Court of Appeals of Indiana | Memorandum Opinion | 49A05

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### MEMORANDUM DECISION
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.

A TTORNEY FOR A PPELLANT Timothy J. Burns Indianapolis, Indiana A TTORNEY S FOR A PPELLEE Gregory F. Zoeller Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana



### I N T H E 

# COURT OF APPEALS OF INDIANA

Estel Lynn , Appellant

- Defendant,

v. 

### State of Indiana , Appellee

- Plaintiff

. J une 30, 2015 Court of Appeals Cause No. 49A05

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- 1406

- CM

- 32751



### Riley , Judge
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### STATEMENT OF THE CASE Appellant

- Defendant, Estel Lynn ( Lynn ), appeals his conviction for resisting law enforcement, a Class A misdemeanor, Ind. Code § 35

- 44.1

- 3

- 1(a)(1) ( 2013 ) ; and battery, a Class A misdemeanor, I.C. § 35

- 42

- 2

- 1(a)(1)(b) (2012).

We affirm.



### ISSUE Lynn raises one issues on appeal which we restate as : Whether the State presented sufficient evidence beyond a reasonable doubt to sustain Lynn’s conviction for resisti ng law enforcement and battery

.



### FACTS AND PROCEDURAL HISTORY Shortly before 10:00 p.m. on June 22, 2014, Officer Jason Thalheimer (Officer Thalheimer) and Officer John Walters (Officer Walters) of the Indiana polis Metropolitan Police Department were sent to Woodland Drive, Indianapolis, Indiana to investigate a domestic disturbance. Upon their arrival, the complainant direct ed the officers to 20 Woodland Drive as being the residence

as to where the disturbance originated.

On the sidewalk in front of the residence , the officers encountered Melissa Linhart (Linhart). Linhart appeared distraught , she was crying and was looking for her car keys so she could to leave . Officer Thalheimer assisted in looking for the keys while Officer Walter s questioned her

. Linhart was i nitiallyCourt of Appeals of Indiana | Memorandum Opinion | 49A05

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reluctant to tell the o fficers what happened, but she eventually told the o fficers that she had been in a physical fight with Eric L ynn (Eric) , her live

- in boyfriend

. Officer Walters observed that Linhart had a small laceration in th e corner of her mouth

. Linhart then escorted the officers inside the residence that she shared with Eric, Eric’s father (Lynn), and Eric’s mother, Brenda Lynn (Brenda).

When the y entered the house , Lynn and Brenda were seated on the couch while Eric was l ying on the floor watching the television. Officer Walter s asked for Eric ’s identification . Eric declined , he laid back on the floor and said , “I am

not [] saying anything.” (Appellant’s App. p. 41). At that moment, Lynn “jumped off the couch” and approached the officers , telling them to “get the fuck out.” (Tr. pp. 39, 56). According to the officers, Lynn and Eric appeared intoxicated due to their slurred speech. Officer Thalheimer ordered Lynn to remain seated and be quiet. Lynn ign ored the command and instead , walked closer to Officer Walters , gave him two “fairly decent slaps ” on the back causing Officer Walter s to bend forward slightly , and stated “have a nice night and get out.” (Tr. p. 39). Since Lynn was too close to him, Off icer Walters push ed Lynn away , which caused Lynn to fall. Officer Walters also asked Lynn not to touch the police. When L ynn regained his balance , he squared his body toward Offic er Walters , and with a balled fist t old Officer Walter s that “ he

was going to beat [ his ] a ss.” (Tr. p. 41). Officer Walter s ordered Lynn to sit down, and Lynn complied. At that point, Officer Walter s resumed his arrest of Eric for battery

. Eric obeyed and placed his hands behind his back. However,Court of Appeals of Indiana | Memorandum Opinion | 49A05

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after Officer Walters got one handcuff on Eric’s left arm , Lynn got up from the couch again and yelled “you’ re not going to f ucking arrest my son , ” and he attempted to charge at Officer Walter s

. ( Tr. pp. 42

- 43)

. Lynn’s charge was subverted by Officer Thalheimer , who tackled Lynn to a nearby couch. Once on the couch, Lynn attempted to free himself from Officer Thalheimer’s hold , and Lynn told Officer Thalheimer to get off him. Officer Thalheimier commanded Lynn to stop resisting but Lynn refused and continued to strug gle

cau sing them to both roll off the couch and onto the floor

. Once on the floor , Officer Thalheimer used his body weight to subdue Lynn and he effectively hand cuffed him

. Eric’s observation of his father being arrested made him belligerent and aggressive

. Since Officer Walters had not yet fully hand cuffed Eric , Eric l unged toward Officer Thalheimer

. However, Officer Walter s quickly intercede d before Eric could attack Officer Thalheimer

. After Eric’s failed attempt to charge Officer Thalheimer, Officer Wal ters, who still had one handcuff on Eric, grabbed E ric’s left arm into a “half

- nelson head restraint.” (Appellant’s App. 12). Officer Walters then pressed Eric down to his knees. All the while, Eric tried to stand up but Officer Walters applied a wristlo ck, placed his knee in the middle of Eric’s shoulder blades , and directed Eric to give his right hand. Finally, Eric agreed.
The following day, June 22, 2014, the State filed an Information charging Lynn with resisting law enforcement, a Class A misdeme anor, Ind. Code § 35

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- 1(a)(1) ( 2013 ); and battery, a Class A misdemeanor, Ind. Code § 35

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- 2

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1(a)(1)(b) ( 2012 ) . On August 24, 2014, Lynn filed a pre

- trial motion to suppress the evidence obtained by the officers during his arrest. In support of th is motion, Lynn claimed that the challenged evidence should be suppressed because the police entry into his home was unlawful. On September 9, 2014, at the beginning of Lynn’s bench trial, the trial court heard Lynn’s motion. After receiving arguments from both parties , the trial court denied Lynn’s motion , finding that Linhart resided in Lynn’s home since January 2014, and Linhart had lawfully welcomed the officers into the home. The trial court then proceeded to Lynn’s bench trial. At the conclusio n of Lynn’s bench trial, Lynn was found guilty as charged. The trial court sentenced Lynn to concurrent sentences of 365 days on each Count

— four of which were executed

— with 361 days on each Count suspended

. Lynn now appeals. Additional information will be provided as necessary.

