MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Feb 27 2018, 10:37 am
regarded as precedent or cited before any                                    CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court


estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Wieneke Law Office, LLC                                  Attorney General of Indiana
Brooklyn, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Melissa M. Serrano,                                      February 27, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         42A04-1709-CR-2039
        v.                                               Appeal from the Knox Superior
                                                         Court
State of Indiana,                                        The Honorable Ryan D.
Appellee-Plaintiff.                                      Johanningsmeier, Judge
                                                         Trial Court Cause No.
                                                         42D02-1705-CM-400



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 42A04-1709-CR-2039 | February 27, 2018         Page 1 of 5
                                           Case Summary
[1]   Melissa Serrano (“Serrano”) appeals her conviction for Resisting Law

      Enforcement, as a Class A misdemeanor,1 presenting the sole issue of whether

      there is sufficient evidence of force to support the conviction. We reverse.



                                Facts and Procedural History
[2]   On May 5, 2017, Vincennes Police Officer Shane Selby (“Officer Selby”) and

      other officers responded to a 9-1-1 call placed either by Serrano or her friend.

      During the investigation, Officer Selby learned that there was an active warrant

      for Serrano’s arrest for false informing.


[3]   At the time that the warrant was discovered, Serrano was standing in the

      doorway of her apartment. Officer Jonathan Alexander (“Officer Alexander”)

      asked Serrano to come outside and speak with the officers; in response, Serrano

      attempted to close the door and retreat into her apartment. Officer Alexander

      “grabbed a hold of the door” and both officers “grabbed a hold of [Serrano] and

      was [sic] bringing her out and she started to struggle.” (Tr. at 7.) The officers

      placed Serrano in handcuffs, with her “yelling at” them. (Tr. at 7.)


[4]   Serrano was charged with resisting law enforcement and was convicted of that

      charge in a bench trial conducted on August 7, 2017. Serrano was sentenced to




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


      Court of Appeals of Indiana | Memorandum Decision 42A04-1709-CR-2039 | February 27, 2018   Page 2 of 5
      a one-year term of imprisonment, all suspended to formal probation with work

      release. Serrano now appeals.



                                 Discussion and Decision
[5]   In reviewing a sufficiency of the evidence claim, we do not reweigh the

      evidence or assess the credibility of witnesses. K.W. v. State, 984 N.E.2d 610,

      612 (Ind. 2013). We look to the evidence and reasonable inferences drawn

      therefrom that support the judgment, and affirm if there is probative evidence

      from which a reasonable factfinder could have found the defendant guilty

      beyond a reasonable doubt. Id. We will reverse if there is no evidence or

      reasonable inference to support any one of the necessary elements of the

      charged offense. Id.


[6]   The basic offense of resisting law enforcement has five essential elements. See

      id. Pursuant to Indiana Code Section 35-44.1-3-1, a defendant has committed

      resisting law enforcement when he or she (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. Id. One “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. (citing Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993)).

      The level of force need not rise to the level of mayhem, but the statute does not

      demand complete passivity. Id. Merely walking away from a law-enforcement

      encounter, leaning away from an officer’s grasp, or twisting and turning a little

      Court of Appeals of Indiana | Memorandum Decision 42A04-1709-CR-2039 | February 27, 2018   Page 3 of 5
      bit against an officer’s actions are examples of conduct that do not amount to

      “forcible” resistance. Id.


[7]   The State presented a sole witness, Officer Selby, who testified that Officer

      Alexander grabbed Serrano by one arm, and he took the other. Officer Selby

      further testified that Serrano “started to struggle,” Tr. at 7, but on cross-

      examination, he clarified that Serrano was “not violent”:


              Question: Did she push Officer Alexander that you saw?


              Officer Selby: No.


              Question: Did she strike either one of you?


              Officer Selby: No.


              Question: Did she kick either one of you?


              Officer Selby: No.


              Question: Did she become overly violent with either of you?


              Officer Selby: She was resisting. She was –


              Question: I didn’t ask if she was resisting. That’s for the Court
              to decide, was she overly violent with you?


              Officer Selby: Not violent. No.


      (Tr. at 14.)

      Court of Appeals of Indiana | Memorandum Decision 42A04-1709-CR-2039 | February 27, 2018   Page 4 of 5
[8]   The State directs our attention to the testimony that Serrano “yanked her arms

      away” and that something “like a tug of war” took place. (Tr. at 16.) This

      testimony indicates that there was movement back and forth with exertion by

      both the officers and Serrano. However, we are mindful that Officer Selby

      specifically denied that Serrano’s conduct was violent. Without evidence of the

      material element of “forcible” resistance, as defined in K.W. and Spangler,

      Serrano’s conviction for resisting law enforcement cannot be sustained.


[9]   Reversed.


      Kirsch, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 42A04-1709-CR-2039 | February 27, 2018   Page 5 of 5
