was easily accessible

       to Bradshaw, who had been riding as a front-seat passenger. Bradshaw engaged

       in furtive movements by fidgeting around his waist and by reaching under the

       seat. When Officer Luster announced that a gun had been seized from the

       vehicle, Bradshaw attempted to flee the scene. In light of this evidence, we

       conclude that there is probative evidence from which a reasonable fact finder

       could conclude that Bradshaw was in possession of the handgun.”) (record

       citations omitted).


                                II. Resisting Law Enforcement
[14]   In order to convict Bell of Level 6 felony resisting law enforcement, the State

       was required to establish that he

               knowingly or intentionally … forcibly resist[ed], obstruct[ed], or
               interfere[d] with a law enforcement officer or a person assisting

       Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 7 of 10
               the officer while the officer is lawfully engaged in the execution
               of the officer’s duties [and] dr[ew] or use[d] a deadly weapon,
               inflict[ed] bodily injury on or otherwise cause[d] bodily injury to
               another person, or operate[d] a vehicle in a manner that creates a
               substantial risk of bodily injury to another person[.]
       Ind. Code § 35-44.1-3-1(a). -1(b).


[15]   Bell first argues that he had no recollection of the altercation with police

       officers, thereby negating any finding that he had the necessary mens rea. The

       jury was not required to credit Bell’s self-serving testimony on this point, and

       did not. In any event, an audio recording of the incident would seem to

       strongly contradict Bell’s account, as Bell can be heard shouting at police

       officers for over five minutes as they struggled to subdue him. Bell invites us to

       reweigh the evidence, which we will not do.


[16]   Bell next argues that the State failed to establish that his resistance was

       “forcible.” As the Indiana Supreme Court has clarified,


               In Spangler v. State, we 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. 607 N.E.2d 720, 722-23 (Ind. 1993). We also held
               that the word meant “something more than mere action.” Id. 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 02A05-1510-CR-1622 | June 7, 2016   Page 8 of 10
               But even so, “the statute does not demand complete passivity.”
               K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013). In Graham v.
               State, we clarified that “[t]he force involved need not rise to the
               level of mayhem.” 903 N.E.2d 963, 965 (Ind. 2009). In fact,
               even a very “modest level of resistance” might support the
               offense. Id. at 966 (“even ‘stiffening’ of one’s arms when an
               officer grabs hold to position them for cuffing would suffice”).
       Walker v. State, 998 N.E.2d 724, 726-27 (Ind. 2013).


[17]   Bell contends that the evidence establishes nothing more than that he was

       merely trying to lift himself off the ground to breathe. The State presented

       ample evidence to establish otherwise. Detective Grooms testified that six

       police officers in total were required to gain control of Bell, Bell was thrashing

       violently and resisted all efforts to keep him on the ground, and Bell was

       kicking as he attempted to control Bell’s legs. Detective Grooms characterized

       the struggle as a “fight[.]” Tr. p. 128. Detective Grooms also described

       “wrestling” with Bell when he slipped and injured his knee. Tr. p. 128. Officer

       Drummer testified that Bell used his hands to push officers away, Bell grabbed

       his ankles, Bell attempted to grab his gun, and officers had to force Bell’s arms

       behind his back. Detective Greenlee testified that Bell pushed himself off of the

       ground with three officers pushing him down and that it took the efforts of all of

       the officers present to handcuff Bell behind his back. To say the least, the State

       produced ample evidence to establish that Bell forcibly resisted the officers.

       Again, Bell invites us to reweigh the evidence, which we will not do.


[18]   Finally, Bell cites Smith v. State, 21 N.E.3d 121 (Ind. Ct. App. 2014), and argues

       that the State has not established that his resistance caused Detective Grooms’s

       Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 9 of 10
       injury. As mentioned, in order to support a conviction for Level 6 felony

       resisting law enforcement, the State was required to prove, inter alia, that Bell

       “inflict[ed] bodily injury on or otherwise cause[d] bodily injury to another

       person[.]” Ind. Code § 35-44.1-3-1(b). In Smith, a police officer attempted to

       handcuff Smith, suspected of shoplifting, but Smith refused to comply. Smith,

       21 N.E.3d at 123. Finally, the officer pulled Smith’s arm as hard as he could,

       and the duo ended up on the ground. Id. The Officer suffered lacerations from

       being on the pavement. Id. We concluded that the State failed to establish that

       Smith inflicted or caused the injury to the officer because the officer fell when

       forcing her to the ground and she was a passive participant in the encounter.

       Id. at 125.


[19]   Smith, however, is easily distinguished from the instant case. Here, instead of

       being passive, Bell was violently thrashing and resisting all attempts to subdue

       him, kicking, grabbing, and otherwise using great force against the officers.

       Detective Grooms slipped in the mud and injured his knee as a direct result of

       Bell’s kicking, which kicking Detective Grooms was trying to control when he

       was injured. Again, Bell’s argument in this regard is nothing more than an

       invitation to reweigh the evidence, which we will not do.


[20]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 10 of 10