DISCUSSION AND DECISION
I

. Standard of Review Lynn claims that there is insufficient eviden ce to sustain his C lass A misdemeanor conviction s for resisting law enforcement and battery

. Our standard of review for sufficiency claims is well settled. We neither reweigh the evidence nor judge the credibility of the witnesses. Perrey v. State , 824 N.E.2d 372, 373 (Ind. Ct. App. 2005), trans. denied . We only consider the evidence most favor able to the judgment and the reasonable inferences to be drawn therefrom. Id . Where there is substantial evidence of probative value to support the judgment, it will not be set aside. Id

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### A . Resisting Law Enforcement First, Lynn argues that there was insufficient evidence that he committed the crime of resisting law enforcement. “A person who knowingly or intentionally

. . . forcibly resists, obstructs, or interferes with a law enforcement officer ... while the officer is lawfully engaged in t he exec ution of the officer’ s duties

. . . commits resisting law enforcement

. . . ” I.C. § 35

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- 1(a)(1) (2013) . The term “forcibly” is a distinct element of the offense that modifies all three verbs “resists, obstructs, or interferes.” K.W. v. State , 984 N.E.2d 610, 612 (Ind. 2013) (citing Spangler v. State , 607 N.E.2d 720, 723 (Ind. 1993)). Forcible resistance includes “at a minimum, some physical interaction with a law enforcement officer.” Macy v. State , 9 N.E.3d 249, 253 (Ind. Ct. App. 2014). Forcibl e resistance may be said to occur when a “threatening gesture or movement

. . . presents an imminent danger of bodily injury [to an officer].” Walker v. State , 998 N.E.2d 724, 727 (Ind. 2013) (holding there was sufficient evidence of forcible resistance w here defendant aggressively advanced toward a police officer with his fists clenched after being ordered to lay on the ground).
In the present case, Linhart directed the officers inside Lynn’s home to investigate a potential domestic abuse

. Lynn was upset that the officers were inside his home , and he ordered them to leave

. Despite Lynn’s directive , the officers commanded Lynn to remain seated and quiet. When Lynn saw Officer Walter s placing Eric in handcuffs, he became belligerent

. At tha t point, Lynn stood up from the couch and yelled profanities at the officers. Lynn also tried to charge Officer Walters , but Officer Thalheimer tackled Lynn to a nearbyCourt of Appeals of Indiana | Memorandum Opinion | 49A05

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couch. Officer Thalheimer restrained Lynn on the couch. Repeatedly, Lynn attempted t o free himself, and he told Officer Thalheimer to get off him . Lynn continued struggling with Officer Thalheimer and it caused them both t o roll off onto the floor. Officer Thalheimer used his body weight to subdue Lynn and he successfully cuffed him.
From the foregoing facts, we conclude that Lynn knowingly or intentionally forcibly resisted a law enforcement officer while the officer was lawfully engaged in the execution of the officer ’ s duties

— investigating the domestic disturbance and arresting Eric for battery. We therefore conclude that the evidence is sufficient to support Lynn’s conviction for resisting law enforcement. Lynn’s claim to the contrary amounts to an invitation for this court to reweigh the evidence, which we will not do. See Perrey , 824 N.E.2d at 373.



### B . Battery Turning to his batter y offense, t he trial court convicted Lynn of battery as a Class A misdemeanor. Thus, the State’ s evidence had to show that Lynn knowingly or intentionally touched Officer Walter s in a rude, ins olent, or angry

manner. See I.C. § 35

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- 1 (a)(1)(b) (2013)

. “A person engages in conduct knowingly if, when he engages in the conduct, he is aware of a high p r obability that he is doing so.” I.C. § 35

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- 2(b). We note that touching , no matter how sl ight , may be a battery. Impson v. State , 721 N.E.2d 1275, 1285 (Ind. Ct. App. 2000). “Indeed, a person may commit the touching necessary for battery byCourt of Appeals of Indiana | Memorandum Opinion | 49A05

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touching another’s apparel because it is intimately connected with the person and is regarded as part of a person for purposes of the battery statute.” Id

. Lynn argues that his conviction for battery should be reversed because “the backslapping combined with the statement , ‘have a nice night’ takes this exchange outside the parameters of a criminal act.” (Appellant’s App. p. 8). We disagree. The record shows that after the officers refused to leave, Lynn walked close to Officer Walters , gave him two slaps on the back and told him to get out. In addition, there was testimony from both officers that Lynn was angry at the time. As a result, this evidence was sufficient for the trial court to infer that a battery occurred.



### CONCLUSION Based on the foregoing, we conclude that the State presented sufficient evidence to support Lynn’s conviction s for resisting law enforcement and battery.

Affirmed.
Bailey, J. and Barnes, J. concur