French Tibbs v. State of Indiana ( 2013 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Jan 31 2013, 9:08 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BARBARA J. SIMMONS GREGORY F. ZOELLER
Oldenburg, Indiana Attorney General of Indiana
KARL M. SCHARNBERG
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
FRENCH TIBBS, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1205-CR-438
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Reuben B. Hill, Judge
Cause No. 49F18-1008-FD-60728
January 31, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
French Tibbs appeals his convictions for resisting law enforcement, as a Class A
misdemeanor, and possession of marijuana, as a Class A misdemeanor. Tibbs raises the
following two issues for our review:
1. Whether the State presented sufficient evidence to support his
conviction for resisting law enforcement; and
2. Whether the State presented sufficient evidence to support his
conviction for possession of marijuana.
We affirm.
FACTS AND PROCEDURAL HISTORY
On August 4, 2010, Detective Leo George of the Indianapolis Metropolitan Police
Department (“IMPD”) was patrolling a high-crime area in an undercover vehicle when he
drove past a boarded-up home on Burton Avenue. Detective George observed a car
parked in front of the house with Tibbs leaning into the car through an open window. As
Detective George drove past, he observed Tibbs enter the vehicle and, as Detective
George continued down the street, he observed Tibbs exit the vehicle. Detective George
then parked his car down the street and watched the occupants of the other vehicle smoke
a marijuana cigarette, passing it back and forth. Detective George called for a marked
unit to initiate a traffic stop.
IMPD Officer Matthew Lynch responded to Detective George’s request. As
Officer Lynch approached the suspect vehicle, he observed Tibbs walk across the middle
of the street toward the vehicle. Officer Lynch ordered Tibbs to stop, but Tibbs
continued walking. After two or three additional orders, Tibbs finally stopped walking.
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Tibbs’ hands were in his pockets, and Officer Lynch ordered Tibbs to remove his hands
three or four times before Tibbs complied.
Officer Lynch then attempted to place Tibbs in handcuffs for officer safety, but
when he grabbed Tibbs’ hands Tibbs “jerked away” from him. Transcript at 62. Officer
Lynch was able to regain his hold of Tibbs’ hands and handcuff him. Officer Lynch then
sat Tibbs on the sidewalk, but Tibbs “jumped up and tried to take off running.” Id. at 64.
Officer Lynch immediately grabbed Tibbs and “pushed him onto the hood” of the patrol
car. Id. While on the hood of the patrol car, Tibbs “kept moving around” while Officer
Lynch tried to get control of him. Id. at 65.
After about ten seconds, Officer Lynch decided to move Tibbs to the other side of
the street. Officer Lynch then noticed a bag of marijuana on the street “between the
sidewalk where [Tibbs] had been sitting and in front of [Officer Lynch’s] car.” Id. at 66.
That marijuana was not there before Tibbs began struggling with Officer Lynch.
Detective George, who had come to assist Officer Lynch, observed the marijuana drop
from Tibbs’ person to the ground by Tibbs’ feet. Later, Tibbs again attempted to run
away. When he did so, his pants fell down and a set of digital scales fell out of his
pocket.
On August 9, the State charged Tibbs with resisting law enforcement, as a Class D
felony; two counts of resisting law enforcement, as Class A misdemeanors; and
possession of marijuana, as a Class A misdemeanor. The court held Tibbs’ jury trial on
March 15, 2012. The jury found Tibbs guilty of one count of resisting law enforcement,
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as a Class A misdemeanor, and possession of marijuana, as a Class A misdemeanor. The
court entered its judgment of conviction and sentence accordingly. This appeal ensued.
DISCUSSION AND DECISION
Standard of Review
On appeal, Tibbs contends that the State failed to present sufficient evidence to
support each of his convictions. When reviewing a claim of sufficiency of the evidence,
we do not reweigh the evidence or judge the credibility of the witnesses. Jones v. State,
783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence supporting
the verdict and the reasonable inferences that may be drawn from that evidence to
determine whether a reasonable trier of fact could conclude the defendant was guilty
beyond a reasonable doubt. Id. If there is substantial evidence of probative value to
support the conviction, it will not be set aside. Id.Issue One: Resisting Law Enforcement
To demonstrate resisting law enforcement as a Class A misdemeanor, the State
was required to show, in relevant part, that Tibbs knowingly or intentionally forcibly
resisted a law enforcement officer while the officer was engaged in his official duties.
Ind. Code § 35-44.1-3-1(a)(1). “[O]ne ‘forcibly resists’ when ‘strong, powerful, violent
means are used to evade a law enforcement official’s rightful exercise of his or her
duties.’” Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009) (quoting Spangler v. State,
607 N.E.2d 720, 723 (Ind. 1993)). It is well established that “even ‘stiffening’ of one’s
arms when an officer grabs hold to position them for cuffing would suffice” to show that
one “forcibly” resisted a law enforcement officer. Id. at 966. On the other hand, merely
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refusing to present one’s hands to an officer for handcuffing is insufficient to show one
forcibly resisted. See id. at 965-66.
Here, Tibbs asserts that the State’s evidence does not demonstrate that he forcibly
resisted Officer Lynch, and he analogizes the State’s evidence against him to the mere
refusal to present one’s hands for handcuffing in Graham. But Graham and related cases
are inapposite here. The State’s evidence against Tibbs demonstrates that, after Officer
Lynch had hold of Tibbs’ hands, Tibbs “jerked” his hands away from Officer Lynch.
Transcript at 62. This fact alone demonstrates that Tibbs forcibly resisted Officer Lynch.
Thus, the State presented sufficient evidence to support Tibbs’ conviction for resisting
law enforcement, as a Class A misdemeanor, and we affirm his conviction.
Issue Two: Possession of Marijuana
To demonstrate possession of marijuana as a Class A misdemeanor, the State was
required to show, in relevant part, that Tibbs knowingly or intentionally possessed
marijuana. See I.C. § 35-48-4-11. Tibbs asserts that the State failed to demonstrate that
he possessed the marijuana found by Officer Lynch because “[n]o marijuana was found
of Mr. Tibbs’ person. No one saw the bag of marijuana or digital scales fall from Mr.
Tibbs’ person.” Appellant’s Br. at 13. We cannot agree with Tibbs’ review of the
record.
Detective George testified that he saw the marijuana drop from Tibbs’ person onto
the street next to Tibbs’ feet. Officer Lynch testified that he observed a bag of marijuana
on the street “between the sidewalk where [Tibbs] had been sitting and in front of
[Officer Lynch’s] car” where there had been no marijuana prior to Tibbs’ struggle with
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Officer Lynch. Id. at 66. The officers’ testimony demonstrates that Tibbs actually
possessed the discovered marijuana. Accordingly, we affirm Tibbs’ conviction.
Affirmed.
FRIEDLANDER, J., and BRADFORD, J., concur.
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