Court of Appeals of Indiana | Memorandum Decision 49A02-1609-CR-2104 | March 9, 2017 Page 1 of 10

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.

ATTORNEY FOR APPELLANT

Barbara J. Simmons

Oldenburg, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Ellen H. Meilaender

Supervising Deputy Attorney

General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Calvin McGregory,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 9, 2017

Court of Appeals Case No.

49A02-1609-CR-2104

Appeal from the Marion Superior 

Court

The Honorable Allan W. Reid, 

Commissioner

Trial Court Cause No.

49G16-1604-CM-13705

Brown, Judge.
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[1] Calvin McGregory appeals his conviction for resisting law enforcement as a 

class A misdemeanor. McGregory raises one issue which we revise and restate 

as whether the evidence is sufficient to sustain his conviction. We affirm.

Facts and Procedural History

[2] On April 11, 2016, Indianapolis Metropolitan Police Officer James Perry was 

dispatched to investigate a disturbance between a male and a female. He pulled 

up to the scene in his marked police car and observed a woman who was 

bloody, muddy, visibly upset, shaken, crying, angry, and appeared frightened in 

the street walking toward him. She directed him to McGregory in the residence

where Officer Perry observed broken glass all over the front porch. He knocked 

on the door of the residence, announced that he was a police officer, told 

McGregory that he wanted to speak with him, and asked if McGregory would 

step outside to speak with him. McGregory exited the residence and was 

agitated, confrontational, “very questioning of what [the police] were doing and 

why [the police] were talking to him,” and not responsive initially to any 

questions. Transcript at 9. Officer Perry attempted to speak with McGregory, 

but did not receive responses and was “met with questions.” Id. at 12. Officer 

Perry feared for his safety given McGregory’s increasingly aggravated state and 

the information he had been given and decided to handcuff him.1

 

 

1 Officer Perry testified that the information he received was that a male was accused of throwing a female off 

a porch. McGregory’s counsel objected on the basis of hearsay, and the prosecutor argued that the evidence 

was admissible as course of the investigation evidence. The court clarified with the prosecutor that the 
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[3] Officer Perry asked McGregory to turn around, and McGregory did so. When 

Officer Perry attempted to handcuff him, McGregory “tensed up,” and “pulled 

his hands away” and was “physically pulling them out of” Officer Perry’s hand. 

Id. at 10. Officer Perry again attempted to handcuff him, and McGregory did 

the same thing and remained “very tense, very tight, balled his fists,” and 

“pulled his arms away from” Officer Perry. Id. At that time, Officer Perry 

placed his right arm under McGregory’s right arm, his left arm over 

McGregory’s left shoulder, and leveraged his weight against McGregory to take 

him to the ground. 

[4] While on the ground, Officer Shaw came to aid Officer Perry with placing 

McGregory in handcuffs. Officer Shaw pulled McGregory’s right arm from 

under his body, and Officer Perry was able to pull his left arm out. Officer 

Shaw put one handcuff on McGregory’s right arm, and Officer Perry was able 

to handcuff his left arm. 

[5] On April 12, 2016, the State charged McGregory with resisting law 

enforcement as a class A misdemeanor and battery as a class B misdemeanor. 

On August 19, 2016, the court granted the State’s motion to dismiss the charge 

of battery. That same day, the court held a bench trial. During crossexamination, when asked whether he explained to McGregory why he was 

being detained, Officer Perry stated: “I didn’t have an opportunity to.” Id. at 

 

testimony would not be offered for the truth of the matter asserted, allowed it for course of investigation but 

not as substantive evidence, and overruled the objection. 
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14. McGregory testified that his girlfriend broke the window with a chair. He 

also testified: 

As I stepped outside of my door to my porch, the officer, he 

asked me to turn around. I turned around, but all the while I’m 

asking him to turn around, I’m asking him, okay, I’m still trying 

to figure out why he’s here. So as I’m turning around, he 

instantly reached for my right hand and right then and there I 

simply turned and I asked him. I’m like, hey, am I under arrest 

or am I being detained? I’m asking him these questions. I’m not 

– I’m not, you know, trying to pull away from him. I’m just 

pretty much trying to ask something.

Id. at 26. He testified that Officer Perry did not ask him any questions and did 

not explain to him what was happening. He also testified that Officer Perry 

told him to stop resisting when he took him down to the ground and that he 

was not resisting. 

