Courtney Glenn v. State of Indiana , 999 N.E.2d 859 ( 2013 )


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  • FOR PUBLICATION
    Oct 31 2013, 5:31 am
    ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:
    RUTH JOHNSON                                  GREGORY F. ZOELLER
    Marion County Public Defender Agency          Attorney General of Indiana
    CERTIFIED LEGAL INTERN                        BRIAN REITZ
    ERIC SOMMERS                                  Deputy Attorney General
    Indianapolis, Indiana                         Indianapolis, Indiana
    IN THE
    COURT OF APPEALS OF INDIANA
    COURTNEY GLENN,                               )
    )
    Appellant-Defendant,                    )
    )
    vs.                              )       No. 49A04-1302-CR-79
    )
    STATE OF INDIANA,                             )
    )
    Appellee-Plaintiff.                     )
    APPEAL FROM MARION SUPERIOR COURT
    The Honorable James B. Osborn, Judge
    Cause No. 49F15-1203-FD-20009
    October 31, 2013
    OPINION - FOR PUBLICATION
    MAY, Judge
    Courtney Glenn appeals her convictions of Class A misdemeanor resisting law
    enforcement1 and Class B misdemeanor disorderly conduct.2 She presents the following
    issues for our review:
    1.      Whether there was sufficient evidence to sustain Glenn’s convictions; and
    2.      Whether Glenn’s convictions subjected her to double jeopardy.
    We affirm.
    FACTS AND PROCEDURAL HISTORY
    On March 25, 2012, Glenn entered a K-Mart and placed three shirts in her purse. As
    Glenn left the store, a loss prevention officer detained her until police arrived. Responding
    Officer Gary Smith found Glenn uncooperative and argumentative. While being escorted
    from the store, Glenn refused to walk, aggressively attempted to pull free, and repeatedly
    shouted profanities at Officer Smith. On more than one occasion, Officer Smith used a leg
    sweep to regain control of Glenn. Outside the store, Glenn continued to argue loudly with
    Officer Smith and tried to move around. Officer Smith told Glenn multiple times to remain
    seated. While seated, Glenn freed one hand from the handcuffs, stood up, and swung the
    handcuffed hand at Officer Smith, causing the handcuff to swing within a few inches of the
    officer.
    The State charged Glenn with one count of Class D felony theft,3 one count of Class A
    misdemeanor resisting law enforcement, and two counts of Class B misdemeanor disorderly
    1
    
