Full Opinion (html_with_citations)

                                                                              FILED
                                                                         Nov 20 2023, 9:05 am

                                                                              CLERK
                                                                          Indiana Supreme Court
                                                                             Court of Appeals
                                                                               and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
                                                          Theodore E. Rokita
Timothy J. Burns                                          Attorney General of Indiana
Marion County Public Defender Agency
Appellate Division                                        Alexandria N. Sons
Indianapolis, Indiana                                     Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA
John Couch,                                               November 20, 2023
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          23A-CR-972
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable William J. Nelson,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49D18-2211-CM-31898



                                 Opinion by Judge Mathias
                               Judges Riley and Crone concur.


Mathias, Judge.




Court of Appeals of Indiana | Opinion 23A-CR-972 | November 20, 2023                              Page 1 of 6
[1]   John Couch appeals his conviction for Class A misdemeanor resisting law

      enforcement following a bench trial. He presents a single issue for our review,

      namely, whether the State presented sufficient evidence to support his

      conviction.

[2]   We reverse.


      Facts and Procedural History
[3]   On November 27, 2022, Couch was home with his five dogs when Caitlin

      Batchlor, an animal control officer for the City of Indianapolis, knocked on the

      door of Couch’s home. One of Couch’s dogs had been hit by a car the day

      before, and Batchlor was checking on the dog’s welfare. Couch had had

      previous interactions with animal control, and he was angry that Batchlor was

      there. An officer with the Indianapolis Metropolitan Police Department

      (“IMPD”) accompanied Batchlor.

[4]   Couch “yelled” at Batchlor and the officer “to get off his property,” so they

      moved to the sidewalk. Tr. p. 21. Batchlor was trying to ask Couch whether the

      dog had been seen by a veterinarian, but Couch yelled over her. Couch

      eventually retrieved some records from his visit to the veterinary clinic the day

      before and showed them to Batchlor. The records “indicated that [Couch] did

      not actually obtain any care for [the dog]. [The veterinarian] did the basic

      assessment and then [Couch] was given prescription medications,” but he had

      not obtained the medications. Id. at 22. Batchlor asked to see the dog, and



      Court of Appeals of Indiana | Opinion 23A-CR-972 | November 20, 2023      Page 2 of 6
      Couch carried her outside for Batchlor to see her. At that time, two of Couch’s

      other dogs ran outside.

[5]   Batchlor examined the injured dog and could see that she “did not appear

      well.” The injured dog “could not walk[.]” Id. In addition to the prescription

      medications, the dog was also in need of “proper care” for a possible fractured

      pelvis. Id. Batchlor took photographs of the veterinary records and gave them

      back to Couch. Batchlor told the IMPD officer that she was going to apply for a

      warrant “to remove the dogs” from Couch’s care, and they left. Id. at 23.


[6]   Batchlor obtained a search warrant later that morning, and she returned to

      Couch’s home with other animal control officers as well as four IMPD officers.

      When they executed the warrant, Couch was “irate” and “confrontational[.]”

      Id. at 25, 31. Couch stated that the dogs were “service dogs” and he yelled at

      the officers. Id. at 25. Couch asked to speak to a “supervisor,” and IMPD

      Officer Conrad Simpson told him that Sergeant Gregory “was already here.” Id.

      at 32. Couch then pointed at Sergeant Gregory and said, “I’ve always had a

      problem with you.” Id. Couch then “charged over in Sergeant Gregory’s

      direction” as though he were going to “initiate a physical confrontation.” Id.

      Before he reached Sergeant Gregory, however, officers intervened and

      attempted to place handcuffs on Couch.

[7]   Officer Simpson struggled to get the handcuffs on Couch, even with the

      assistance of other officers. Couch “tried to pull away,” and the officers pinned

      him against a truck. Id. at 33. Couch “had his left arm pulled up in front of


      Court of Appeals of Indiana | Opinion 23A-CR-972 | November 20, 2023      Page 3 of 6
      him” as he was pinned against the truck, and he “tr[ied] to pull it away from

      [Officer Simpson] to try to keep [him] from gaining control of his arm.” Id. at

      34. Couch “twisted and turned” while the officers attempted to handcuff him.

      Id. at 36. The officers were ultimately successful in securing Couch in

      handcuffs, and the animal control officers removed all five dogs from Couch’s

      home.

