Justin Vance v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Sep 12 2019, 8:50 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sally Skodinski Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Courtney Staton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Justin Vance, September 12, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2924
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff. Marnocha, Judge
The Honorable Julie Verheye,
Magistrate
Trial Court Cause No.
71D02-1805-CM-1714
Friedlander, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019 Page 1 of 5
[1] Justin Vance appeals his conviction of resisting law enforcement, a Class A
1
misdemeanor, arguing that the evidence is not sufficient to support his
conviction. Concluding that the State’s evidence is sufficient, we affirm.
[2] One evening in May 2018, Officer Fredenburg of the South Bend Police
Department was dispatched to a residence. As he approached the home, he
could hear screaming and yelling coming from inside, and, when he entered the
house, he observed a table turned over, glass on the floor, blood in the kitchen,
and two males wrestling on the floor. The two men, who were eventually
identified as Vance and his son, were separated by Officer Fredenburg and
other responding officers. Vance’s son had to be further subdued because, even
after being separated from Vance, he continued to try to attack Vance and
ripped Officer Fredenburg’s microphone off his vest. As the officers were
subduing Vance’s son, family members in the home began yelling at and
assaulting the officers.
[3] Once the officers had the other family members under control, they attempted
to detain and handcuff Vance. Vance pulled away from the officers and
clenched his fists. When one officer was able to grab Vance, Vance tried to
push the officer off of him. The officers took Vance to the ground, but, once on
the ground, Vance kept his arms underneath his body, and he was screaming
and swearing at the officers. Finally, one of the officers got on Vance’s back
1
Ind. Code § 35-44.1-3-1 (2016).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019 Page 2 of 5
and pulled one of his arms from underneath him so that he could be
handcuffed. Based upon this incident, the State charged Vance with resisting
law enforcement. Following a bench trial, Vance was found guilty and
sentenced to thirty days. He now appeals this conviction.
[4] When we review a challenge to the sufficiency of the evidence, we neither
reweigh the evidence nor judge the credibility of the witnesses. Sandleben v.
State, 29 N.E.3d 126 (Ind. Ct. App. 2015), trans. denied. Instead, we consider
only the evidence most favorable to the judgment and any reasonable inferences
drawn therefrom. Id. If there is substantial evidence of probative value from
which a reasonable fact-finder could have found the defendant guilty beyond a
reasonable doubt, the judgment will not be disturbed. Labarr v. State, 36 N.E.3d
501 (Ind. Ct. App. 2015).
[5] In order to obtain a conviction for resisting law enforcement in this case, the
State must have proved beyond a reasonable doubt that (1) Vance (2)
knowingly (3) forcibly resisted (4) a law enforcement officer (5) while the officer
was lawfully engaged in the execution of his duties. See Appellant’s App. Vol.
2, p. 7; see also Ind. Code § 35-44.1-3-1(a)(1) (2016). Vance challenges the
State’s evidence as to whether he forcibly resisted, claiming that he merely “did
not put his arms out to be handcuffed once he was taken to the ground.”
Appellant’s Br. p. 8.
[6] A person forcibly resists a police officer when he uses strong, powerful, violent
means to impede an officer in the lawful execution of his duties. Walker v. State,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019 Page 3 of 5
998 N.E.2d 724 (Ind. 2013). An overwhelming or extreme level of force is not
required; rather, forcible resistance may be satisfied with even a modest
exertion of strength, power, or violence. Id. In Lopez v. State, this Court held
that it was reasonable to infer forcible resistance where Lopez was lying on his
hands, and the officers were unable to pull his arms out from under him to
handcuff him. 926 N.E.2d 1090 (Ind. Ct. App. 2010), trans. denied.
[7] Here, Officer Fredenburg testified generally that when the officers attempted to
detain Vance, he tensed up and “had to be taken to the ground by officers.” Tr.
Vol. 2, p. 8. Officer Paturalski testified that when he arrived on the scene
Officer Fredenburg instructed him to detain Vance. Officer Paturalski reached
for Vance’s arm, and Vance “aggressively pulled away,” “was backing up,” and
his “fists were clenched.” Id. at 18. Officer Paturalski tried to strike Vance in
order to “distract him from maintaining his defensive posture.” Id. The officer
missed, but he was able to grab Vance. Vance attempted to push the officer off
of him, but Officer Fredenburg was able to step in to assist Officer Paturalski
and take Vance to the ground. Officer Knepper testified that the officers had
taken Vance to the ground but were having difficulty handcuffing him because
he “had his arms underneath his body,” and “he simply would not give his
arms up to be placed in handcuffs.” Id. at 36. Officer Knepper got onto
Vance’s back and pulled his right arm from underneath his body so that he
could be handcuffed. This evidence is sufficient to support the trial court’s
conclusion that the State proved the element of forcible resistance beyond a
reasonable doubt.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019 Page 4 of 5
[8] Judgment affirmed.
Riley, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2924 | September 12, 2019 Page 5 of 5