MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                             Mar 10 2016, 8:20 am
this 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.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Ruth Johnson                                             Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Appellate Division
                                                         Larry D. Allen
Indianapolis, Indiana                                    Deputy Attorney General
Timothy J. Burns                                         Indianapolis, Indiana
Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Gilberto Jimenez,                                        March 10, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1506-CR-536
        v.                                               Appeal from the
                                                         Marion Superior Court
State of Indiana,                                        The Honorable Dylan A. Vigh,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         49F09-1403-CM-11153



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-536 | March 10, 2016      Page 1 of 10
[1]   Following a bench trial, Gilberto Jimenez (“Jimenez”) was convicted of Class

      A misdemeanor resisting law enforcement.1 He appeals, asserting that the

      evidence was insufficient to convict him because, when he struggled with a

      police officer, he mistakenly believed that the police officer was a thief attacking

      his son.


[2]   We affirm.


                                   Facts and Procedural History
[3]   Around 10:00 p.m. on the night of March 4, 2014, Indianapolis Metropolitan

      Police Department (“IMPD”) received a report of a hit and run accident in

      which a pedestrian had been struck by a green Ford. IMPD Officer Joe Kellar

      was dispatched to the area to search for the vehicle. While patrolling an

      apartment complex, Officer Kellar located a vehicle that matched the

      description and license plate of the Ford involved in the accident. As Officer

      Kellar approached the green Ford in his marked patrol car, a man, later

      identified as Yeckzee Jimenez (“Yeckzee”),2 who is Jimenez’s son, exited the

      car. Officer Kellar parked his patrol car, got out, and walked toward the green

      Ford. At that time, Yeckzee emerged from the shadow of a nearby apartment

      building and started to walk toward the Ford. Officer Kellar, who was in “full




      1
        See Ind. Code § 35-44.1-3-1(a)(1). We note that this statute was amended effective July 1, 2014; however,
      Jimenez committed his offense in March 2014, and we will apply the statute in effect at that time.
      2
       We note that the Transcript spells his name both as “Yeckzze” and “Yeckzee.” Tr. at 27, 29, 37. Jimenez’s
      brief uses the latter spelling, Yeckzee, Appellant’s Br. at 3-4, and we will do the same.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-536 | March 10, 2016             Page 2 of 10
      police uniform,” asked to speak with Yeckzee, but he looked at Officer Kellar

      and ran away. Tr. at 21. When Officer Kellar ordered Yeckzee to stop, he did

      not, and he ran to the door of a nearby townhome. Officer Kellar chased

      Yeckzee a short distance and advised IMPD dispatch of the situation.


[4]   When Yeckzee arrived at the townhome, he began to open the front door, but

      Officer Kellar caught up to Yeckzee before he entered the home and grabbed

      Yeckzee by the jacket in order to detain him. Yeckzee wrestled with Officer

      Kellar, punching him in the chest and pulling away. Yeckzee was able to get

      the door open and tried to get inside the residence. As Officer Kellar was

      fighting with Yeckzee and attempting to place him in handcuffs, an individual

      who had been inside the residence, later identified as Jimenez, came out and

      “came toward” Officer Kellar. Id. at 23. Jimenez pushed Officer Kellar

      backward, punched him in the chest, and attempted to pull Yeckzee inside the

      home and away from Officer Kellar’s grasp. Jimenez was “angry” and was

      yelling at Officer Kellar. Id. at 24. Yeckzee was attempting to slip out of his

      jacket in order to escape Officer Kellar’s grasp and get into the residence. At

      some point in the struggle, Officer Michael Kavanaugh arrived, grabbed

      Yeckzee, and wrestled him to the ground. Both Yeckzee and Jimenez were

      placed in handcuffs.


[5]   The State charged Jimenez with Class A battery on a police officer and Class A

      misdemeanor resisting law enforcement. At the bench trial, Officer Kellar

      testified that the struggle with Yeckzee and Jimenez lasted sixty to ninety

      seconds, until back-up assistance arrived. Officer Kellar described that Jimenez

      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-536 | March 10, 2016   Page 3 of 10
      was pushing him in a “violent” manner and was “slamming the door into me.”

      Id. at 32-33. Officer Kellar testified that he verbally identified himself as

      “police” and yelled at Jimenez to stop and “get back,” but Jimenez continued

      to attempt to push Officer Kellar away and pull Yeckzee inside the residence.

      Id. at 25. Because Officer Kellar noticed that Jimenez was yelling in Spanish,

      Officer Kellar yelled, “policia” two to three times. Id. at 25, 34. Officer Kellar

      described the “full uniform” that he was wearing that night as including a

      baseball hat with an IMPD badge on the front of it, cargo pants, and long

      sleeves. Id. at 30. The uniform included a police badge and IMPD markings.

