MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this Jun 30 2015, 10:38 am
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
Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Estel Lynn, June 30, 2015
Appellant-Defendant, Court of Appeals Cause No.
49A05-1410-CR-467
v. Appeal from the Marion Superior
Court.
State of Indiana, The Honorable Anne Flannelly,
Magistrate.
Appellee-Plaintiff.
Cause No. 49G17-1406-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 resisting 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 Indianapolis
Metropolitan Police Department were sent to Woodland Drive, Indianapolis,
Indiana to investigate a domestic disturbance. Upon their arrival, the
complainant directed 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 Walters questioned her. Linhart was initially
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reluctant to tell the officers what happened, but she eventually told the officers
that she had been in a physical fight with Eric Lynn (Eric), her live-in
boyfriend. Officer Walters observed that Linhart had a small laceration in the
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 they entered the house, Lynn and Brenda were seated on the couch while
Eric was lying on the floor watching the television. Officer Walters 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 ignored the command and instead, walked
closer to Officer Walters, gave him two “fairly decent slaps” on the back
causing Officer Walters to bend forward slightly, and stated “have a nice night
and get out.” (Tr. p. 39). Since Lynn was too close to him, Officer Walters
pushed Lynn away, which caused Lynn to fall. Officer Walters also asked
Lynn not to touch the police. When Lynn regained his balance, he squared his
body toward Officer Walters, and with a balled fist told Officer Walters that “he
was going to beat [his] ass.” (Tr. p. 41). Officer Walters ordered Lynn to sit
down, and Lynn complied. At that point, Officer Walters resumed his arrest of
Eric for battery. Eric obeyed and placed his hands behind his back. However,
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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 fucking arrest my son,” and he
attempted to charge at Officer Walters. (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 struggle
causing 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
handcuffed him.
Eric’s observation of his father being arrested made him belligerent and
aggressive. Since Officer Walters had not yet fully handcuffed Eric, Eric lunged
toward Officer Thalheimer. However, Officer Walters quickly interceded
before Eric could attack Officer Thalheimer. After Eric’s failed attempt to
charge Officer Thalheimer, Officer Walters, who still had one handcuff on Eric,
grabbed Eric’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 wristlock, 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 misdemeanor, Ind. Code § 35-44.1-3-
1(a)(1) (2013); and battery, a Class A misdemeanor, Ind. Code § 35-42-2-
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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 this
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 conclusion 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 evidence to sustain his Class A
misdemeanor convictions 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 favorable 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 the execution of the officer’s duties . . .
commits resisting law enforcement . . . ” I.C. § 35-44.1-3-1(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). Forcible
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 where 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
Walters placing Eric in handcuffs, he became belligerent. At that 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 nearby
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couch. Officer Thalheimer restrained Lynn on the couch. Repeatedly, Lynn
attempted to free himself, and he told Officer Thalheimer to get off him. Lynn
continued struggling with Officer Thalheimer and it caused them both to 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 battery offense, the 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 Walters in a rude, insolent, or angry
manner. See I.C. § 35-42-2-1(a)(1)(b)(2013). “A person engages in conduct
knowingly if, when he engages in the conduct, he is aware of a high probability
that he is doing so.” I.C. § 35-41-2-2(b). We note that touching, no matter how
slight, 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 by
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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 convictions for resisting law enforcement and battery.
Affirmed.
Bailey, J. and Barnes, J. concur
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