MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), Mar 10 2016, 8:20 am
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.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Ruth Johnson Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Appellate Division
Larry D. Allen
Indianapolis, Indiana Deputy Attorney General
Timothy J. Burns Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Gilberto Jimenez, March 10, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1506-CR-536
v. Appeal from the
Marion Superior Court
State of Indiana, The Honorable Dylan A. Vigh,
Appellee-Plaintiff. Judge Pro Tempore
Trial Court Cause No.
49F09-1403-CM-11153
Kirsch, Judge.
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[1] Following a bench trial, Gilberto Jimenez (“Jimenez”) was convicted of Class
A misdemeanor resisting law enforcement.1 He appeals, asserting that the
evidence was insufficient to convict him because, when he struggled with a
police officer, he mistakenly believed that the police officer was a thief attacking
his son.
[2] We affirm.
Facts and Procedural History
[3] Around 10:00 p.m. on the night of March 4, 2014, Indianapolis Metropolitan
Police Department (“IMPD”) received a report of a hit and run accident in
which a pedestrian had been struck by a green Ford. IMPD Officer Joe Kellar
was dispatched to the area to search for the vehicle. While patrolling an
apartment complex, Officer Kellar located a vehicle that matched the
description and license plate of the Ford involved in the accident. As Officer
Kellar approached the green Ford in his marked patrol car, a man, later
identified as Yeckzee Jimenez (“Yeckzee”),2 who is Jimenez’s son, exited the
car. Officer Kellar parked his patrol car, got out, and walked toward the green
Ford. At that time, Yeckzee emerged from the shadow of a nearby apartment
building and started to walk toward the Ford. Officer Kellar, who was in “full
1
See Ind. Code § 35-44.1-3-1(a)(1). We note that this statute was amended effective July 1, 2014; however,
Jimenez committed his offense in March 2014, and we will apply the statute in effect at that time.
2
We note that the Transcript spells his name both as “Yeckzze” and “Yeckzee.” Tr. at 27, 29, 37. Jimenez’s
brief uses the latter spelling, Yeckzee, Appellant’s Br. at 3-4, and we will do the same.
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police uniform,” asked to speak with Yeckzee, but he looked at Officer Kellar
and ran away. Tr. at 21. When Officer Kellar ordered Yeckzee to stop, he did
not, and he ran to the door of a nearby townhome. Officer Kellar chased
Yeckzee a short distance and advised IMPD dispatch of the situation.
[4] When Yeckzee arrived at the townhome, he began to open the front door, but
Officer Kellar caught up to Yeckzee before he entered the home and grabbed
Yeckzee by the jacket in order to detain him. Yeckzee wrestled with Officer
Kellar, punching him in the chest and pulling away. Yeckzee was able to get
the door open and tried to get inside the residence. As Officer Kellar was
fighting with Yeckzee and attempting to place him in handcuffs, an individual
who had been inside the residence, later identified as Jimenez, came out and
“came toward” Officer Kellar. Id. at 23. Jimenez pushed Officer Kellar
backward, punched him in the chest, and attempted to pull Yeckzee inside the
home and away from Officer Kellar’s grasp. Jimenez was “angry” and was
yelling at Officer Kellar. Id. at 24. Yeckzee was attempting to slip out of his
jacket in order to escape Officer Kellar’s grasp and get into the residence. At
some point in the struggle, Officer Michael Kavanaugh arrived, grabbed
Yeckzee, and wrestled him to the ground. Both Yeckzee and Jimenez were
placed in handcuffs.
[5] The State charged Jimenez with Class A battery on a police officer and Class A
misdemeanor resisting law enforcement. At the bench trial, Officer Kellar
testified that the struggle with Yeckzee and Jimenez lasted sixty to ninety
seconds, until back-up assistance arrived. Officer Kellar described that Jimenez
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was pushing him in a “violent” manner and was “slamming the door into me.”
Id. at 32-33. Officer Kellar testified that he verbally identified himself as
“police” and yelled at Jimenez to stop and “get back,” but Jimenez continued
to attempt to push Officer Kellar away and pull Yeckzee inside the residence.
Id. at 25. Because Officer Kellar noticed that Jimenez was yelling in Spanish,
Officer Kellar yelled, “policia” two to three times. Id. at 25, 34. Officer Kellar
described the “full uniform” that he was wearing that night as including a
baseball hat with an IMPD badge on the front of it, cargo pants, and long
sleeves. Id. at 30. The uniform included a police badge and IMPD markings.