      Officer Kellar described that it stated “Indianapolis Metro Police” in “very

      large” letters. Id. at 34. Officer Kellar was also wearing his police belt with all

      the usual police equipment and tools on it.


[6]   Jimenez testified that on the night in question, around 9:00 or 9:30 p.m., he was

      preparing dinner in the kitchen of the apartment where he lived with his son,

      Yeckzee. Jimenez stated that, around that time period, he had seen his son go

      into his bedroom, come back out, and leave the apartment, but Yeckzee came

      back after a few minutes, and Jimenez told him that he was making dinner.

      Three or four minutes later, Jimenez “heard a struggle like a noise in the door.”

      Id. at 38. Jimenez looked out a window to see what was happening, and he

      saw someone wearing a black jacket grabbing Yeckzee’s jacket, and they were

      struggling. Jimenez testified that he saw his son trying to close the front door,

      and Jimenez believed that “someone was mugging my son.” Id. at 40. Having

      been a victim of theft before, Jimenez “was so scared” that it was happening


      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-536 | March 10, 2016   Page 4 of 10
      again. Id. Jimenez said he reached out of the door, that was open about one

      foot, and tried to intervene and help his son, but he denied striking the

      individual, who was Officer Kellar, stating that he only tried to separate the

      hand that was grabbing his son’s jacket. Jimenez explained that he did not see

      the police uniform, as the person was “hunched over,” and “[t]he only thing I

      could see was the hand” and a black jacket. Id. at 41, 43. Jimenez testified that

      the light in the inside corridor and living room was turned off, and that the only

      inside light that was on was in the kitchen. He said that as soon as he heard the

      word “police” he immediately “moved away[.]” Id. at 42. He said another

      officer arrived at the scene, and he allowed both of them into the apartment.


[7]   The State called Officer Kellar as a rebuttal witness, and he testified to the

      lighting on the doorstep where the altercation took place. He said that it was a

      single “household” bulb “attached to the outer wall beside the door” that

      illuminated the immediate area around the door entrance. Id. at 44. Officer

      Kellar described that it was sufficient for him to “get a good look at” Yeckzee

      and Jimenez. Id. at 45. Officer Kellar did not remember if he was wearing a

      jacket that night, but stated that, if he was, as Jimenez recalled seeing, it has a

      badge on it and IMPD patches on the shoulders. Officer Kellar testified that,

      contrary to Jimenez’s testimony, Jimenez did not stop struggling as soon as

      Officer Kellar said “policia,” recalling that he had to yell it multiple times. Id.

      at 46. Officer Kellar acknowledged that his police car was not visible from the

      apartment doorstep.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-536 | March 10, 2016   Page 5 of 10
[8]    The trial court took the matter under advisement, ultimately finding Jimenez

       guilty of resisting law enforcement.3 Jimenez now appeals.


                                        Discussion and Decision
[9]    In reviewing a challenge to the sufficiency of the evidence, we will not reweigh

       the evidence or judge the credibility of the witnesses. Johnson v. State, 833

       N.E.2d 516, 517 (Ind. Ct. App. 2005). We consider only the evidence that

       supports the conviction and any reasonable inferences supporting the

       conviction. Jordan v. State, 37 N.E.3d 525, 530 (Ind. Ct. App. 2015). We will

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

       the crime proven beyond a reasonable doubt. Id. (quotations omitted). It is not

       necessary that the evidence overcome every reasonable hypothesis of

       innocence. Id.


[10]   Indiana Code section 35-44-3-3(a) states, “A person who knowingly or

       intentionally: (1) 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 his duties as an officer . . . commits resisting law enforcement,

       a Class A misdemeanor.” Thus, to convict Jimenez of resisting law

       enforcement as a Class A misdemeanor, the State needed to prove that he

       knowingly or intentionally forcibly resisted, obstructed, or interfered with




       3
         The trial court sentenced Jimenez to one year in the county jail, all of which was suspended except for
       credit for time served, and ordered no probation but required Jimenez to perform thirty-two hours of
       community service.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-536 | March 10, 2016              Page 6 of 10
       Officer Kellar while he was lawfully engaged in the execution of his duties.

       Our Supreme Court has 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.” Jordan, 37 N.E.3d at 534 (citing Spangler v. State, 607

       N.E.2d 720, 722-23 (Ind. 1993)). Any action to resist must be done with force

       in order to violate the statute. Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013).

       “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.” Id.


