MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Sep 12 2019, 8:50 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Sally Skodinski                                          Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Courtney Staton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Justin Vance,                                            September 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2924
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable John M.
Appellee-Plaintiff.                                      Marnocha, Judge
                                                         The Honorable Julie Verheye,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         71D02-1805-CM-1714



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019              Page 1 of 5
[1]   Justin Vance appeals his conviction of resisting law enforcement, a Class A
                           1
      misdemeanor, arguing that the evidence is not sufficient to support his

      conviction. Concluding that the State’s evidence is sufficient, we affirm.


[2]   One evening in May 2018, Officer Fredenburg of the South Bend Police

      Department was dispatched to a residence. As he approached the home, he

      could hear screaming and yelling coming from inside, and, when he entered the

      house, he observed a table turned over, glass on the floor, blood in the kitchen,

      and two males wrestling on the floor. The two men, who were eventually

      identified as Vance and his son, were separated by Officer Fredenburg and

      other responding officers. Vance’s son had to be further subdued because, even

      after being separated from Vance, he continued to try to attack Vance and

      ripped Officer Fredenburg’s microphone off his vest. As the officers were

      subduing Vance’s son, family members in the home began yelling at and

      assaulting the officers.


[3]   Once the officers had the other family members under control, they attempted

      to detain and handcuff Vance. Vance pulled away from the officers and

      clenched his fists. When one officer was able to grab Vance, Vance tried to

      push the officer off of him. The officers took Vance to the ground, but, once on

      the ground, Vance kept his arms underneath his body, and he was screaming

      and swearing at the officers. Finally, one of the officers got on Vance’s back




      1
          Ind. Code § 35-44.1-3-1 (2016).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019   Page 2 of 5
      and pulled one of his arms from underneath him so that he could be

      handcuffed. Based upon this incident, the State charged Vance with resisting

      law enforcement. Following a bench trial, Vance was found guilty and

      sentenced to thirty days. He now appeals this conviction.


[4]   When we review a challenge to the sufficiency of the evidence, we neither

      reweigh the evidence nor judge the credibility of the witnesses. Sandleben v.

      State, 29 N.E.3d 126 (Ind. Ct. App. 2015), trans. denied. Instead, we consider

      only the evidence most favorable to the judgment and any reasonable inferences

      drawn therefrom. Id. If there is substantial evidence of probative value from

      which a reasonable fact-finder could have found the defendant guilty beyond a

      reasonable doubt, the judgment will not be disturbed. Labarr v. State, 36 N.E.3d

      501 (Ind. Ct. App. 2015).


[5]   In order to obtain a conviction for resisting law enforcement in this case, the

      State must have proved beyond a reasonable doubt that (1) Vance (2)

      knowingly (3) forcibly resisted (4) a law enforcement officer (5) while the officer

      was lawfully engaged in the execution of his duties. See Appellant’s App. Vol.

      2, p. 7; see also Ind. Code § 35-44.1-3-1(a)(1) (2016). Vance challenges the

      State’s evidence as to whether he forcibly resisted, claiming that he merely “did

      not put his arms out to be handcuffed once he was taken to the ground.”

      Appellant’s Br. p. 8.


[6]   A person forcibly resists a police officer when he uses strong, powerful, violent

      means to impede an officer in the lawful execution of his duties. Walker v. State,


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019   Page 3 of 5
      998 N.E.2d 724 (Ind. 2013). An overwhelming or extreme level of force is not

      required; rather, forcible resistance may be satisfied with even a modest

      exertion of strength, power, or violence. Id. In Lopez v. State, this Court held

      that it was reasonable to infer forcible resistance where Lopez was lying on his

      hands, and the officers were unable to pull his arms out from under him to

      handcuff him. 926 N.E.2d 1090 (Ind. Ct. App. 2010), trans. denied.


[7]   Here, Officer Fredenburg testified generally that when the officers attempted to

      detain Vance, he tensed up and “had to be taken to the ground by officers.” Tr.

      Vol. 2, p. 8. Officer Paturalski testified that when he arrived on the scene

      Officer Fredenburg instructed him to detain Vance. Officer Paturalski reached

      for Vance’s arm, and Vance “aggressively pulled away,” “was backing up,” and

      his “fists were clenched.” Id. at 18. Officer Paturalski tried to strike Vance in

      order to “distract him from maintaining his defensive posture.” Id. The officer

      missed, but he was able to grab Vance. Vance attempted to push the officer off

      of him, but Officer Fredenburg was able to step in to assist Officer Paturalski

      and take Vance to the ground. Officer Knepper testified that the officers had

      taken Vance to the ground but were having difficulty handcuffing him because

      he “had his arms underneath his body,” and “he simply would not give his

      arms up to be placed in handcuffs.” Id. at 36. Officer Knepper got onto

      Vance’s back and pulled his right arm from underneath his body so that he

      could be handcuffed. This evidence is sufficient to support the trial court’s

      conclusion that the State proved the element of forcible resistance beyond a

      reasonable doubt.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019   Page 4 of 5
[8]   Judgment affirmed.


      Riley, J., and Crone, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019   Page 5 of 5
