William H. Denney v. State of Indiana

FILED Oct 05 2023, 9:14 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Patrick Magrath Theodore E. Rokita Alcorn Sage Schwartz & Magrath, LLP Attorney General Madison, Indiana J.T. Whitehead Deputy Attorney General Amanda Martin-Nelson Certified Legal Intern Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

William H. Denney, October 5, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-523 v. Appeal from the Switzerland Circuit Court State of Indiana, The Honorable Appellee-Plaintiff W. Gregory Coy, Judge Trial Court Cause No. 78C01-1907-CM-352

Opinion by Judge Vaidik Judges Mathias and Pyle concur.

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Vaidik, Judge.

Case Summary [1] William H. Denney appeals his convictions for Level 6 felony intimidation,

Class A misdemeanor resisting law enforcement, Class B misdemeanor

disorderly conduct, and Class B misdemeanor public intoxication, arguing the

State failed to present sufficient evidence to support the convictions. We affirm

his convictions for intimidation, disorderly conduct, and public intoxication but

reverse the conviction for resisting law enforcement. The State charged Denney

with forcible resistance, which our Supreme Court has held requires the use of

strong, powerful, or violent means to evade law enforcement. Here, the State

showed that Denney “pulled away” from a law enforcement officer before the

officer could grab Denney’s arm. This does not rise to the level of forcible

resistance. Therefore, we affirm in part and reverse in part.

Facts and Procedural History [2] The evidence most favorable to Denney’s convictions is as follows. On July 27,

2019, security guards and Indiana Gaming Commission (IGC) agents at

Belterra Casino Resort received an alert that Denney was being disruptive and

threatening others in the lobby bar. When security supervisor Paul Hammond

and two other guards arrived at the bar, they heard Denney arguing with

another patron, causing a disturbance. Hammond noticed Denney was showing

signs of intoxication, so he tried to persuade him to go to a room in the casino

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hotel to sleep it off, but Denney would not cooperate. IGC Agents Brian

Pennock and Steve Faulkner also responded to the bar, but Belterra’s policy

was for security guards to try to resolve an incident before calling in IGC, so the

agents initially stood back and observed Denney arguing with Hammond. As

the situation escalated, food and beverage vendors asked security to remove

Denney from the bar. Denney walked out of the bar yelling profanities, and the

security guards and agents followed him out to the casino pavilion. [3] Denney was upset and making noise in the pavilion, so the security guards

again attempted to get him to go to a hotel room. He said he would leave the

casino and walked away toward the parking garage, still yelling expletives and

causing a scene. Concerned Denney would drive in his intoxicated state, the

security guards and IGC agents followed him to the garage, maintaining a

distance because he was being belligerent and threatening them. Security found

Denney sitting down, hiding between two cars. As Hammond kept trying to

persuade Denney to go to a room, Denney yelled that he was “going to f*ck

[Hammond] up.” Tr. p. 8. Seeing this as a threat to Hammond, Agent Pennock

intervened and offered to escort Denney to a room, but Denney refused and

yelled, “[Y]ou don’t know who you are f*cking with.” Id. Agent Pennock

warned Denney to calm down, but Denney stood and said “f*ck you I’m not

going to that h*ll hole, I’m leaving.” Id. at 9. Denney started to move away,

and Agent Pennock informed him he was under arrest for public intoxication.

As he reached for Denney’s arms, Denney lifted them up and “pulled away,” so

Agent Pennock “wasn’t able to get ahold of [him] at that point.” Id. at 25-26.

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Agent Faulkner stepped in to assist Agent Pennock, and they managed to get

ahold of Denney. While in the agents’ grasps, Denney was “tightening up,” but

he stopped once they got him on the ground. Id. at 25. The agents handcuffed

him and walked him to the IGC office. [4] Denney was uncooperative in the office and told Agents Pennock and Faulkner

they were “f*cking with the wrong person.” Id. at 11. He gave them “some

opportunities to remove his cuffs and to let him go,” and after the agents

advised him they would not do so, Denney threatened them and their families.

Id. He said he knew members of “chapters,” meaning motorcycle gangs, and

that “[the agents’] wives, mothers and children would be done.” Id. Agent

Pennock called the Switzerland County Sheriff’s Department to pick up

Denney from Belterra, and deputies transported Denney to the county jail. [5] The State charged Denney with Level 6 felony intimidation, Class A

misdemeanor resisting law enforcement, Class B misdemeanor disorderly

conduct, and Class B misdemeanor public intoxication. At the bench trial,

Denney testified in his own defense. He claimed he was not being derogatory in

the casino bar and didn’t say anything to the other patrons. His theory was that

someone had “slipped something into [his] drink” as part of a plan to rob him,

but “their plan got foiled. And that’s why they . . . said that [Denney] was being

belligerent[.]” Tr. p. 60. In support of this theory, Denney testified that he did

