Marilyn Carter v. State of Indiana ( 2013 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
TIMOTHY J. BURNS GREGORY F. ZOELLER
Indianapolis, Indiana Attorney General of Indiana
RICHARD WEBSTER
Deputy Attorney General
FILED
Indianapolis, Indiana
Jan 17 2013, 9:26 am
IN THE
COURT OF APPEALS OF INDIANA CLERK
of the supreme court,
court of appeals and
tax court
MARILYN CARTER, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1206-CR-457
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Barbara Collins, Judge
The Honorable Deborah Shook, Commissioner
Cause No.49F08-1203-CM-19627
January 17, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Marilyn Carter appeals her convictions for resisting law enforcement1 and battery,2
both as Class A misdemeanors, contending that the evidence was not sufficient to support
the convictions. We affirm.
On March 23, 2012, Carter was at Arlington High School in Indianapolis for a
conference with school officials regarding her daughter who was a student at the school.
While at the school, Carter became loud and boisterous and refused the request of
Indianapolis Public Schools Police Officer Marzetta Jenkins to leave the building. After
Carter pushed Officer Jenkins, Officer Jenkins and another officer attempted to place
handcuffs on Carter. Carter struggled with the officers and swung her arms. The officers
gained control, handcuffed Carter, and placed her under arrest for resisting law
enforcement and battery.
On appeal, Carter contends that the evidence is insufficient to support her
convictions. When reviewing the 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 judgment and
the reasonable inferences therein 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.To prove battery as a Class A misdemeanor, the State was required to prove that
Carter knowingly or intentionally touched Officer Jenkins in a “rude, insolent or angry
manner.” Ind. Code § 35-42-2-1. At trial, both police officers testified that Carter yelled
1
See Ind. Code § 35-44-3-3(a), now Ind. Code § 35-44.1-3-1.
2
See Ind. Code § 35-42-2-1.
2
and lunged at Officer Jenkins and then pushed her causing her to lose her balance. Tr. at
18, 27. Although Carter claims that, in pushing Officer Jenkins, she was protecting her
daughter and was not rude, insolent, or angry, it was for the trier of fact to consider such
claim, to determine the credibility of the witnesses, and to resolve any conflicts in the
evidence. Viewed consistently with our standard of review, this evidence is clearly
sufficient to support the battery conviction.
To prove resisting law enforcement, as a Class A misdemeanor, the State was
required to prove that Carter knowingly and forcibly resisted, obstructed, or interfered
with an officer while said officer was lawfully engaged in the execution of her duties as a
law enforcement officer. See Ind. Code § 35-44-3-3. Both officers testified that they
attempted to place Carter in handcuffs after she pushed Officer Jenkins and that Carter
yelled, swung her arms, physically resisted the officers’ attempt to put her in handcuffs,
and then continued to resist their efforts to take her from the attendance office to the
police office.
Our Supreme Court has held that, while “ ‘[i]t is error as a matter of law to
conclude . . . that ‘forcibly resists’ includes all actions that are not passive[,]” Graham v.
State, 903 N.E.2d 963, 965 (Ind. 2009) (quoting Spangler v. State, 607 N.E.2d 720, 724
(Ind. 1993)), it has also made clear that “ ‘[t]he force involved need not rise to the level
of mayhem.’ ” Id. Carter was not convicted for passive acts. Again, viewed consistently
with our standard of review, this evidence is sufficient to support the conviction.
Affirmed.
MATHIAS, J., and CRONE, J., concur.
3