James Michael Cox v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 20 2017, 8:52 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian R. Chastain Curtis T. Hill, Jr.
Dillman, Chastain, Byrd, LLC Attorney General of Indiana
Corydon, Indiana
Ian McLean
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
James Michael Cox, March 20, 2017
Appellant-Defendant, Court of Appeals Case No.
36A01-1604-CR-896
v. Appeal from the Jackson Superior
Court
State of Indiana, The Honorable Bruce Markel, III,
Appellee-Plaintiff. Judge
Trial Court Cause No.
36D01-1505-CM-498
May, Judge.
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[1] James Michael Cox appeals his convictions of Class A misdemeanor resisting
law enforcement;1 Class A misdemeanor possession of paraphernalia; 2 and
Class B misdemeanor possession of marijuana.3 Cox presents three issues for
our consideration, which we restate as:
1. Whether Cox’s convictions were barred by Indiana’s
Religious Freedom Restoration Act (“RFRA”);
2. Whether the State presented sufficient evidence to prove Cox
committed Class A misdemeanor resisting law enforcement; and
3. Whether the State presented sufficient evidence to prove Cox
committed Class A misdemeanor possession of paraphernalia.
We affirm.
Facts and Procedural History
[2] On May 15, 2015, Officer Michael Payne initiated a traffic stop on Cox’s
vehicle based on Officer Payne’s observation of a burnt-out license plate light
on Cox’s vehicle. Officer Payne noticed the vehicle displayed a license plate
from 1969 and called dispatch to check the plate number. The plate number
returned different vehicle information than the stopped vehicle.
1
Ind. Code § 35-44.1-3-1(a)(1) (2014).
2
Ind. Code § 35-48-4-8.3(a)(1) (2014).
3
Ind. Code § 35-48-4-11(a)(1) (2014).
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[3] Officer Payne approached the driver’s side of the vehicle and spoke with the
driver, later identified as Cox. Officer Payne smelled alcohol and noted open
bottles on the floorboard of Cox’s vehicle. Officer Payne asked Cox if he had
been drinking, and Cox indicated he had not. Officer Payne attempted to read
the vehicle’s Vehicle Identification Number (“VIN”). While he was trying to
read the number, Officer Payne noticed Cox reached into the right front pocket
of Cox’s pants. Officer Payne testified the movement was consistent with
someone who was trying to conceal an item or reach for a weapon.
[4] Officer Payne asked Cox to exit the vehicle, and Cox refused. Officer Payne
opened the door and pulled Cox’s left arm to remove him from the truck.
Officer Payne pulled Cox’s left arm two or three more times, but Cox was using
his right arm to “sturdy [sic] himself on the steering wheel actively resisting
[Officer Payne] getting him out of the vehicle.” (Tr. at 11.) Cox eventually
exited the vehicle, and Officer Payne handcuffed him.
[5] Officer Payne searched Cox’s pocket and found a package of rolling papers and
a hand-rolled marijuana cigarette. When asked about the marijuana cigarette,
Cox replied, “So what that’s mother fucking religious[.]” (Id. at 18.) Cox’s
vehicle was impounded and inventoried. The inventory revealed a large glass
jar with marijuana in it, a digital scale, and a package of salve which contained
Tetrahydrocannabinol (“THC”), a chemical found in marijuana. On May 29,
2015, the State charged Cox with Class A misdemeanor resisting law
enforcement, Class B misdemeanor possession of marijuana, and Class A
misdemeanor possession of paraphernalia.
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[6] Cox represented himself throughout the proceedings.4 On September 11, 2015,
Cox filed correspondence with the court asking for dismissal of the charges
against him. In it, he argued the resisting law enforcement charge violated his
“[r]ight to travel and transport his property upon the public highways in the
ordinary course of life and business.” (App. Vol. II at 48.) He also argued the
possession of marijuana charge violated his “Right to Freedoms of Thought,
Conscience, Opinion & Expression.” (Id. at 53.) The trial court denied his
motion to dismiss. On December 8, 2015, the trial court held a bench trial and
found Cox guilty as charged.5
Discussion and Decision
I. Cox’s RFRA Arguments
Indiana Code Section 34-13-9-8, also referred to as RFRA, states:
(a) Except as provided in subsection (b), a governmental entity
may not substantially burden a person’s exercise of religion, even
if the burden results from a rule of general applicability.