not take any drugs on the night of the incident and had never acted the way he

did that night while intoxicated from alcohol. He said the guards at the jail told

him they’d never seen that kind of behavior from alcohol and “they thought

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there was a little bit more than alcohol.” Id. at 58. Denney also claimed he went

to the parking garage because security asked him to leave the casino, and he

told them he would wait in the garage for his mom and sister to pick him up

rather than driving himself. As to the events in the IGC office, Denney alleged

the agents were “mocking [him], making fun of [him] because [he] had long

hair and [he] looked like a gang member.” Id. at 61. He admitted that he

“played along with that,” but that he doesn’t actually know anybody in a gang

or have any gang affiliation. Id. [6] The trial court found Denney guilty on all counts and sentenced him to

concurrent terms of eighteen months for intimidation, one year for resisting law

enforcement, six months for disorderly conduct, and six months for public

intoxication. The court suspended all but 120 days, which Denney was ordered

to serve on home detention. [7] Denney now appeals.

Discussion and Decision [8] Denney contends the evidence is insufficient to sustain his convictions. When

reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence

nor judge witness credibility. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015).

We consider only the evidence supporting the judgment and any reasonable

inferences that can be drawn from it. Id. We will affirm a conviction if there is

substantial evidence of probative value to support each element of the offense

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such that a reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt. Id.

I. Intimidation [9] To convict Denney of Level 6 felony intimidation as charged here, the State

had to prove he communicated a threat to law-enforcement officers, namely

IGC Agents Pennock and Faulkner, with the intent that they engage in conduct

against their will while “fulfilling their law enforcement duties and

responsibilities of arrest.” Appellant’s App. Vol. II p. 31.1 Denney claims there

is no evidence that he threatened the agents with the requisite intent. But Agent

Pennock testified that Denney asked them multiple times “to remove his cuffs

and to let him go . . . [a]nd when [they] didn’t do that, he then made a

comment that he knows three (3) chapters and that [the agents’] wives, mothers

and children would be done.” Tr. p. 11. This testimony supports a reasonable

inference that Denney threatened the agents with the intent that they release

him from custody after they initially refused to do so. The evidence is sufficient

to sustain Denney’s intimidation conviction.

1 Intimidation is governed by Indiana Code section 35-45-2-1. An amended version of this statute went into effect on July 1, 2019. See Pub. L. No. 66-2019 § 17. This version was in effect when Denney committed the offenses on July 27, 2019, but the State mistakenly charged him under the previous version. See Appellant’s App. Vol. II p. 31. Specifically, the State charged Denney under Section 35-45-2-1(b)(1)(B)(i) of the previous version, which made intimidation a Level 6 felony if “the person to whom the threat is communicated . . . is a law enforcement officer” and “the threat is communicated to the person because of the occupation . . . or based on an act taken by the person within the scope of the occupation[.]” The new version doesn’t include a subsection (b)(1)(B)(i), but it still makes intimidation a Level 6 felony if “the threat is communicated because of the occupation . . . of a person or the threat relates to or is made in connection with the occupation[.]” Denney does not raise any issue with this charging error on appeal.

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II. Resisting Law Enforcement [10] To convict Denney of resisting law enforcement as charged, the State had to

prove he knowingly or intentionally forcibly resisted, obstructed, or interfered

with Agents Pennock and Faulkner while they were lawfully executing their

duties. I.C. § 35-44.1-3-1(a)(1); Appellant’s App. Vol. II p. 12. Denney contends

his acts of “turn[ing] to leave,” “pull[ing] away” when Agent Pennock “tried to

grab Denney’s arm and missed,” and “tighten[ing] up” when the agents had

him on the ground did not constitute forcible resistance. Appellant’s Br. p. 11.

We agree. A person 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.’” Walker v. State, 998 N.E.2d 724, 726-27 (Ind. 2013) (quoting

Spangler v. State, 607 N.E.2d 720, 723 (Ind. 1993)). Even a modest exertion of

strength, power, or violence may satisfy this element, id. at 727, but our

Supreme Court has held that merely walking away from law enforcement,

Spangler, 607 N.E.2d at 724, refusing to present arms for handcuffing, Graham v.

State, 903 N.E.2d 963, 966 (Ind. 2009), or turning and pulling away from an

officer’s grasp, K.W. v. State, 984 N.E.2d 610, 611 (Ind. 2013), do not rise to the

level of forcible resistance. See also, e.g., Runnells v. State, 186 N.E.3d 1181, 1185

(Ind. Ct. App. 2022) (“pulling away from [the officer’s] grasp”); Brooks v. State,

113 N.E.3d 782, 785 (Ind. Ct. App. 2018) (“tensing up and pulling away” as

officers tried to handcuff her). [11] The State likens this case to Johnson v. State, 833 N.E.2d 516 (Ind. Ct. App.