[11]   Here, Officer Kellar located a vehicle that matched the description and license

       plate of the one that was involved in the hit and run accident, where a vehicle

       was reported as having hit an individual as well as several parked cars. Officer

       Kellar saw a man, Yeckzee, exit the subject car and then shortly thereafter

       return to it, and when Officer Kellar attempted to speak to Yeckzee, he ran.

       Officer Kellar grabbed Yeckzee at the door to the townhome to stop him from

       entering the residence. As Officer Kellar was “fighting and attempting to get

       [Yeckzee] in custody,” Jimenez came out or reached out of the home and

       injected himself into the physical altercation. Tr. at 24. Jimenez physically

       pushed Officer Keller back, punched him in the chest, and shoved the door into

       him; Officer Kellar described that Jimenez was trying to push Officer Kellar

       away so that he could pull Yeckzee inside the home. During this time, Jimenez

       was angry and was yelling in Spanish at Officer Kellar. Jimenez claims that he


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-536 | March 10, 2016   Page 7 of 10
       did not push Officer Keller and testified that he only tried to remove Officer

       Kellar’s grasp on his son’s jacket. It is for the trial court to resolve conflicting

       evidence. Jordan, 37 N.E.3d at 530 (appellate court does not assess witness

       credibility). Jimenez’s conviction reflects that the trial court believed Officer

       Kellar’s testimony that Jimenez applied force in attempting to shove Officer

       Kellar away from Yeckzee, a suspect, and Officer Kellar had to exert force to

       counteract this resistance. From the record before us, we find that the State

       presented sufficient evidence that Jimenez forcibly interfered with Officer

       Kellar’s lawful execution of his duties.


[12]   Jimenez maintains that the evidence was not sufficient to convict him because

       he mistakenly thought that Officer Kellar was a stranger who was attempting to

       mug his son, and, therefore, due to a mistake of fact, any interference was not

       knowing. Indiana Code section 35-41-3-7 provides: “It is a defense that the

       person who engaged in the prohibited conduct was reasonably mistaken about a

       matter of fact, if the mistake negates the culpability required for commission of

       the offense.” When the State has made a prima facie case of guilt, the burden

       shifts to the defendant to establish an evidentiary predicate for the defendant’s

       alleged mistake of fact. Chavers v. State, 991 N.E.2d 148, 151 (Ind. Ct. App.

       2013), trans. denied. The defendant must show three things to establish his

       defense of mistake of fact: (1) the mistake was honest and reasonable; (2) the

       mistake was about a matter of fact; and (3) the mistake negates the culpability

       for the crime. Ind. Code § 35-41-3-7; Johnson v. State, 38 N.E.3d 686, 692 (Ind.

       Ct. App. 2015). The State retains the ultimate burden of proving beyond a


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-536 | March 10, 2016   Page 8 of 10
       reasonable doubt every element of the charged crime, including culpability or

       intent. Johnson, 38 N.E.3d at 692. The State may meet this burden with respect

       to the mistake of fact defense in several ways, including (1) directly rebutting

       the defendant’s evidence, (2) affirmatively showing that the defendant made no

       such mistake, or (3) relying upon evidence from its case-in-chief. Id.


[13]   Here, in explaining why he did not see the police markings on the person’s

       clothing, Jimenez testified that the door was only open about a foot and that all

       he could see was a hand and dark jacket. He did not testify about exterior

       lighting, but said that the only light on in the home was one in the kitchen.

       Officer Kellar, however, testified that the lighting on the doorstep of the home

       was adequate for him to “get a good look at” both Yeckzee and Jimenez. Tr. at

       45. From this evidence, the trier of fact could infer that the lighting in the area

       was sufficient for Jimenez to see Officer Kellar, who was wearing a “full police

       uniform,” which included a police badge, IMPD markings on the hat, a police

       belt with the usual law enforcement tools, and large “Indianapolis Metro

       Police” lettering on the jacket, as well as shoulder patches, if he was wearing a

       jacket, as Jimenez testified that he was. Id. at 21, 34. Officer Kellar also

       testified that he yelled “police” and “policia” multiple times, and Jimenez did

       not immediately stop. Id. at 25, 34. We find that Officer Kellar’s testimony

       was sufficient to rebut Jimenez’s defense of mistake of fact, and his assertion on

       appeal that he did not know or recognize that Officer Kellar was a police officer

       is a request for us to reweigh the evidence, which we cannot do. Johnson, 38

       N.E.3d at 693. Considering the evidence favorable to the conviction, and in


       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-536 | March 10, 2016   Page 9 of 10
       deference to the trial court’s assessment of witness credibility, we conclude that

       the evidence was sufficient to support Jimenez’s conviction for Class A

       misdemeanor resisting law enforcement.


[14]   Affirmed.


[15]   Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1506-CR-536 | March 10, 2016   Page 10 of 10
