Michael v. Richards v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Mar 15 2018, 9:29 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. Burns Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Caryn N. Szyper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Michael V. Richards, March 15, 2018 Appellant-Defendant, Court of Appeals Case No. 49A02-1709-CR-2171 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Ronnie Huerta, Appellee-Plaintiff. Commissioner Trial Court Cause No. 49G19-1702-CM-6617

Najam, Judge. Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2171 | March 15, 2018 Page 1 of 9

Statement of the Case [1] Michael V. Richards appeals his convictions, following a bench trial, for

resisting law enforcement, as a Class A misdemeanor, and public intoxication,

as a Class B misdemeanor. Richards raises one issue on appeal, namely,

whether the State presented sufficient evidence to support his convictions. [2] We affirm.

Facts and Procedural History [3] At approximately 5:00 p.m. on February 17, 2017, Officer Sherry Denny with

the Indianapolis Metropolitan Police Department (“IMPD”) responded to a

call at the intersection of Southport Road and U.S. 31 in Indianapolis.

Dispatch had received multiple calls that a man was walking in and out of

traffic at that intersection. Upon her arrival, Officer Denny saw Richards

standing in a nearby office parking lot with Jacqueline Meurer. Meurer had

begun a conversation with Richards because she was concerned for his safety

since he was “hovering around” the rush-hour traffic. Tr. Vol. II at 44. Meurer

was also concerned about Richards because “[h]e was definitely not acting

right.” Id. at 47. [4] Officer Denny observed that Richards was “stumbling around” in the parking

lot. Id. at 7. She also observed that his hands were in his pockets. For her

safety, she requested that he remove his hands, but he did not comply. Officer

Denny “continued to ask him to take his hands out of his pockets.” Id. at 8.

Richards attempted to say something in response, but his speech was “muffled

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and slurred,” and Officer Denny could not understand what he said. Id. Based

on her training, his speech, and because “[h]e was unsteady on his feet,” id. at

9, Officer Denny believed that Richards “was under the influence of

something.” Id. at 8. [5] Officer Denny continued to ask Richards to remove his hands from his pockets.

Richards still did not comply, and Officer Denny attempted to handcuff him.

She placed the handcuffs on one of his hands, but she was unable to handcuff

the second hand because “he kind of hunkered down and leaned away from me

to try to get away.” Id. at 20. Officer Denny and Richards then “did some

spins in the parking lot” as Officer Denny attempted to get Richards’ other

hand in the handcuffs. Id. Richards was fighting her and “actively trying to get

away.” Id. at 32. Eventually, Officer Denny and Richards fell to the ground. [6] IMPD Officer Steven Hayth arrived at the scene shortly after Officer Denny.

He observed Richards “resisting [Officer Denny] trying to put him in the

handcuffs.” Id. at 34. He also observed Officer Denny and Richards fall and

continue to struggle on the ground. Richards continued to struggle, and “he

was fighting” to keep Officer Denny from getting his other hand. Id. at 21.

Richards “was trying to get out from underneath [Officer Denny] and [Officer

Denny] was trying to put his hands behind his back.” Id. at 35. At that point,

Officer Hayth decided to assist Officer Denny but Richards continued to “try[]

to forcefully get his hands out from our grasp.” Id. With Officer Hayth’s

assistance, Officer Denny was able to place handcuffs on both of Richards’

hands, but he was “still kicking and writhing around trying to get away[.]” Id.

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at 22. The officers “had to put shackles on him to keep him from kicking”

them. Id. [7] While Officers Denny and Hayth waited for other officers to arrive, they asked

Richards to stay seated. But Richards kept trying to stand up and go towards

the officers in a “threatening” manner. Id. at 42. Officer Hayth noticed that

Richards had “extremely glassy eyes, bloodshot eyes. His manual dexterity was

poor. He was . . . kind of waving back and forth” while he was on his feet. Id.

at 38. Officer Hayth also noticed that Richards “was very belligerent,” and

testified that Richards told one of the officers to perform a sexual act on another

officer. Id. Based on his observations of Richards, he believed that Richards

was intoxicated. [8] The State charged Richards with two counts of resisting law enforcement, as

Class A misdemeanors (Counts I and II), and one count of public intoxication,

as a Class B misdemeanor (Count III). On August 31, the trial court held a

bench trial. The court found Richards guilty of all three charges, but it later

vacated his conviction for Count I. The court sentenced Richards to an

aggregate term of 365 days, with 305 days suspended. This appeal ensued.

Discussion and Decision [9] Richards contends that the State failed to present sufficient evidence to support

his convictions. Our standard of review on a claim of insufficient evidence is

well settled:

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For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the [judgment]. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).

Resisting Law Enforcement [10] Richards first contends that the State failed to present sufficient evidence to

support his conviction for resisting law enforcement, as a Class A

misdemeanor. To convict Richards of resisting law enforcement, as a Class A

misdemeanor, the State was required to prove that Richards: knowingly or

intentionally; forcibly; resisted, obstructed, or interfered with a law enforcement

officer; while the law enforcement officer was lawfully engaged in the execution

of the officer’s duties. See Ind. Code § 35-44.1-3-1(a)(1) (2017). Here, the

parties dispute only whether the evidence shows that Richards forcibly resisted

the law enforcement officers. [11] As the Indiana Supreme Court has explained, “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.” Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013). While the statute

does not demand complete passivity, the force involved need not rise to the

level of mayhem. Id. Even a modest level of resistance, including stiffening

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one’s arms when an officer grabs them to position them for cuffing, might

support the offense. Id. [12] Richards specifically asserts that there was insufficient evidence to demonstrate

that he forcibly resisted because he did not use “[s]trong, violent, or powerful

means” to resist Officer Denny. Appellant’s Br. at 13. To support his

contention, Richards relies on Macy v. State, 9 N.E.3d 249 (Ind. Ct. App. 2014).

