Calvin McGregory v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Mar 09 2017, 9:20 am

the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana

Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Calvin McGregory, March 9, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1609-CR-2104 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Allan W. Reid, Appellee-Plaintiff. Commissioner Trial Court Cause No. 49G16-1604-CM-13705

Brown, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017 Page 1 of 10 [1] Calvin McGregory appeals his conviction for resisting law enforcement as a

class A misdemeanor. McGregory raises one issue which we revise and restate

as whether the evidence is sufficient to sustain his conviction. We affirm.

Facts and Procedural History [2] On April 11, 2016, Indianapolis Metropolitan Police Officer James Perry was

dispatched to investigate a disturbance between a male and a female. He pulled

up to the scene in his marked police car and observed a woman who was

bloody, muddy, visibly upset, shaken, crying, angry, and appeared frightened in

the street walking toward him. She directed him to McGregory in the residence

where Officer Perry observed broken glass all over the front porch. He knocked

on the door of the residence, announced that he was a police officer, told

McGregory that he wanted to speak with him, and asked if McGregory would

step outside to speak with him. McGregory exited the residence and was

agitated, confrontational, “very questioning of what [the police] were doing and

why [the police] were talking to him,” and not responsive initially to any

questions. Transcript at 9. Officer Perry attempted to speak with McGregory,

but did not receive responses and was “met with questions.” Id. at 12. Officer

Perry feared for his safety given McGregory’s increasingly aggravated state and

the information he had been given and decided to handcuff him. 1

1 Officer Perry testified that the information he received was that a male was accused of throwing a female off a porch. McGregory’s counsel objected on the basis of hearsay, and the prosecutor argued that the evidence was admissible as course of the investigation evidence. The court clarified with the prosecutor that the

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017 Page 2 of 10 [3] Officer Perry asked McGregory to turn around, and McGregory did so. When

Officer Perry attempted to handcuff him, McGregory “tensed up,” and “pulled

his hands away” and was “physically pulling them out of” Officer Perry’s hand.

Id. at 10. Officer Perry again attempted to handcuff him, and McGregory did

the same thing and remained “very tense, very tight, balled his fists,” and

“pulled his arms away from” Officer Perry. Id. At that time, Officer Perry

placed his right arm under McGregory’s right arm, his left arm over

McGregory’s left shoulder, and leveraged his weight against McGregory to take

him to the ground. [4] While on the ground, Officer Shaw came to aid Officer Perry with placing

McGregory in handcuffs. Officer Shaw pulled McGregory’s right arm from

under his body, and Officer Perry was able to pull his left arm out. Officer

Shaw put one handcuff on McGregory’s right arm, and Officer Perry was able

to handcuff his left arm. [5] On April 12, 2016, the State charged McGregory with resisting law

enforcement as a class A misdemeanor and battery as a class B misdemeanor.

On August 19, 2016, the court granted the State’s motion to dismiss the charge

of battery. That same day, the court held a bench trial. During cross-

examination, when asked whether he explained to McGregory why he was

being detained, Officer Perry stated: “I didn’t have an opportunity to.” Id. at

testimony would not be offered for the truth of the matter asserted, allowed it for course of investigation but not as substantive evidence, and overruled the objection.

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14. McGregory testified that his girlfriend broke the window with a chair. He

also testified:

As I stepped outside of my door to my porch, the officer, he asked me to turn around. I turned around, but all the while I’m asking him to turn around, I’m asking him, okay, I’m still trying to figure out why he’s here. So as I’m turning around, he instantly reached for my right hand and right then and there I simply turned and I asked him. I’m like, hey, am I under arrest or am I being detained? I’m asking him these questions. I’m not – I’m not, you know, trying to pull away from him. I’m just pretty much trying to ask something.

Id. at 26. He testified that Officer Perry did not ask him any questions and did

not explain to him what was happening. He also testified that Officer Perry

told him to stop resisting when he took him down to the ground and that he

was not resisting. [6] After the presentation of evidence, the court stated: “[I]t basically goes between

what Officer Shaw said --- or Perry and what you said. And the Court tends to

believe that when he asked you to turn around, I mean, you indicated that you

were agitated, that you weren’t complying with what they were saying. And so

the Court does believe that you knowingly, forcibly resist or obstruct or at least

in the very least interfere with what the officer said.” Id. at 38. The court found

McGregory guilty of resisting law enforcement as a class A misdemeanor and

sentenced him to 180 days with 176 days suspended.

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Discussion [7] The issue is whether the evidence is sufficient to sustain McGregory’s

conviction. When reviewing the sufficiency of the evidence to support a

conviction, we must consider only the probative evidence and reasonable

inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007). We do not assess witness credibility or reweigh the evidence. Id. We

consider conflicting evidence most favorably to the trial court’s ruling. Id. We

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

of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State,

726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence

overcome every reasonable hypothesis of innocence. Id. at 147. The evidence

is sufficient if an inference may reasonably be drawn from it to support the

verdict. Id. [8] The offense of resisting law enforcement as a class A misdemeanor is governed

by Ind. Code § 35-44.1-3-1, which at the relevant time provided that “[a] person

who knowingly or intentionally . . . 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 the officer’s duties . . . commits resisting

law enforcement, a Class A misdemeanor . . . .” 2 The charging information

alleged that McGregory “did knowingly forcibly resist, obstruct or interfere

2 Subsequently amended by Pub. L. No. 198-2016, § 673 (eff. July 1, 2016).

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with JAMES AARON PERRY, a law enforcement officer with the

Indianapolis Metro Police Dept, while said officer was lawfully engaged in his

duties as a law enforcement officer.” Appellant’s Appendix II at 18. [9] McGregory argues that the State did not prove forcible resistance. He also

asserts that he did not threaten Officer Perry, his reaction of tensing up and

pulling his hands away was not threatening or violent, and Officer Perry offered

no explanation of what he was trying to do. The State argues that the evidence

is sufficient where he resisted being handcuffed by Officer Perry, physical pulled

his hands away and out of the hands of Officer Perry, tensed up, and balled his

fists. [10] The Indiana Supreme Court has observed that “[s]uch a seemingly simple

statute . . . has proven to be complex and nuanced in its application.” Walker v.