[8]   The State charged Couch with Class A misdemeanor resisting law enforcement

      and Class B misdemeanor disorderly conduct. During a bench trial on April 3,

      2023, Couch moved to dismiss the charges. The trial court denied that motion

      with respect to the resisting law enforcement charge but dismissed the

      disorderly conduct charge. The trial court found Couch guilty of Class A

      misdemeanor resisting law enforcement, entered judgment of conviction, and

      sentenced Couch to 365 days, all suspended. This appeal ensued.


      Discussion and Decision
[9]   Couch contends that the State presented insufficient evidence to support his

      conviction. Our standard of review is well settled.


              When an appeal raises “a sufficiency of evidence challenge, we
              do not reweigh the evidence or judge the credibility of the
              witnesses . . . .” We consider only the probative evidence and the
              reasonable inferences that support the verdict. “We will affirm ‘if
              the probative evidence and reasonable inferences drawn from the
              evidence could have allowed a reasonable trier of fact to find the
              defendant guilty beyond a reasonable doubt.’”




      Court of Appeals of Indiana | Opinion 23A-CR-972 | November 20, 2023          Page 4 of 6
       Phipps v. State,
90 N.E.3d 1190, 1195
 (Ind. 2018) (quoting Joslyn v. State,
942 N.E.2d 809, 811
 (Ind. 2011)).

[10]   To convict Couch of Class A misdemeanor resisting law enforcement, the State

       had to prove he knowingly or intentionally forcibly resisted, obstructed, or

       interfered with Officer Simpson while he was lawfully executing his duties. I.C.

       § 35-44.1-3-1(a)(1). Couch argues that, while he “was being argumentative”

       with officers, “he did not use force to resist.” Appellant’s Br. at 16. We must

       agree.

[11]   As we very recently explained,


                [a] person forcibly resists law enforcement when “‘strong,
                powerful, violent means are used to evade a law enforcement
                official’s rightful exercise of his or her duties.’” Walker v. State,
998 N.E.2d 724, 726-27
 (Ind. 2013) (quoting Spangler v. State,
607 N.E.2d 720, 723
 (Ind. 1993)). Even a modest exertion of
                strength, power, or violence may satisfy this element,
id. at 727
,
                but our Supreme Court has held that merely walking away from
                law enforcement, Spangler,
607 N.E.2d at 724
, refusing to present
                arms for handcuffing, Graham v. State,
903 N.E.2d 963, 966
 (Ind.
                2009), or turning and pulling away from an officer’s grasp, K.W.
                v. State,
984 N.E.2d 610, 611
 (Ind. 2013), do not rise to the level
                of forcible resistance. See also, e.g., Runnells v. State,
186 N.E.3d 1181
, 1185 (Ind. Ct. App. 2022) (“pulling away from [the
                officer’s] grasp”); Brooks v. State,
113 N.E.3d 782, 785
 (Ind. Ct.
                App. 2018) (“tensing up and pulling away” as officers tried to
                handcuff her).


       Denney v. State, No. 23A-CR-523,
2023 WL 6471161
, at *3 (Ind. Ct. App. Oct.

       5, 2023).

       Court of Appeals of Indiana | Opinion 23A-CR-972 | November 20, 2023         Page 5 of 6
[12]   Here, Couch attempted to pull away from officers, resisted efforts to move his

       left arm from in front of his body to the back of his body, and “twisted and

       turned” in a struggle with Officer Simpson. Tr. p. 36. But the evidence does not

       show that Couch used even “a modest exertion of strength, power, or violence”

       in those actions. See Denney,
2023 WL 6471161
, at *3. In fact, Officer Roberto

       DeJesus testified that, when Officer Simpson attempted to place Couch into

       handcuffs, Couch “kind of passive[ly] resist[ed] and flared up his arms” in an

       attempt to avoid being arrested. Tr. p. 40. We hold that the State did not prove

       that Couch acted forcibly when he resisted arrest, and the evidence is, therefore,

       insufficient to sustain his conviction for resisting law enforcement.


[13]   Reversed.


       Riley, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 23A-CR-972 | November 20, 2023     Page 6 of 6