¶1dissenting.
¶2I respectfully dissent from the majority's conclusion that Edwin Berberena's actions did not constitute forcible resistance.
¶3In my view, the evidence meets the definition of "forcible" resistance espoused most recently by our Supreme Court in Graham v. State, 903 N.E.2d 963, 965-66 (Ind.2009). In Graham, our Supreme Court concluded that a defendant's refusal to present his arms for cuffing did not constitute forcible resistance but emphasized that even a modest level of resistance meets the requirement of the resisting law enforcement statute: "[EJven 'stiffening' of one's arms when an officer grabs hold to position them for cuffing would suffice. ..." 903 N.E.2d at 966.
¶4Here, the record establishes that Ber-berena "struggle[d]" with Officer Amber-ger when the officer tried to place him in handcuffs. Tr. p. 10. The majority concludes that the evidence is insufficient that Berberena used any force during his interaction with Officer Amberger, but Officer Amberger's testimony that he and Ber-berena struggled with each other is evidence enough. The plain and ordinary definition of "struggle" is "to make violent, strenuous, labored, or convulsive exertions or efforts against difficult or forceful opposition or impeding or constraining cireum-stances." Webster's Third New International Dictionary Unabridged 2267 (1993). Thus, Officer Amberger's testimony that Berberena's actions engaged him in a struggle implies forceful opposition by Berberena rather than passive resistance. In my view, the majority has simply reweighed the evidence, which we are not permitted to do. I would conclude that the evidence is sufficient to support Ber-berena's conviction, and I would affirm.
¶5ORDER
¶6Appellant Edwin Berberena, by counsel, has filed a Motion to Publish.
¶7Having reviewed the matter, the Court FINDS AND ORDERS AS FOLLOWS:
¶81. Appellant's Motion to Publish is GRANTED, and this Court's opinion handed down in this cause on July 23, 2009, marked Memorandum Decision, Not for Publication, is now ORDERED PUBLISHED.