4
Cox represented himself before the trial court despite the trial court’s admonishment that “[Cox] would be
well advised to hire an attorney to represent him in this matter. If he cannot afford one, he should apply for
pauper counsel.” (App. Vol. II at 56.) It is well-settled pro se litigants are “held to the same standard as
trained counsel.” Ross v. State, 877 N.E.2d 829, 833 (Ind. Ct. App. 2007), trans. denied.
5
The trial court also granted Cox’s motion to file a belated appeal. Cox filed his appeal on April 25, 2016.
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(b) A governmental entity may substantially burden a person’s
exercise of religion only if the governmental entity demonstrates
that application of the burden to the person:
(1) is in furtherance of a compelling governmental interest;
and
(2) is the least restrictive means of furthering that
compelling governmental interest.
As part of his Summary of Argument on appeal, Cox argues:
Mr. Cox contends that as a natural born citizen, he has a
constitutional right to freely hold any belief or view he chooses
and that the government cannot interfere with his views or his
ability to express those views.
Mr. Cox contends that as a natural born citizen, he has a
constitutional right to freely move upon earth, more specifically
in this case, to freely move upon a public road. The government
has no authority to remove a right except through due process
and its police powers.
Further, Mr. Cox relies upon any statutory law that grants him a
similar right as the constitution, more specifically the Religious
Freedom Restoration Act.
(Br. of Appellant at 8.) In his argument section, Cox reiterates the statements in
his Summary of Argument, makes disjointed arguments about the issues, and
cites very little case and statutory law to support his argument, and thus it is
waived. See Indiana Appellate Rule 46(A)(8)(a) (requiring each issue presented
by appellant to be “supported by cogent reasoning . . . [and] supported by
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citations to authorities [and] statutes[.]”); and see Matheney v. State, 688 N.E.2d
883, 907 (Ind. 1997) (failure to make a cogent argument supported by citation
to authority waives issue on appeal), reh’g denied, cert. denied.
[7] Waiver notwithstanding, while Cox seemingly presented some of these issues to
the trial court in a pre-trial correspondence that the trial court accepted as a
variety of motions, he did not, in that correspondence, argue these rights under
RFRA, as he does on appeal. Thus, we are unable to address the application of
RFRA to the charges against Cox on appeal. See Goodner v. State, 685 N.E.2d
1058, 1060 (Ind. 1997) (cannot raise issue for the first time on appeal); see also
Phillps v. State, 22 N.E.3d 749, 762 (Ind. Ct. App. 2014) (appellant cannot argue
one legal theory before the trial court and present a different theory on appeal),
trans. denied.
II. Sufficiency of the Evidence
[8] When reviewing sufficiency of evidence to support a conviction, we consider
only the probative evidence and reasonable inferences supporting the trial
court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the fact-
finder’s role, and not ours, to assess witness credibility and weigh the evidence
to determine whether it is sufficient to support a conviction. Id. To preserve
this structure, when we are confronted with conflicting evidence, we consider it
most favorably to the trial court’s ruling. Id. We affirm a conviction unless no
reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt. Id. It is therefore not necessary that the evidence overcome
every reasonable hypothesis of innocence; rather, the evidence is sufficient if an
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inference reasonably may be drawn from it to support the trial court’s decision.
Id. at 147.
A. Class A Misdemeanor Resisting Law Enforcement
[9] To prove Cox committed Class A misdemeanor resisting law enforcement, the
State had to prove he “forcibly resist[ed], obstruct[ed], or interfer[ed] with a law
enforcement officer . . . lawfully engaged in the execution of the officer’s
duties.” Ind. Code § 35-44.1-3-1(a)(1) (2014). Cox argues “the interaction
between him and the officer did not rise to a strong, powerful, or violent means
to impede the officer in the execution of duties.” (Br. of Appellant at 10.)
