FILED
MEMORANDUM DECISION May 19 2016, 8:02 am
CLERK
Pursuant to Ind. Appellate Rule 65(D), Indiana Supreme Court
Court of Appeals
and Tax Court
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
Suzy St. John Gregory F. Zoeller
Ruth Ann Johnson Attorney General of Indiana
Marion County Public Defender’s Office
Brian Reitz
Indianapolis, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Rodney Tyms, May 19, 2016
Appellant-Defendant, Court of Appeals Case No.
49A04-1509-CR-1484
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Annie Christ-
Appellee-Plaintiff. Garcia, Judge
Trial Court Cause No.
49F24-1307-FD-44986
Pyle, Judge.
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Statement of the Case
[1] Rodney Tyms (“Tyms”) appeals his convictions of two counts of resisting law
enforcement as Class A misdemeanors.1 He argues that there is insufficient
evidence to support his convictions because the State failed to prove that he
forcibly resisted law enforcement officers. Finding sufficient evidence of
forcible resistance, we affirm.
[2] We affirm.
Issue
Whether there is sufficient evidence to support Tyms’ convictions
for resisting law enforcement.
Facts
[3] At approximately 3:45 a.m. on July 10, 2013, Indianapolis Metropolitan Police
Department (“IMPD”) Officer Shelia McNeal (“Officer McNeal”) initiated a
traffic stop of Tyms when she saw him change lanes without signaling. IMPD
Sergeant Steven Rivers (“Sergeant Rivers”) stopped to assist Officer McNeal.
As Sergeant Rivers exited his car, he observed Tyms “literally hanging entirely
his upper torso [and arms] outside of his vehicle yelling profanities. . . .” (Tr.
64). Tyms yelled that the officers had no right to stop him because he had
“diplomatic immunity.” (Tr. 64-65). Sergeant Rivers was concerned because
1
IND. CODE § 35-44.1-3-1.
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“to immediately start yelling and screaming at officers and hanging half out of
your vehicle is very abnormal behavior . . . .” (Tr. 65).
[4] Sergeant Rivers and Officer McNeal approached Tyms’ vehicle. When Officer
McNeal asked Tyms for his license, Tyms gave her a “Moorish National
International Road Travel” card. (State’s Ex. 6). When the officer asked Tyms
for his vehicle registration, Tyms continued to yell profanities and “came
halfway back out of the car.” (Tr. 70). Sergeant Rivers noticed that Tyms was
leaning out of his car with his right hand and his left hand was “stuffed down
between the driver’s seat and the driver’s door inside of the vehicle.” (Tr. 71).
Concerned that Tyms was reaching for a weapon, the sergeant ordered Tyms to
show his hands multiple times. Tyms refused to comply with the sergeant’s
orders.
[5] Sergeant Rivers pulled out his Taser, pointed it at Tyms, and told him to show
his hands and step out of the vehicle or be tased. Tyms refused to show his
hands and continued to yell that he had “diplomatic immunity.” (Tr. 73).
Sergeant Rivers attempted to open the door to Tyms’ vehicle, but Tyms pulled
it closed. As the two men struggled, Tyms leaned back and reached for the
center console. Concerned that Tyms was reaching for a weapon, Sergeant
Rivers tased Tyms. The Taser had a cartridge that shot two probes and
delivered a five-second electrical shock to Tyms. Officer McNeal and Sergeant
Rivers pulled Tyms out of his vehicle and placed him face down on the ground.
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[6] As soon as the electrical shock wore off, Tyms kicked, screamed, and pulled his
hands underneath him. Officer McNeal and Sergeant Rivers ordered Tyms to
give them his hands and arms, but Tyms kept “his hands clinched up under
him.” (Tr. 39). The officers attempted to pull Tyms’ arms out but were unable
to do so even though Officer McNeal kneed Tyms in the leg and Sergeant
Rivers hit him on the shoulder with a closed fist. Sergeant Rivers eventually
tased Tyms a second and a third time, but he and Officer McNeal were still
unable to grab Tyms’ hands. It was not until a third IMPD officer arrived at the
scene that the three officers together were able to grab Tyms’ hands and
handcuff him.
[7] Tyms was convicted by jury of two counts of Class A misdemeanor resisting
law enforcement, one count each for resisting Officer McNeal and Sergeant
Rivers. He now appeals both convictions.
Decision
[8] Tyms argues that there is insufficient evidence to sustain his convictions.
When reviewing sufficiency of the evidence claims, we neither reweigh the
evidence nor judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065,
1066 (Ind. 2015). We only consider the evidence supporting the judgment and
any reasonable inferences that can be drawn from the evidence. Id. We will
affirm a conviction if there is substantial evidence of probative value supporting
each element of the offense such that a reasonable trier of fact could have found
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the defendant guilty beyond a reasonable doubt. Id. Finally, we consider
conflicting evidence most favorably to the trial court’s ruling. Id. at 1066-67.
[9] In order to convict Tyms of resisting law enforcement as a Class A
misdemeanor, the State had to prove beyond a reasonable doubt that he
knowingly or intentionally forcibly resisted, obstructed, or interfered with
Officer McNeal and Sergeant Rivers while they were lawfully engaged in the
execution of their duties. See I.C. § 35-44.1-3-1(a)(1). Tyms contends that
“keeping his hands tucked underneath his body and refusing to present them for
cuffing is passive resistance, which will not suffice for a conviction.” (Tyms’
Br. 12).
[10] A person forcibly resists, obstructs, or interferes with a police officer when he
uses strong, powerful, violent means to impede an officer in the lawful
execution of his duties. Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013). An
overwhelming or extreme level of force is not required. Id. Forcible resistance
may be satisfied with even a modest exertion of strength, power, or violence.
Id. Physical contact is not even required. Id. A threatening gesture may be
sufficient to constitute forcible resistance. Id. In Lopez v. State, 926 N.E.2d
1090, 1094 (Ind. Ct. App. 2010), trans. denied, this Court held that it was
reasonable to infer forcible resistance where “the officers were unable to pull
[the defendant’s] arms out from under him.”
[11] Here, Officer McNeal and Sergeant Rivers testified that they were unable to
pull Tyms’ hands out from under him. It was not until a third officer arrived at
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the scene that the three officers together were able to grab Tyms’ hands and
handcuff him. As in Lopez, this is sufficient evidence to support the inference
that Tyms used force in preventing Officer McNeal and Sergeant Rivers from
handcuffing him. This evidence supports each element of the offense such that
a reasonable trier of fact could have found Tyms guilty beyond a reasonable
doubt. We therefore affirm Tyms’ convictions for resisting law enforcement. 2
[12] Affirmed.
Kirsch, J., and Riley, J., concur.
2
Tyms also argues that there is insufficient evidence to support his conviction because his struggle with
Officer McNeal and Sergeant Rivers was “involuntary bodily activity” after being tased. (Tyms’ Br. 8). This
argument is an invitation for us to we reweigh the evidence, which we cannot do. See Willis, 27 N.E.3d at
1066.
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