Mario D. Bell v. State of Indiana (mem. dec.)

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

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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.

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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

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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

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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).

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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

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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

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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.

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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

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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.

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