Officer Kellar described that it stated “Indianapolis Metro Police” in “very
large” letters. Id. at 34. Officer Kellar was also wearing his police belt with all
the usual police equipment and tools on it.
[6] Jimenez testified that on the night in question, around 9:00 or 9:30 p.m., he was
preparing dinner in the kitchen of the apartment where he lived with his son,
Yeckzee. Jimenez stated that, around that time period, he had seen his son go
into his bedroom, come back out, and leave the apartment, but Yeckzee came
back after a few minutes, and Jimenez told him that he was making dinner.
Three or four minutes later, Jimenez “heard a struggle like a noise in the door.”
Id. at 38. Jimenez looked out a window to see what was happening, and he
saw someone wearing a black jacket grabbing Yeckzee’s jacket, and they were
struggling. Jimenez testified that he saw his son trying to close the front door,
and Jimenez believed that “someone was mugging my son.” Id. at 40. Having
been a victim of theft before, Jimenez “was so scared” that it was happening
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again. Id. Jimenez said he reached out of the door, that was open about one
foot, and tried to intervene and help his son, but he denied striking the
individual, who was Officer Kellar, stating that he only tried to separate the
hand that was grabbing his son’s jacket. Jimenez explained that he did not see
the police uniform, as the person was “hunched over,” and “[t]he only thing I
could see was the hand” and a black jacket. Id. at 41, 43. Jimenez testified that
the light in the inside corridor and living room was turned off, and that the only
inside light that was on was in the kitchen. He said that as soon as he heard the
word “police” he immediately “moved away[.]” Id. at 42. He said another
officer arrived at the scene, and he allowed both of them into the apartment.
[7] The State called Officer Kellar as a rebuttal witness, and he testified to the
lighting on the doorstep where the altercation took place. He said that it was a
single “household” bulb “attached to the outer wall beside the door” that
illuminated the immediate area around the door entrance. Id. at 44. Officer
Kellar described that it was sufficient for him to “get a good look at” Yeckzee
and Jimenez. Id. at 45. Officer Kellar did not remember if he was wearing a
jacket that night, but stated that, if he was, as Jimenez recalled seeing, it has a
badge on it and IMPD patches on the shoulders. Officer Kellar testified that,
contrary to Jimenez’s testimony, Jimenez did not stop struggling as soon as
Officer Kellar said “policia,” recalling that he had to yell it multiple times. Id.
at 46. Officer Kellar acknowledged that his police car was not visible from the
apartment doorstep.
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[8] The trial court took the matter under advisement, ultimately finding Jimenez
guilty of resisting law enforcement.3 Jimenez now appeals.
Discussion and Decision
[9] In reviewing a challenge to the sufficiency of the evidence, we will not reweigh
the evidence or judge the credibility of the witnesses. Johnson v. State, 833
N.E.2d 516, 517 (Ind. Ct. App. 2005). We consider only the evidence that
supports the conviction and any reasonable inferences supporting the
conviction. Jordan v. State, 37 N.E.3d 525, 530 (Ind. Ct. App. 2015). We will
affirm the conviction unless no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id. (quotations omitted). It is not
necessary that the evidence overcome every reasonable hypothesis of
innocence. Id.
[10] Indiana Code section 35-44-3-3(a) states, “A person who knowingly or
intentionally: (1) 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 his duties as an officer . . . commits resisting law enforcement,
a Class A misdemeanor.” Thus, to convict Jimenez of resisting law
enforcement as a Class A misdemeanor, the State needed to prove that he
knowingly or intentionally forcibly resisted, obstructed, or interfered with
3
The trial court sentenced Jimenez to one year in the county jail, all of which was suspended except for
credit for time served, and ordered no probation but required Jimenez to perform thirty-two hours of
community service.
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Officer Kellar while he was lawfully engaged in the execution of his duties.
Our Supreme Court has 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.” Jordan, 37 N.E.3d at 534 (citing Spangler v. State, 607
N.E.2d 720, 722-23 (Ind. 1993)). Any action to resist must be done with force
in order to violate the statute. Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013).
“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.” Id.
