Denney v. State

219 N.E.3d 784

William H. DENNEY, Appellant-Defendant,

v.STATE of Indiana, Appellee-Plaintiff

Court of Appeals Case No. 23A-CR-523

Court of Appeals of Indiana.

Filed October 5, 2023

Attorney for Appellant: R. Patrick Magrath, Alcorn Sage Schwartz & Magrath, LLP, Madison, Indiana

Attorneys for Appellee: Theodore E. Rokita, Attorney General, J.T. Whitehead, Deputy Attorney General, Amanda Martin-Nelson, Certified Legal Intern, Indianapolis, Indiana

Vaidik, Judge.

Case Summary

[1] William H. Denney appeals his convictions for Level 6 felony intimidation, Class A misdemeanor resisting law enforcement, Class B misdemeanor disorderly conduct, and Class B misdemeanor public intoxication, arguing the State failed to present sufficient evidence to support the convictions. We affirm his convictions for intimidation, disorderly conduct, and public intoxication but reverse the conviction for resisting law enforcement. The State charged Denney with forcible resistance, which our Supreme Court has held requires the use of strong, powerful, or violent means to evade law enforcement. Here, the State showed that Denney "pulled away" from a law enforcement officer before the officer could grab Denney's arm. This does not rise to the level of forcible resistance. Therefore, we affirm in part and reverse in part.

Facts and Procedural History

[2] The evidence most favorable to Denney's convictions is as follows. On July 27, 2019, security guards and Indiana Gaming Commission (IGC) agents at Belterra Casino Resort received an alert that Denney was being disruptive and threatening others in the lobby bar. When security supervisor Paul Hammond and two other guards arrived at the bar, they heard Denney arguing with another patron, causing a disturbance. Hammond noticed Denney was showing signs of intoxication, so he tried to persuade him to go to a room in the casino hotel to sleep it off, but Denney would not cooperate. IGC Agents Brian Pennock and Steve Faulkner also responded to the bar, but Belterra's policy was for security guards to try to resolve an incident before calling in IGC, so the agents initially stood back and observed Denney arguing with Hammond. As the situation escalated, food and beverage vendors asked security to remove Denney from the bar. Denney walked out of the bar yelling profanities, and the security guards and agents followed him out to the casino pavilion.

[3] Denney was upset and making noise in the pavilion, so the security guards again attempted to get him to go to a hotel room. He said he would leave the casino and walked away toward the parking garage, still yelling expletives and causing a scene. Concerned Denney would drive in his intoxicated state, the security guards and IGC agents followed him to the garage, maintaining a distance because he was being belligerent and threatening them. Security found Denney sitting down, hiding between two cars. As Hammond kept trying to persuade Denney to go to a room, Denney yelled that he was "going to f*ck [Hammond] up." Tr. p. 8. Seeing this as a threat to Hammond, Agent Pennock intervened and offered to escort Denney to a room, but Denney refused and yelled, "[Y]ou don't know who you are f*cking with." Id. Agent Pennock warned Denney to calm down, but Denney stood and said "f*ck you I'm not going to that h*ll hole, I'm leaving." Id. at 9. Denney started to move away, and Agent Pennock informed him he was under arrest for public intoxication. As he reached for Denney's arms, Denney lifted them up and "pulled away," so Agent Pennock "wasn't able to get ahold of [him] at that point." Id. at 25-26. Agent Faulkner stepped in to assist Agent Pennock, and they managed to get ahold of Denney. While in the agents’ grasps, Denney was "tightening up," but he stopped once they got him on the ground. Id. at 25. The agents handcuffed him and walked him to the IGC office.

[4] Denney was uncooperative in the office and told Agents Pennock and Faulkner they were "f*cking with the wrong person." Id. at 11. He gave them "some opportunities to remove his cuffs and to let him go," and after the agents advised him they would not do so, Denney threatened them and their families. Id. He said he knew members of "chapters," meaning motorcycle gangs, and that "[the agents’] wives, mothers and children would be done." Id. Agent Pennock called the Switzerland County Sheriff's Department to pick up Denney from Belterra, and deputies transported Denney to the county jail.