State, 998 N.E.2d 724, 726 (Ind. 2013). In Spangler v. State, 607 N.E.2d 720,

722-723 (Ind. 1993), the Indiana Supreme Court 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. The Court also held that the word

meant “something more than mere action.” Spangler, 607 N.E.2d 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.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017 Page 6 of 10 [11] “But even so, ‘the statute does not demand complete passivity.’” Walker, 998

N.E.2d at 727 (quoting K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013)). In

Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009), the Court clarified that “[t]he

force involved need not rise to the level of mayhem.” “In fact, even a very

‘modest level of resistance’ might support the offense.” Walker, 998 N.E.2d at

727 (quoting Graham, 903 N.E.2d at 966) (“even ‘stiffening’ of one’s arms when

an officer grabs hold to position them for cuffing would suffice”)). The Indiana

Supreme Court held:

So in summary, not every passive—or even active—response to a police officer constitutes the offense of resisting law enforcement, even when that response compels the officer to use force. Instead, a person “forcibly” resists, obstructs, or interferes with a police officer when he or she uses strong, powerful, violent means to impede an officer in the lawful execution of his or her duties. 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. Moreover, the statute does not require commission of a battery on the officer or actual physical contact—whether initiated by the officer or the defendant. It also contemplates punishment for the active threat of such strength, power, or violence when that threat impedes the officer’s ability to lawfully execute his or her duties.

Id. [12] In Berberena v. State, which is cited by McGregory, a police officer “gave several

loud verbal commands” for Edwin Berberena to stop. 914 N.E.2d 780, 780-781

(Ind. Ct. App. 2009), trans. denied. The police officer ordered Berberena to

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place his hands behind his back, but Berberena did not comply. Id. at 781. The

officer then “had to forcefully place [Berberena] against the wall of the building.

[Berberena’s] chest was facing the building, and [the officer] had to struggle

with him to grab his hands and place them in handcuffs.” Id. The trial court

found Berberena guilty of resisting law enforcement. Id. On appeal, the court

held that the officer’s testimony “that he struggled to place the handcuffs on

Berberena’s wrists [was] ambiguous.” Id. at 782. The court also observed that

the officer “did not testify, and there [was] no evidence, that Berberena stiffened

his arms or otherwise ‘made threatening or violent actions’ to contribute to the

struggle.” Id. (quoting Ajabu v. State, 704 N.E.2d 494, 496 (Ind. Ct. App.

1998)). Lastly, the court observed that the officer “could not remember what

Berberena was doing with his hands, and the struggle did not last very long.”

Id. The court concluded that the evidence was insufficient to support

Berberena’s conviction. Id. at 783. [13] McGregory also cites Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009), trans.

denied. In that case, Curtis Colvin kept his hands in his pockets during a

struggle with officers and did not comply with officers’ commands, and the

officers had to use force to execute the arrest. 916 N.E.2d at 309. The State did

not present any evidence that Colvin used force or made threatening or violent

actions to contribute to the struggle with the officers. Id. The court held that

the evidence did not support a reasonable inference that Colvin did more than

passively resist the officers. Id.

Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017 Page 8 of 10 [14] Here, unlike the defendants’ actions in Berberena and Colvin, we cannot say that

the State did not present any evidence that McGregory used force. The record

reveals that McGregory was agitated, confrontational, very questioning of

Officer Perry, and not responsive to his questions. When Officer Perry

attempted to handcuff him, McGregory “tensed up,” and “pulled his hands

away” from Officer Perry “physically pulling them out of” Officer Perry’s hand.

Transcript at 10. Officer Perry again attempted to handcuff him, and

McGregory did the same thing and remained “very tense, very tight, balled his

fists,” and “pulled his arms away from” Officer Perry. Id. While on the

ground, Officer Shaw came to aid Officer Perry. Officer Shaw pulled

McGregory’s right arm from under his body, Officer Perry was able to pull his

left arm out, and they were then able to handcuff McGregory. [15] Based upon the record, we conclude that there exists evidence of probative

value from which a reasonable trier of fact could find that McGregory exercised

at least a modest exertion of strength, power, or violence that impeded Officer

Perry in the lawful execution of his duties and that he was guilty beyond a

reasonable doubt of resisting law enforcement as a class A misdemeanor. See

Lopez v. State, 926 N.E.2d 1090, 1093-1094 (Ind. Ct. App. 2010) (holding that

the evidence was sufficient to prove that the defendant acted with the requisite

force in resisting the officers in the execution of their duties where the defendant

refused to stand and “started to pull away” when the officers tried to physically

pull him up from the couch and where the officers were unable to pull his arms

out from under the defendant), trans. denied; Johnson v. State, 833 N.E.2d 516,

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518-519 (Ind. Ct. App. 2005) (holding that the defendant forcibly resisted police

officers by turning away and pushing away with his shoulders as they attempted

to search him, refusing to enter the transport vehicle, and stiffening up, thus

requiring the officers to exert force to place him inside the transport vehicle).

Conclusion [16] For the foregoing reasons, we affirm McGregory’s conviction. [17] Affirmed.

Vaidik, C.J., and Bradford, J., concur.

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