[11] Here, Officer Kellar located a vehicle that matched the description and license
plate of the one that was involved in the hit and run accident, where a vehicle
was reported as having hit an individual as well as several parked cars. Officer
Kellar saw a man, Yeckzee, exit the subject car and then shortly thereafter
return to it, and when Officer Kellar attempted to speak to Yeckzee, he ran.
Officer Kellar grabbed Yeckzee at the door to the townhome to stop him from
entering the residence. As Officer Kellar was “fighting and attempting to get
[Yeckzee] in custody,” Jimenez came out or reached out of the home and
injected himself into the physical altercation. Tr. at 24. Jimenez physically
pushed Officer Keller back, punched him in the chest, and shoved the door into
him; Officer Kellar described that Jimenez was trying to push Officer Kellar
away so that he could pull Yeckzee inside the home. During this time, Jimenez
was angry and was yelling in Spanish at Officer Kellar. Jimenez claims that he
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did not push Officer Keller and testified that he only tried to remove Officer
Kellar’s grasp on his son’s jacket. It is for the trial court to resolve conflicting
evidence. Jordan, 37 N.E.3d at 530 (appellate court does not assess witness
credibility). Jimenez’s conviction reflects that the trial court believed Officer
Kellar’s testimony that Jimenez applied force in attempting to shove Officer
Kellar away from Yeckzee, a suspect, and Officer Kellar had to exert force to
counteract this resistance. From the record before us, we find that the State
presented sufficient evidence that Jimenez forcibly interfered with Officer
Kellar’s lawful execution of his duties.
[12] Jimenez maintains that the evidence was not sufficient to convict him because
he mistakenly thought that Officer Kellar was a stranger who was attempting to
mug his son, and, therefore, due to a mistake of fact, any interference was not
knowing. Indiana Code section 35-41-3-7 provides: “It is a defense that the
person who engaged in the prohibited conduct was reasonably mistaken about a
matter of fact, if the mistake negates the culpability required for commission of
the offense.” When the State has made a prima facie case of guilt, the burden
shifts to the defendant to establish an evidentiary predicate for the defendant’s
alleged mistake of fact. Chavers v. State, 991 N.E.2d 148, 151 (Ind. Ct. App.
2013), trans. denied. The defendant must show three things to establish his
defense of mistake of fact: (1) the mistake was honest and reasonable; (2) the
mistake was about a matter of fact; and (3) the mistake negates the culpability
for the crime. Ind. Code § 35-41-3-7; Johnson v. State, 38 N.E.3d 686, 692 (Ind.
Ct. App. 2015). The State retains the ultimate burden of proving beyond a
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reasonable doubt every element of the charged crime, including culpability or
intent. Johnson, 38 N.E.3d at 692. The State may meet this burden with respect
to the mistake of fact defense in several ways, including (1) directly rebutting
the defendant’s evidence, (2) affirmatively showing that the defendant made no
such mistake, or (3) relying upon evidence from its case-in-chief. Id.
[13] Here, in explaining why he did not see the police markings on the person’s
clothing, Jimenez testified that the door was only open about a foot and that all
he could see was a hand and dark jacket. He did not testify about exterior
lighting, but said that the only light on in the home was one in the kitchen.
Officer Kellar, however, testified that the lighting on the doorstep of the home
was adequate for him to “get a good look at” both Yeckzee and Jimenez. Tr. at
45. From this evidence, the trier of fact could infer that the lighting in the area
was sufficient for Jimenez to see Officer Kellar, who was wearing a “full police
uniform,” which included a police badge, IMPD markings on the hat, a police
belt with the usual law enforcement tools, and large “Indianapolis Metro
Police” lettering on the jacket, as well as shoulder patches, if he was wearing a
jacket, as Jimenez testified that he was. Id. at 21, 34. Officer Kellar also
testified that he yelled “police” and “policia” multiple times, and Jimenez did
not immediately stop. Id. at 25, 34. We find that Officer Kellar’s testimony
was sufficient to rebut Jimenez’s defense of mistake of fact, and his assertion on
appeal that he did not know or recognize that Officer Kellar was a police officer
is a request for us to reweigh the evidence, which we cannot do. Johnson, 38
N.E.3d at 693. Considering the evidence favorable to the conviction, and in
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deference to the trial court’s assessment of witness credibility, we conclude that
the evidence was sufficient to support Jimenez’s conviction for Class A
misdemeanor resisting law enforcement.
[14] Affirmed.
[15] Mathias, J., and Brown, J., concur.
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