FOR PUBLICATION
                                                           Oct 31 2013, 5:31 am




ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

RUTH JOHNSON                                  GREGORY F. ZOELLER
Marion County Public Defender Agency          Attorney General of Indiana

CERTIFIED LEGAL INTERN                        BRIAN REITZ
ERIC SOMMERS                                  Deputy Attorney General
Indianapolis, Indiana                         Indianapolis, Indiana


                             IN THE
                   COURT OF APPEALS OF INDIANA

COURTNEY GLENN,                               )
                                              )
      Appellant-Defendant,                    )
                                              )
             vs.                              )       No. 49A04-1302-CR-79
                                              )
STATE OF INDIANA,                             )
                                              )
      Appellee-Plaintiff.                     )


                      APPEAL FROM MARION SUPERIOR COURT
                         The Honorable James B. Osborn, Judge
                           Cause No. 49F15-1203-FD-20009


                                   October 31, 2013

                             OPINION - FOR PUBLICATION

MAY, Judge
         Courtney Glenn appeals her convictions of Class A misdemeanor resisting law

enforcement1 and Class B misdemeanor disorderly conduct.2 She presents the following

issues for our review:

         1.      Whether there was sufficient evidence to sustain Glenn’s convictions; and

         2.      Whether Glenn’s convictions subjected her to double jeopardy.

    We affirm.

                           FACTS AND PROCEDURAL HISTORY

         On March 25, 2012, Glenn entered a K-Mart and placed three shirts in her purse. As

Glenn left the store, a loss prevention officer detained her until police arrived. Responding

Officer Gary Smith found Glenn uncooperative and argumentative. While being escorted

from the store, Glenn refused to walk, aggressively attempted to pull free, and repeatedly

shouted profanities at Officer Smith. On more than one occasion, Officer Smith used a leg

sweep to regain control of Glenn. Outside the store, Glenn continued to argue loudly with

Officer Smith and tried to move around. Officer Smith told Glenn multiple times to remain

seated. While seated, Glenn freed one hand from the handcuffs, stood up, and swung the

handcuffed hand at Officer Smith, causing the handcuff to swing within a few inches of the

officer.

         The State charged Glenn with one count of Class D felony theft,3 one count of Class A

misdemeanor resisting law enforcement, and two counts of Class B misdemeanor disorderly


1
  Ind. Code § 35-44.1-3-1(a)(1).
2
  Ind. Code § 35-45-1-3(a)(1).
3
  Ind. Code § 35-43-4-2(a).
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conduct. The State dismissed the theft charge and tried Glenn to the bench on the remaining

charges. The court convicted Glenn of resisting law enforcement and one count of disorderly

conduct. The trial court sentenced her to 365 days, with 359 days suspended and 365 days

probation.

                              DISCUSSION AND DECISION

       1.      Sufficiency of the Evidence

       Glenn contends the State did not present sufficient evidence to support her

convictions. When we review sufficiency of evidence we do not reweigh evidence or assess

witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We consider only the

probative evidence and reasonable inferences supporting the verdict. Id. The evidence need

not overcome every inference of innocence. Id. at 147. Evidence is sufficient if it permits a

reasonably drawn inference that supports the verdict. Id. The conviction will be affirmed

“unless no reasonable fact-finder could find the elements of the crime proven beyond a

reasonable doubt.” Id.

               a.     Resisting Law Enforcement

       Class A misdemeanor resisting law enforcement occurs when a person “knowingly or

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

lawfully engaged in the execution of the officer’s duties.” Ind. Code § 35-44.1-3-1(a)(1).

One forcibly resists when “strong, powerful, violent means are used to evade a law

enforcement official’s rightful exercise of his or her duties.” Spangler v. State, 607 N.E.2d

720, 723 (Ind. 1993). Glenn contends her feet-dragging and multiple attempts to pull away

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from Officer Smith were not forcible resistance. We disagree.

       In Spangler, a Sheriff’s deputy attempted to serve Spangler, at his place of

employment, with a protective order issued against Spangler. Spangler refused to accept the

papers, told the deputy not to bother him at work, and walked away. When Spangler

continued to refuse to accept the documents or to comply with orders, the deputy arrested

him for disorderly conduct. The State charged Spangler with resisting law enforcement, but

the Court concluded Spangler did not act forcibly when no “strength, power, or violence”

was used and no “movement or threatening gesture” was directed at the police officer. Id. at

724.

       Glenn’s actions were not analogous to Spangler’s actions; rather, Glenn acted more

like the defendant in Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App. 2005). A police officer

twice asked Johnson to move his vehicle because it was blocking traffic. When Johnson

refused, the officer activated his lights, stepped out of his cruiser, and approached Johnson’s

driver side door. Johnson again refused to move his vehicle, and the officer placed him

under arrest. While being searched following arrest, Johnson turned and pushed away with

his shoulders while cursing and yelling. After being searched, Johnson refused to get into the

transport vehicle and he “stiffened up” so the officers had to exert physical force to place him

inside. Id. at 517. We concluded Johnson acted “forcibly” and affirmed his conviction of

resisting law enforcement. Id at 518.

