Chelsey Cody v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 31 2017, 9:46 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
Timothy J. Burns Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General
Katherine Cooper
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Chelsey Cody, May 31, 2017
Appellant-Defendant, Court of Appeals Case No.
49A05-1612-CR-2681
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable David J. Certo,
Appellee-Plaintiff. Judge
The Honorable David Hooper,
Magistrate
Trial Court Cause No.
49G12-1606-CM-21362
Pyle, Judge.
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Statement of the Case
[1] Chelsey Cody (“Cody”) appeals her conviction, following a bench trial, for
Class A misdemeanor resisting law enforcement.1 Cody argues there is
insufficient evidence that she forcibly resisted the police officer. Concluding
that Cody’s argument is merely a request to reweigh the evidence, we deny this
request and affirm her conviction.
[2] We affirm.
Issue
Whether sufficient evidence supports Cody’s resisting law
enforcement conviction.
Facts
[3] On June 2, 2016, Sergeant James Trimble (“Sergeant Trimble”) and Deputy
Merrill of the Marion County Sheriff’s Department responded to a dispatch call
to serve an outstanding warrant on Cody. Both officers arrived in a marked
police car and were dressed in full uniform. When they arrived, Cody was
sitting in her vehicle while on a work break. As Sergeant Trimble and Deputy
Merrill approached the driver’s side of her vehicle, Cody locked the doors and
rolled up the windows.
1
IND. CODE § 35-44.1-3-1.
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[4] Sergeant Trimble identified himself as a police officer, told Cody that she had a
warrant, and instructed Cody, through the closed window, to get out of the
vehicle. However, Cody refused. Sergeant Trimble “gave several more loud
commands for her to exit the vehicle.” (Tr. Vol 2 at 9). Cody ignored his
instructions and called 911. The dispatcher instructed Cody to exit and
contacted Sergeant Trimble. Thereafter, Sergeant Trimble again informed
Cody she had an outstanding arrest warrant. Deputy Merrill then went to the
slightly ajar back passenger window and ordered Cody to get out of the car.
When Cody refused again, the officer advised her that if she did not exit, she
would be tased. Cody opened the driver’s door but refused to get out and
stand. Sergeant Trimble “extracted her from the vehicle using an arm bar take
down.” (Tr. Vol 2 at 10). He then told her to get on the ground. Cody refused
and “spun away” from the Sergeant. (Tr. Vol 2 at 10). Sergeant Trimble used a
“front leg sweep” to gain control of her and get her on the ground. (Tr. Vol 2 at
10). Cody was then arrested and taken into custody.
[5] The State charged Cody with Class A misdemeanor resisting law enforcement.2
The trial court held a bench trial, and Sergeant Trimble and Cody testified. The
trial court found Cody guilty of resisting law enforcement and imposed a 365
day sentence and suspended 355 days. Cody now appeals.
2
The State also charged Cody with Class B misdemeanor possession of marijuana, but that charge was
dismissed at trial.
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Decision
[6] Cody argues that the evidence was insufficient to support her conviction for
Class A misdemeanor resisting law enforcement.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks
and citations omitted) (emphasis in original).
[7] The resisting law enforcement statute provides that “[a] person who knowingly
or intentionally forcibly resists, obstructs or interferes with a law enforcement
officer . . . while the officer is lawfully engaged in the execution of the officer’s
duties” commits class A misdemeanor resisting law enforcement. I.C. § 35-
44.1-3-1(a)(1). To convict Cody as charged, the State was required to prove
beyond a reasonable doubt that Cody knowingly or intentionally forcibly
resisted, obstructed, or interfered with Sergeant Trimble while he was lawfully
engaged in the execution of his duties.
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[8] Cody argues that there was insufficient evidence to show that she forcibly
resisted the officer. The Indiana Supreme Court has held that one forcibly
resists when one uses “strong, powerful, violent means to impede an officer,”
but noted that the standard “may be satisfied with even a modest exertion of
strength, power, or violence.” Walker v. State, 998 N.E.2d 724,727-28 (Ind.
2013). The force needed need not rise to the level of mayhem. Graham v. State,
903 N.E.2d 963, 965 (Ind. 2009). It is well established that even stiffening one’s
arm when an officer grabs hold to position them for cuffing would suffice. Id.
at 966.
[9] There is sufficient evidence to support the trial court’s determination that Cody
forcibly resisted law enforcement. Cody refused several times to exit her
vehicle even after being informed that Sergeant Trimble had a warrant for her
arrest. Sergeant Trimble testified Cody spun to get away from him. Cody’s act
of spinning away from the officer as he grabbed her arm and pulled her from
the car demonstrates that she forcibly resisted the officer. The spin was a
“modest exertion of strength, power or violence.” See Walker, 998 N.E.2d at
727-28. As such, sufficient evidence exists to support that Cody forcibly
resisted the officer.
[10] Cody suggests that she offered only passive, not forceful, resistance. Cody
contends that her spinning away from the officer as he grabbed her out of the
car did not amount to forcible resisting because it “is possible that she spun
away [because] she lost her balance.” (Cody’s Br. 11). In support of her
argument, she cites to Macy v. State, 9 N.E.3d 249 (Ind. Ct. App. 2014), Colvin v.
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State, 916 N.E.2d 306, 309 (Ind. Ct. App. 2009), and Berberena v. State, 914
N.E.2d 780, 782 (Ind. Ct. App. 2009). These cases are distinguishable because,
unlike the defendants in those cases, Cody forcibly resisted the officer.
[11] Cody’s argument is merely a request to reweigh the evidence. We will not
reweigh the evidence or judge the credibility of witnesses. See Drane v. State,
867 N.E.2d at 146. When entering its verdict, the trial court stated that it gave
more credibility to Sergeant Trimble’s testimony. Specifically, it stated that
“[b]ased on the testimony . . . [it believed] that Sergeant Trimble’s account of
Cody’s conduct is a more complete [. . .] and accurate description of how the
incident occurred.” (Tr. Vol. 2 at 38). There was sufficient evidence from
which the trial court, as trier of fact, could have found that Cody resisted law
enforcement.
[12] Affirmed.
May, J., and Brown, J., concur.
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