[6] After the presentation of evidence, the court stated: “[I]t basically goes between 

what Officer Shaw said --- or Perry and what you said. And the Court tends to 

believe that when he asked you to turn around, I mean, you indicated that you 

were agitated, that you weren’t complying with what they were saying. And so 

the Court does believe that you knowingly, forcibly resist or obstruct or at least 

in the very least interfere with what the officer said.” Id. at 38. The court found 

McGregory guilty of resisting law enforcement as a class A misdemeanor and 

sentenced him to 180 days with 176 days suspended. 
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Discussion

[7] The issue is whether the evidence is sufficient to sustain McGregory’s 

conviction. When reviewing the sufficiency of the evidence to support a 

conviction, we must consider only the probative evidence and reasonable 

inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007). We do not assess witness credibility or reweigh the evidence. Id. We 

consider conflicting evidence most favorably to the trial court’s ruling. Id. We 

affirm the conviction unless “no reasonable fact-finder could find the elements 

of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 

726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence 

overcome every reasonable hypothesis of innocence. Id. at 147. The evidence 

is sufficient if an inference may reasonably be drawn from it to support the 

verdict. Id.

[8] The offense of resisting law enforcement as a class A misdemeanor is governed 

by Ind. Code § 35-44.1-3-1, which at the relevant time provided that “[a] person 

who knowingly or intentionally . . . forcibly resists, obstructs, or interferes with 

a law enforcement officer or a person assisting the officer while the officer is 

lawfully engaged in the execution of the officer’s duties . . . commits resisting 

law enforcement, a Class A misdemeanor . . . .”2

 The charging information 

alleged that McGregory “did knowingly forcibly resist, obstruct or interfere 

 

2 Subsequently amended by Pub. L. No. 198-2016, § 673 (eff. July 1, 2016). 
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with JAMES AARON PERRY, a law enforcement officer with the 

Indianapolis Metro Police Dept, while said officer was lawfully engaged in his 

duties as a law enforcement officer.” Appellant’s Appendix II at 18. 

[9] McGregory argues that the State did not prove forcible resistance. He also 

asserts that he did not threaten Officer Perry, his reaction of tensing up and 

pulling his hands away was not threatening or violent, and Officer Perry offered 

no explanation of what he was trying to do. The State argues that the evidence 

is sufficient where he resisted being handcuffed by Officer Perry, physical pulled 

his hands away and out of the hands of Officer Perry, tensed up, and balled his 

fists. 

[10] The Indiana Supreme Court has observed that “[s]uch a seemingly simple 

statute . . . has proven to be complex and nuanced in its application.” Walker v. 

State, 998 N.E.2d 724, 726 (Ind. 2013). In Spangler v. State, 607 N.E.2d 720, 

722-723 (Ind. 1993), the Indiana Supreme Court held that the word “forcibly” is 

an essential element of the crime and modifies the entire string of verbs—resists, 

obstructs, or interferes—such that the State must show forcible resistance, 

forcible obstruction, or forcible interference. The Court also held that the word 

meant “something more than mere action.” Spangler, 607 N.E.2d at 724. 

“[O]ne ‘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.” Id. at 723. “[A]ny action to resist must be done with force in order to 

violate this statute. It is error as a matter of law to conclude that ‘forcibly 

resists’ includes all actions that are not passive.” Id. at 724.
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[11] “But even so, ‘the statute does not demand complete passivity.’” Walker, 998 

N.E.2d at 727 (quoting K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013)). In 

Graham v. State, 903 N.E.2d 963, 965 (Ind. 2009), the Court clarified that “[t]he 

force involved need not rise to the level of mayhem.” “In fact, even a very 

‘modest level of resistance’ might support the offense.” Walker, 998 N.E.2d at 

727 (quoting Graham, 903 N.E.2d at 966) (“even ‘stiffening’ of one’s arms when 

an officer grabs hold to position them for cuffing would suffice”)). The Indiana 

Supreme Court held:

So in summary, not every passive—or even active—response to a 

police officer constitutes the offense of resisting law enforcement, 

even when that response compels the officer to use force.

