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Tuesday, September 29, 2009
Ind. Decisions - Another NFP COA decision reclassified
The case is Edwin Berberena v. State of Indiana (49A02-0901-CR-87 ) - 2-1 NFP opinion issued 7/23/09; Appellant's motion to publish 8/24/09; Appellee's motion for rehearing 8/24/09; Appellee's petition for rehearing denied 9/24/09; Appellant's motion to publish granted 9/25/09.
From the opinion:
Edwin Berberena appeals his conviction for Resisting Law Enforcement, as a Class A misdemeanor, following a bench trial. He presents a single issue for our review, namely, whether the State presented sufficient evidence to support his conviction. * * *As our Supreme Court held in Graham, "[i]t is error as a matter of law to conclude . . . that 'forcibly resists' includes all actions that are not passive." 903 N.E.2d at 965. In sum, force is an element of the offense, id., but there is simply no evidence of force. We hold that the evidence is insufficient to support Barbarena's resisting law enforcement conviction.
Posted by Marcia Oddi on September 29, 2009 09:54 AM
Posted to Ind. App.Ct. Decisions