However, in so arguing, Cox misapplies Walker v. State, 998 N.E.2d 724, 727
(Ind. 2013), on which he relies for his argument. While Walker holds “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 duties, the Court also said “this should not be understood as requiring an
overwhelming or extreme level of force.” Id. Walker goes on to state even a
“modest level” of resistance might support a conviction of Class A
misdemeanor resisting law enforcement. Id.[10] Here, Officer Payne testified:
He advised me he was not gonna [sic] get out of the vehicle. I
then reached for the door handle to open the door, he had ahold
of the inside of the door however; I pulled the door away from
him. Umm, I then again asked him to step out of the vehicle, he
advised he would not step out of the vehicle. I grabbed ahold of
his left arm and pulled two or three times to get him out of the
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vehicle, but he was using his right arm to sturdy [sic] himself on
the steering wheel[,] actively resisting me getting him out of the
vehicle.
(Tr. at 11.) Cox’s argument is an invitation for us to reweigh the evidence and
judge the credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d
at 146 (appellate court cannot reweigh evidence or judge the credibility of
witnesses). We conclude the State presented sufficient evidence to prove Cox
committed Class A misdemeanor resisting law enforcement. See Graham v.
State, 903 N.E.2d 963, 966 (Ind. 2009) (“even ‘stiffening’ of one’s arms when an
officer grabs hold to position them for cuffing would suffice”).
B. Class A Misdemeanor Possession of Paraphernalia
[11] To prove Cox committed Class A misdemeanor possession of paraphernalia,
the State had to present evidence he “knowingly or intentionally” possessed “a
raw material, an instrument, a device or other object that [he] intend[ed] to use
for: (1) introducing into [his] body a controlled substance[.]” Ind. Code § 35-
48-4-8.3(a)(1) & Ind. Code § 35-48-4-8.3(b) (2014). Cox argues “the [S]tate did
not introduce sufficient evidence to show how the rolling papers would be used
or that marijuana is defined as a controlled substance.” (Br. of Appellant at 11.)
[12] “The intent to introduce a controlled substance into one’s body may be inferred
from circumstantial evidence.” Sluder v. State, 997 N.E.2d 1178, 1181 (Ind. Ct.
App. 2013). Here, the State presented evidence Cox “start[ed] to reach into his
front right pocket of his pants,” (Tr. at 9), while Officer Payne was reading the
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VIN on his vehicle. When asked what he was doing, Cox said he was not
reaching into his pocket as Officer Payne had observed. Officer Payne then
asked Cox to exit the vehicle, and Cox resisted. When Officer Payne searched
Cox, he found “a package of rolling papers. . . [and] a hand rolled cigarette and
from [his] training [and] experience as a law enforcement officer [he knew] the
content of that cigarette to be marijuana.” (Id. at 15.) Officer Payne also
testified when he confronted Cox about the hand-rolled cigarette, Cox replied,
“that’s mother fucking religious use right there buddy.” (Id. at 18.) Taken
together, the evidence is sufficient to prove Cox intended to use the rolling
papers to introduce marijuana into his body. See Atkinson v. State, 810 N.E.2d
1190, 1194 (Ind. Ct. App. 2004) (noting the State “may have proved the offense
under [the same section of the statute under which Cox was charged] in light of
Atkinson’s admission that he used the papers to smoke marijuana”).
[13] Further, the State presented evidence from Karen Bowen, a forensic chemist
employed by the Indiana State Police, to prove the substance found in the hand
rolled cigarette contained a controlled substance. Bowen testified the hand
rolled cigarette “was found to contain Tetrahydrocannabinol THC, a controlled
substance, commonly found in marijuana, a controlled substance.” (Tr. at 82.)
Cox’s arguments are invitations for us to reweigh the evidence and judge the
credibility of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146
(appellate court cannot reweigh evidence or judge the credibility of witnesses).
Conclusion
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[14] Cox’s constitutional arguments are waived for failure to make a cogent
argument. Waiver notwithstanding, he did not present the same arguments to
the trial court and, thus, we are unable to address them. We conclude the State
presented sufficient evidence Cox committed Class A misdemeanor resisting
law enforcement and Class A misdemeanor possession of paraphernalia.
Accordingly, we affirm.
[15] Affirmed.
Najam, J., and Bailey, J., concur.
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