    Ind. Code § 35-44.1-3
    -1(a)(1).
    2
    
    Ind. Code § 35-45-1-3
    (a)(1).
    3
    
    Ind. Code § 35-43-4-2
    (a).
    2
    conduct. The State dismissed the theft charge and tried Glenn to the bench on the remaining
    charges. The court convicted Glenn of resisting law enforcement and one count of disorderly
    conduct. The trial court sentenced her to 365 days, with 359 days suspended and 365 days
    probation.
    DISCUSSION AND DECISION
    1.      Sufficiency of the Evidence
    Glenn contends the State did not present sufficient evidence to support her
    convictions. When we review sufficiency of evidence we do not reweigh evidence or assess
    witness credibility. Drane v. State, 
    867 N.E.2d 144
    , 146 (Ind. 2007). We consider only the
    probative evidence and reasonable inferences supporting the verdict. 
    Id.
     The evidence need
    not overcome every inference of innocence. 
    Id. at 147
    . Evidence is sufficient if it permits a
    reasonably drawn inference that supports the verdict. 
    Id.
     The conviction will be affirmed
    “unless no reasonable fact-finder could find the elements of the crime proven beyond a
    reasonable doubt.” 
    Id.
    a.     Resisting Law Enforcement
    Class A misdemeanor resisting law enforcement occurs when a person “knowingly or
    intentionally . . . forcibly resists, obstructs, or interferes with a law enforcement officer . . .
    lawfully engaged in the execution of the officer’s duties.” 
    Ind. Code § 35-44.1-3
    -1(a)(1).
    One forcibly resists when “strong, powerful, violent means are used to evade a law
    enforcement official’s rightful exercise of his or her duties.” Spangler v. State, 
    607 N.E.2d 720
    , 723 (Ind. 1993). Glenn contends her feet-dragging and multiple attempts to pull away
    3
    from Officer Smith were not forcible resistance. We disagree.
    In Spangler, a Sheriff’s deputy attempted to serve Spangler, at his place of
    employment, with a protective order issued against Spangler. Spangler refused to accept the
    papers, told the deputy not to bother him at work, and walked away. When Spangler
    continued to refuse to accept the documents or to comply with orders, the deputy arrested
    him for disorderly conduct. The State charged Spangler with resisting law enforcement, but
    the Court concluded Spangler did not act forcibly when no “strength, power, or violence”
    was used and no “movement or threatening gesture” was directed at the police officer. 
    Id. at 724
    .
    Glenn’s actions were not analogous to Spangler’s actions; rather, Glenn acted more
    like the defendant in Johnson v. State, 
    833 N.E.2d 516
     (Ind. Ct. App. 2005). A police officer
    twice asked Johnson to move his vehicle because it was blocking traffic. When Johnson
    refused, the officer activated his lights, stepped out of his cruiser, and approached Johnson’s
    driver side door. Johnson again refused to move his vehicle, and the officer placed him
    under arrest. While being searched following arrest, Johnson turned and pushed away with
    his shoulders while cursing and yelling. After being searched, Johnson refused to get into the
    transport vehicle and he “stiffened up” so the officers had to exert physical force to place him
    inside. 
    Id. at 517
    . We concluded Johnson acted “forcibly” and affirmed his conviction of
    resisting law enforcement. Id at 518.
    Glenn was convicted of resisting law enforcement after she refused to walk and, on
    more than one occasion, “aggressively” tried to pull away from Officer Smith. (Tr. at 7.) As
    4
    in Johnson, the resistance was forcible and there was ample evidence to support the
    conviction.
    b.     Disorderly Conduct
    “A person who recklessly, knowingly, or intentionally . . . engages in fighting or in
    tumultuous conduct” commits disorderly conduct. 
    Ind. Code § 35-45-1-3
    (a)(1). Conduct is
    “tumultuous” if it “results in, or is likely to result in, serious bodily injury to a person or
    substantial damage to property.” 
    Ind. Code § 35-45-1-1
    . Serious bodily injury occurs when
    an injury “creates a substantial risk of death or . . . causes: (1) serious permanent
    disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or
    impairment of the function of a bodily member or organ . . . .” 
    Ind. Code § 35-31.5-2
    -292.
    Glenn asserts none of her actions were likely to result in serious bodily injury. We disagree.
    Officer Smith testified Glenn freed one of her hands from the handcuffs, stood up,
    and then swung her handcuffed hand at him, bringing the handcuff within inches of him.
    Glenn contends she was merely showing Officer Smith the handcuff malfunction and had no
    intention of striking him. However, when evidence conflicts, as it does here, “we are bound
    to view only that evidence which is most favorable to the verdict and all reasonable
    inferences therefrom.” Bunting v. State, 
    731 N.E.2d 31
    , 33 (Ind. Ct. App. 2000), trans.
    denied. Viewing the evidence most favorable to the conviction, a reasonable fact-finder
    could conclude Glenn swung the handcuff at Officer Smith and serious bodily injury could
    have resulted therefrom. See, e.g., Bailey v. State, 
    907 N.E.2d 1003
    , 1007 (Ind. 2009)
    (affirming disorderly conduct conviction where a high school student threw down his drink,
    5
    clenched his fists, and cursed in the face of a school official). Finding otherwise would
    require us to weigh evidence and assess witness credibility, which we cannot do. See Drane,
    867 N.E.2d at 146 (appellate court will not reweigh evidence or judge witness credibility).
    2.     Double Jeopardy
    Article I, Section 14 of the Indiana Constitution provides in relevant part: “No person
    shall be put in jeopardy twice for the same offense.” Glenn asserts she was subjected to
    double jeopardy when she was convicted of both resisting law enforcement and disorderly
    conduct. She was not.
    Two offenses are the “same offense” in violation of Indiana’s Double Jeopardy Clause
    if, with respect to either the statutory elements of the challenged crimes or the actual
    evidence used to convict, the essential elements of one challenged offense also establish the
    essential elements of another challenged offense. Spivey v. State, 
    761 N.E.2d 831
    , 832 (Ind.
    2002). We review de novo whether a defendant’s convictions violate this provision. Spears
    v. State, 
    735 N.E.2d 1161
    , 1166 (Ind. 2000), reh’g denied.
    Glenn contends she was subjected to double jeopardy under the “actual evidence” test.
    To demonstrate two challenged offenses are the same under that test, a defendant must
    demonstrate a reasonable possibility the evidentiary facts used by the fact-finder to establish
    the essential elements of one offense may also have been used to establish the essential
    elements of a second challenged offense. 
    Id.
     We conduct our analysis by examining the
    evidence presented at trial to determine whether each challenged offense was established by
    separate and distinct facts. Richardson v. State, 
    717 N.E.2d 32
    , 53 (Ind. 1999). There is no
    6
    double jeopardy violation when the evidentiary facts establishing the essential elements of
    one offense establish only one or even several, but not all, of the elements of a second
    offense. Spivey, 761 N.E.2d at 833.
    To determine what facts were used to convict, we consider the evidence, charging
    information, final jury instructions, and arguments of counsel. Davis v. State, 
    770 N.E.2d 319
    , 324 (Ind. 2002), reh’g denied. To show Glenn resisted law enforcement, the State
    presented evidence Glenn tried several times to aggressively push away from Officer Smith.
    To show disorderly conduct, the State presented testimony that Glenn, while seated outside
    the store, broke free from her handcuffs and swung them at Officer Smith.
    To support her contention she was subjected to double jeopardy, Glenn notes the trial
    court did not fully explain which facts it relied on to support each conviction. This lack of
    clarity, Glenn asserts, implies a reasonable possibility the court based both convictions on
    identical facts. However, we assume the trial court, at a bench trial, followed the law and
    applied it correctly. M.T. v. State, 
    787 N.E.2d 509
    , 513 (Ind. Ct. App. 2003). There was a
    sufficient separate basis to convict Glenn of both resisting law enforcement and disorderly
    conduct. See, e.g., Bald v. State, 
    766 N.E.2d 1170
    , 1172 (Ind. 2002) (holding simultaneous
    convictions did not violate the state double jeopardy prohibition when each conviction rested
    on at least one unique evidentiary fact).
    CONCLUSION
    The State presented sufficient evidence to convict Glenn of resisting law enforcement
    and disorderly conduct, and Glenn has not demonstrated her convictions rested on identical
    7
    facts in violation of Indiana’s double jeopardy provision. Accordingly, we affirm.
    Affirmed.
    BAILEY, J., and BRADFORD, J., concur.
    8
    

Document Info

Docket Number: 49A04-1302-CR-79

Citation Numbers: 999 N.E.2d 859

Filed Date: 10/31/2013

Precedential Status: Precedential

Modified Date: 1/12/2023