In Macy, police officers arrived at the defendant’s home to investigate a

complaint. The defendant began “making a scene,” so one of the police officers

arrested her. Id. at 250. The officer placed the defendant in his vehicle, but she

opened the door and got out of the car. The officer requested that she get back

in the car. At that point, she planted her feet on the ground and the officer had

to pick up her feet and put them in the car. The trial court found her guilty. [13] On appeal, this court held that the defendant’s acts of opening the door of the

police car did not constitute forcible resistance because the act did not involve

any interaction with the officer and it was not directed towards the officer and

did not present a threat to him. Id. at 253. This court also held that her act of

planting her feet outside the officer’s car, such that the officer had to pick her

feet up and place them in the car, was an act of passive resistance that is not

punishable under the statute. Id. In the present case, Richards contends that,

like in Macy, his actions “were clearly passive.” Appellant’s Br. at 14. [14] We reject Richards’ argument. In Macy, the defendant simply opened a car

door and planted her feet on the ground. Here, Richards’ actions were not so

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“passive.” When Officer Denny attempted to place him in handcuffs, he

“hunkered down and leaned away” from Officer Denny, Tr. Vol. II at 20, and

he was “actively trying to get away” from her. Id. at 32. As he attempted to get

away from her, they “did some spins in the parking lot” as Officer Denny

attempted to get his other hand in the handcuffs. Id. at 20. Eventually, Officer

Denny and Richards fell to the ground, but even there Richards was “fighting”

for his other hand, id. at 21, and “trying to get out from underneath” Officer

Denny. Id. at 35. Even after Officer Hayth decided to assist Officer Denny,

Richards continued to “try[] to forcefully get his hands” from the officers. Id.

Further, after the officers placed Richards in handcuffs, he was “kicking and

writhing around” to try to get away, and the officers had to place shackles on

him to keep from getting kicked. Id. at 22. As such, the evidence readily shows

that Richards forcibly resisted the law enforcement officers. Accordingly, we

affirm his conviction for resisting law enforcement, as a Class A misdemeanor.

Public Intoxication [15] Richards also contends that the State failed to present sufficient evidence to

support his conviction for public intoxication, as a Class B misdemeanor. To

convict Richards of public intoxication, as a Class B misdemeanor, the State

was required to prove that he was in a public place, in a state of intoxication

caused by his use of alcohol or a controlled substance, and that he had

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endangered his life. See I.C. § 7.1-5-1-3(a)(1). Richards maintains that the

evidence is insufficient to prove that he was intoxicated. 1 [16] Richards contends that the State did not present sufficient evidence because

“[n]owhere in the record is there any mention of the consumption of large

amounts of alcohol, odor of alcoholic beverage, failure of field sobriety tests,

bloodshot eyes or even slurred speech.” Appellant’s Br. at 12. But we agree

with the State that a reasonable fact-finder could have determined from the

evidence that Richards was intoxicated. Officer Denny testified that Richards

was “stumbling around” in the parking lot. Tr. Vol. II at 7. She further

testified that his speech was “muffled and slurred.” Id. at 8. And she testified

that, based on her training and her three years of experience as a police officer,

she believed that Richards was intoxicated. [17] Officer Hayth also testified that Richards had “extremely glassy eyes, bloodshot

eyes. His manual dexterity was poor. He was . . . kind of waving back and

forth” while he was on his feet and he “was very belligerent.” Id. at 38. Based

on Officer Hayth’s sixteen years of experience as an officer and his observations

of Richards, Officer Hayth believed that Richards was intoxicated. Further, the

State presented the testimony of Meurer, who had witnessed the incident.

Meurer testified that Richards’s “composure was that he wasn’t walking

straight. He was like wobbling.” Id. at 45. Meurer also believed that Richards

1 In his brief, Richards states that “[t]he issues for this appeal are whether there was sufficient evidence in the record to prove that Mr. Richards endangered his life.” Appellant’s Br. at 10. However, he does not make any argument on that point.

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was intoxicated because “[h]e was definitely not acting right.” Id. at 47.

Therefore, the evidence most favorable to the trial court’s judgment shows that

Richards was intoxicated. See Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct.

App. 2013) (holding that there was sufficient evidence to find that the defendant

was intoxicated based on the officer’s testimony that the officer smelled alcohol

on the defendant’s breath and that the defendant had bloodshot eyes, slurred

speech, and an unsteady gait). As such, we affirm his conviction for public

intoxication, as a Class B misdemeanor. [18] In sum, the evidence most favorable to the judgment supports Richards’

convictions for resisting law enforcement, as a Class A misdemeanor, and

public intoxication, as a Class B misdemeanor. Richards’ contentions on

appeal are simply requests that we reweigh the evidence, which we cannot do.

We affirm Richards’ convictions. [19] Affirmed.

Mathias, J., and Barnes, J., concur.

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