Mario D. Bell v. State of Indiana (mem. dec.) ( 2016 )


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  •       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
    Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016        Page 1 of 10
    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
    Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 3 of 10
    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
    Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 4 of 10
    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).
    Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 5 of 10
    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
    gun three days before his arrest and only retrieved it approximately one hour
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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.
    Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 8 of 10
    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
    Court of Appeals of Indiana | Memorandum Decision 02A05-1510-CR-1622 | June 7, 2016   Page 9 of 10
    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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