Instead, a person “forcibly” resists, obstructs, or interferes with a 

police officer when he or she uses strong, powerful, violent 

means to impede an officer in the lawful execution of his or her 

duties. But this should not be understood as requiring an 

overwhelming or extreme level of force. The element may be 

satisfied with even a modest exertion of strength, power, or 

violence. Moreover, the statute does not require commission of a 

battery on the officer or actual physical contact—whether 

initiated by the officer or the defendant. It also contemplates 

punishment for the active threat of such strength, power, or 

violence when that threat impedes the officer’s ability to lawfully 

execute his or her duties.

Id. 

[12] In Berberena v. State, which is cited by McGregory, a police officer “gave several 

loud verbal commands” for Edwin Berberena to stop. 914 N.E.2d 780, 780-781

(Ind. Ct. App. 2009), trans. denied. The police officer ordered Berberena to 
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place his hands behind his back, but Berberena did not comply. Id. at 781. The 

officer then “had to forcefully place [Berberena] against the wall of the building. 

[Berberena’s] chest was facing the building, and [the officer] had to struggle 

with him to grab his hands and place them in handcuffs.” Id. The trial court 

found Berberena guilty of resisting law enforcement. Id. On appeal, the court 

held that the officer’s testimony “that he struggled to place the handcuffs on 

Berberena’s wrists [was] ambiguous.” Id. at 782. The court also observed that 

the officer “did not testify, and there [was] no evidence, that Berberena stiffened 

his arms or otherwise ‘made threatening or violent actions’ to contribute to the 

struggle.” Id. (quoting Ajabu v. State, 704 N.E.2d 494, 496 (Ind. Ct. App. 

1998)). Lastly, the court observed that the officer “could not remember what 

Berberena was doing with his hands, and the struggle did not last very long.” 

Id. The court concluded that the evidence was insufficient to support 

Berberena’s conviction. Id. at 783.

[13] McGregory also cites Colvin v. State, 916 N.E.2d 306 (Ind. Ct. App. 2009), trans.

denied. In that case, Curtis Colvin kept his hands in his pockets during a 

struggle with officers and did not comply with officers’ commands, and the 

officers had to use force to execute the arrest. 916 N.E.2d at 309. The State did 

not present any evidence that Colvin used force or made threatening or violent 

actions to contribute to the struggle with the officers. Id. The court held that 

the evidence did not support a reasonable inference that Colvin did more than 

passively resist the officers. Id.
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[14] Here, unlike the defendants’ actions in Berberena and Colvin, we cannot say that 

the State did not present any evidence that McGregory used force. The record 

reveals that McGregory was agitated, confrontational, very questioning of 

Officer Perry, and not responsive to his questions. When Officer Perry 

attempted to handcuff him, McGregory “tensed up,” and “pulled his hands 

away” from Officer Perry “physically pulling them out of” Officer Perry’s hand. 

Transcript at 10. Officer Perry again attempted to handcuff him, and 

McGregory did the same thing and remained “very tense, very tight, balled his 

fists,” and “pulled his arms away from” Officer Perry. Id. While on the 

ground, Officer Shaw came to aid Officer Perry. Officer Shaw pulled 

McGregory’s right arm from under his body, Officer Perry was able to pull his 

left arm out, and they were then able to handcuff McGregory. 

[15] Based upon the record, we conclude that there exists evidence of probative

value from which a reasonable trier of fact could find that McGregory exercised 

at least a modest exertion of strength, power, or violence that impeded Officer 

Perry in the lawful execution of his duties and that he was guilty beyond a 

reasonable doubt of resisting law enforcement as a class A misdemeanor. See 

Lopez v. State, 926 N.E.2d 1090, 1093-1094 (Ind. Ct. App. 2010) (holding that 

the evidence was sufficient to prove that the defendant acted with the requisite 

force in resisting the officers in the execution of their duties where the defendant 

refused to stand and “started to pull away” when the officers tried to physically 

pull him up from the couch and where the officers were unable to pull his arms 

out from under the defendant), trans. denied; Johnson v. State, 833 N.E.2d 516, 
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518-519 (Ind. Ct. App. 2005) (holding that the defendant forcibly resisted police 

officers by turning away and pushing away with his shoulders as they attempted 

to search him, refusing to enter the transport vehicle, and stiffening up, thus 

requiring the officers to exert force to place him inside the transport vehicle).

Conclusion

[16] For the foregoing reasons, we affirm McGregory’s conviction.

[17] Affirmed.

Vaidik, C.J., and Bradford, J., concur.