[5] The State charged Denney with Level 6 felony intimidation, Class A misdemeanor resisting law enforcement, Class B misdemeanor disorderly conduct, and Class B misdemeanor public intoxication. At the bench trial, Denney testified in his own defense. He claimed he was not being derogatory in the casino bar and didn't say anything to the other patrons. His theory was that someone had "slipped something into [his] drink" as part of a plan to rob him, but "their plan got foiled. And that's why they ... said that [Denney] was being belligerent[.]" Tr. p. 60. In support of this theory, Denney testified that he did not take any drugs on the night of the incident and had never acted the way he did that night while intoxicated from alcohol. He said the guards at the jail told him they'd never seen that kind of behavior from alcohol and "they thought there was a little bit more than alcohol." Id. at 58. Denney also claimed he went to the parking garage because security asked him to leave the casino, and he told them he would wait in the garage for his mom and sister to pick him up rather than driving himself. As to the events in the IGC office, Denney alleged the agents were "mocking [him], making fun of [him] because [he] had long hair and [he] looked like a gang member." Id. at 61. He admitted that he "played along with that," but that he doesn't actually know anybody in a gang or have any gang affiliation. Id.

[6] The trial court found Denney guilty on all counts and sentenced him to concurrent terms of eighteen months for intimidation, one year for resisting law enforcement, six months for disorderly conduct, and six months for public intoxication. The court suspended all but 120 days, which Denney was ordered to serve on home detention.

[7] Denney now appeals.

Discussion and Decision

[8] Denney contends the evidence is insufficient to sustain his convictions. When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence nor judge witness credibility. Willis v. State , 27 N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from it. Id. We will affirm a conviction if there is substantial evidence of probative value to support each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.

I. Intimidation

[9] To convict Denney of Level 6 felony intimidation as charged here, the State had to prove he communicated a threat to law-enforcement officers, namely IGC Agents Pennock and Faulkner, with the intent that they engage in conduct against their will while "fulfilling their law enforcement duties and responsibilities of arrest." Appellant's App. Vol. II p. 31.¹ Denney claims there is no evidence that he threatened the agents with the requisite intent. But Agent Pennock testified that Denney asked them multiple times "to remove his cuffs and to let him go ... [a]nd when [they] didn't do that, he then made a comment that he knows three (3) chapters and that [the agents’] wives, mothers and children would be done." Tr. p. 11. This testimony supports a reasonable inference that Denney threatened the agents with the intent that they release him from custody after they initially refused to do so. The evidence is sufficient to sustain Denney's intimidation conviction.

II. Resisting Law Enforcement

[10] To convict Denney of resisting law enforcement as charged, the State had to prove he knowingly or intentionally forcibly resisted, obstructed, or interfered with Agents Pennock and Faulkner while they were lawfully executing their duties. I.C. § 35-44.1-3-1(a)(1) ; Appellant's App. Vol. II p. 12. Denney contends his acts of "turn[ing] to leave," "pull[ing] away" when Agent Pennock "tried to grab Denney's arm and missed," and "tighten[ing] up" when the agents had him on the ground did not constitute forcible resistance. Appellant's Br. p. 11. We agree. A person 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.’ " Walker v. State , 998 N.E.2d 724, 726-27 (Ind. 2013) (quoting Spangler v. State , 607 N.E.2d 720, 723 (Ind. 1993) ). Even a modest exertion of strength, power, or violence may satisfy this element, id. at 727, but our Supreme Court has held that merely walking away from law enforcement, Spangler , 607 N.E.2d at 724, refusing to present arms for handcuffing, Graham v. State , 903 N.E.2d 963, 966 (Ind. 2009), or turning and pulling away from an officer's grasp, K.W. v. State , 984 N.E.2d 610, 611 (Ind. 2013), do not rise to the level of forcible resistance. See also, e.g. , Runnells v. State , 186 N.E.3d 1181, 1185 (Ind. Ct. App. 2022) ("pulling away from [the officer's] grasp"); Brooks v. State , 113 N.E.3d 782, 785 (Ind. Ct. App. 2018) ("tensing up and pulling away" as officers tried to handcuff her).

[11] The State likens this case to Johnson v. State , 833 N.E.2d 516 (Ind. Ct. App. 2005). There, we found Johnson forcibly resisted by pushing away with his shoulders as officers were searching him and stiffening up as they grabbed him to put him into the transport vehicle. But unlike Johnson, Denney did not push away from the agents, and he "pulled away" from Agent Pennock without making any contact with him.² Because the State failed to prove Denney acted forcibly, the evidence is insufficient to sustain his conviction for resisting law enforcement.

III. ...