2005). There, we found Johnson forcibly resisted by pushing away with his

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shoulders as officers were searching him and stiffening up as they grabbed him

to put him into the transport vehicle. But unlike Johnson, Denney did not push

away from the agents, and he “pulled away” from Agent Pennock without

making any contact with him.2 Because the State failed to prove Denney acted

forcibly, the evidence is insufficient to sustain his conviction for resisting law

enforcement.

III. Disorderly Conduct [12] As to the charge of disorderly conduct, the State had to prove Denney

recklessly, knowingly, or intentionally made unreasonable noise and continued

to do so after being asked to stop. I.C. § 35-45-1-3(a)(2); Appellant’s App. Vol.

II p. 13. After receiving notice that Denney was being disruptive in the lobby

bar, Hammond tried to persuade him to leave the bar and go to a hotel room,

but Denney argued and continued “causing a disturbance.” Tr. p. 33. As

Denney was leaving the bar, “he yelled f*ck you” to “the folks that were still in

the bar[.]” Id. at 5. Even after security repeatedly requested that Denney go to a

room, Denney “was yelling some profanities” in the pavilion area and “became

increasingly more belligerent” in the parking garage. Id. at 7, 36. When Agent

Pennock approached Denney in the garage to persuade him to go to a room,

Denney “yelled do you know who I am, you don’t know who you are f*cking

2 The State’s reliance on Johnson centers around the fact that Johnson was yelling and cursing at officers as they arrested and searched him. Appellee’s Br. p. 13. But the Johnson court’s finding of forcible resistance was based on Johnson’s physical means of resisting, not his accompanying words. See Johnson, 833 N.E.2d at 518- 19. Although Denney threatened and yelled at officers, these outbursts do not make his physical actions forcible.

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with.” Id. at 8. Agent Pennock then “gave him a warning to calm down,” but

Denney “was yelling at [Pennock]” and “said, f*ck you I’m not going to that

h*ll hole,” Tr. pp. 8-9, 23. The evidence shows Denney continuously made

unreasonable noise throughout the night and continued to do so even after

Agent Pennock warned him to calm down. This is sufficient to support his

conviction for disorderly conduct.

IV. Public Intoxication [13] To convict Denney of public intoxication as charged here, the State had to

prove that he was in Belterra Casino Resort in a state of intoxication caused by

his use of alcohol or a controlled substance and that he endangered his life or

the life of another, breached the peace or was in imminent danger of breaching

the peace, or harassed, annoyed, or alarmed another person. I.C. § 7.1-5-1-3(a);

Appellant’s App. Vol. II p. 14. The trial court “f[ound] beyond a reasonable

doubt that [Denney] was intoxicated and breached the peace or was [in]

imminent danger of breaching the peace.” Tr. p. 70. Denney contends the State

failed to prove he breached the peace or was in imminent danger of doing so.

He cites Milam v. State, 14 N.E.3d 879 (Ind. Ct. App. 2014), where we found

the evidence that Milam was in a pulled-over car and argued with another

passenger and the arresting officer insufficient to meet the requirements of the

public-intoxication statute. The State likens this case to Ruiz v. State, 88 N.E.3d

219 (Ind. Ct. App. 2017). There, we held the trial court reasonably inferred

Ruiz was in imminent danger of breaching the peace when he was yelling at

residents of his apartment complex, officers had to respond to the scene three

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separate times, and he was uncooperative with the officers. This case is more

like Ruiz; Denney caused a disturbance while arguing with another patron in

the casino bar, IGC agents had to intervene after Denney refused to cooperate

with the security guards, and Denney was continuously hostile and belligerent

toward the security guards and agents. The trial court reasonably inferred

Denney breached or was in imminent danger of breaching the peace.3 [14] Affirmed in part and reversed in part.

Mathias, J., and Pyle, J., concur.

3 Denney also contends his convictions for both disorderly conduct and public intoxication constitute double jeopardy under Wadle v. State, 151 N.E.3d 227 (Ind. 2020). He claims the convictions “fall afoul of the ‘single transaction’ test” because they “rest on the same conduct.” Appellant’s Br. p. 13. But Denney comes to this conclusion without actually applying the steps of the Wadle test. See Garth v. State, 183 N.E.3d 905, 920 (Ind. Ct. App. 2022) (citations omitted) (“The first step is to determine whether the statutes . . . allow for multiple punishments . . . . If the statutes are unclear, we apply our included-offense statutes. If either offense is included in the other, . . . we then consider whether the defendant’s actions . . . ‘constitute a single transaction.’”), trans. denied. Because Denney fails to develop an argument under this test, he has waived any double-jeopardy claim. See Ind. Appellate Rule 46(A)(8)(a) (“The argument must contain the contentions of the appellant on the issues presented, supported by cogent reasoning.”).

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