       Glenn was convicted of resisting law enforcement after she refused to walk and, on

more than one occasion, “aggressively” tried to pull away from Officer Smith. (Tr. at 7.) As

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in Johnson, the resistance was forcible and there was ample evidence to support the

conviction.

              b.     Disorderly Conduct

       “A person who recklessly, knowingly, or intentionally . . . engages in fighting or in

tumultuous conduct” commits disorderly conduct. Ind. Code § 35-45-1-3(a)(1). Conduct is

“tumultuous” if it “results in, or is likely to result in, serious bodily injury to a person or

substantial damage to property.” Ind. Code § 35-45-1-1. Serious bodily injury occurs when

an injury “creates a substantial risk of death or . . . causes: (1) serious permanent

disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or

impairment of the function of a bodily member or organ . . . .” Ind. Code § 35-31.5-2-292.

Glenn asserts none of her actions were likely to result in serious bodily injury. We disagree.

        Officer Smith testified Glenn freed one of her hands from the handcuffs, stood up,

and then swung her handcuffed hand at him, bringing the handcuff within inches of him.

Glenn contends she was merely showing Officer Smith the handcuff malfunction and had no

intention of striking him. However, when evidence conflicts, as it does here, “we are bound

to view only that evidence which is most favorable to the verdict and all reasonable

inferences therefrom.” Bunting v. State, 731 N.E.2d 31, 33 (Ind. Ct. App. 2000), trans.

denied. Viewing the evidence most favorable to the conviction, a reasonable fact-finder

could conclude Glenn swung the handcuff at Officer Smith and serious bodily injury could

have resulted therefrom. See, e.g., Bailey v. State, 907 N.E.2d 1003, 1007 (Ind. 2009)

(affirming disorderly conduct conviction where a high school student threw down his drink,

                                              5
clenched his fists, and cursed in the face of a school official). Finding otherwise would

require us to weigh evidence and assess witness credibility, which we cannot do. See Drane,

867 N.E.2d at 146 (appellate court will not reweigh evidence or judge witness credibility).

       2.     Double Jeopardy

       Article I, Section 14 of the Indiana Constitution provides in relevant part: “No person

shall be put in jeopardy twice for the same offense.” Glenn asserts she was subjected to

double jeopardy when she was convicted of both resisting law enforcement and disorderly

conduct. She was not.

       Two offenses are the “same offense” in violation of Indiana’s Double Jeopardy Clause

if, with respect to either the statutory elements of the challenged crimes or the actual

evidence used to convict, the essential elements of one challenged offense also establish the

essential elements of another challenged offense. Spivey v. State, 761 N.E.2d 831, 832 (Ind.

2002). We review de novo whether a defendant’s convictions violate this provision. Spears

v. State, 735 N.E.2d 1161, 1166 (Ind. 2000), reh’g denied.

       Glenn contends she was subjected to double jeopardy under the “actual evidence” test.

To demonstrate two challenged offenses are the same under that test, a defendant must

demonstrate a reasonable possibility the evidentiary facts used by the fact-finder to establish

the essential elements of one offense may also have been used to establish the essential

elements of a second challenged offense. Id. We conduct our analysis by examining the

evidence presented at trial to determine whether each challenged offense was established by

separate and distinct facts. Richardson v. State, 717 N.E.2d 32, 53 (Ind. 1999). There is no

                                              6
double jeopardy violation when the evidentiary facts establishing the essential elements of

one offense establish only one or even several, but not all, of the elements of a second

offense. Spivey, 761 N.E.2d at 833.

       To determine what facts were used to convict, we consider the evidence, charging

information, final jury instructions, and arguments of counsel. Davis v. State, 770 N.E.2d

319, 324 (Ind. 2002), reh’g denied. To show Glenn resisted law enforcement, the State

presented evidence Glenn tried several times to aggressively push away from Officer Smith.

To show disorderly conduct, the State presented testimony that Glenn, while seated outside

the store, broke free from her handcuffs and swung them at Officer Smith.

       To support her contention she was subjected to double jeopardy, Glenn notes the trial

court did not fully explain which facts it relied on to support each conviction. This lack of

clarity, Glenn asserts, implies a reasonable possibility the court based both convictions on

identical facts. However, we assume the trial court, at a bench trial, followed the law and

applied it correctly. M.T. v. State, 787 N.E.2d 509, 513 (Ind. Ct. App. 2003). There was a

sufficient separate basis to convict Glenn of both resisting law enforcement and disorderly

conduct. See, e.g., Bald v. State, 766 N.E.2d 1170, 1172 (Ind. 2002) (holding simultaneous

convictions did not violate the state double jeopardy prohibition when each conviction rested

on at least one unique evidentiary fact).

                                      CONCLUSION

       The State presented sufficient evidence to convict Glenn of resisting law enforcement

and disorderly conduct, and Glenn has not demonstrated her convictions rested on identical

                                             7
facts in violation of Indiana’s double jeopardy provision. Accordingly, we affirm.

      Affirmed.

BAILEY, J., and BRADFORD, J., concur.




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