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Pursuant to Ind. Appellate Rule 65(D), 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.

FILED
Sep 09 2011, 8:51 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: CHRIS P. FRAZIER Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
MICHAEL SMITH, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-1011-CR-1268

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Kimberly J. Brown, Judge The Honorable Teresa A. Hall, Master Commissioner Cause No. 49G16-0909-FD-83939

September 9, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION

DARDEN, Judge

STATEMENT OF THE CASE Michael Smith appeals his conviction for resisting law enforcement as a class D felony.1 We affirm. ISSUE Whether the trial court abused its discretion in refusing Smiths tendered jury instructions. FACTS On September 25, 2009, Smith picked up his then-girlfriend, Karla Tolbert, at her parents house and took her to his house, where they spent the night. The following

morning, Smith took Tolberts cell phone from her and started "going through [Tolberts] phone." (Tr. 65). Despite Tolberts repeated demands, Smith refused to give the phone back to her. Tolbert therefore took a cup of coffee and "acted like [she] was going to throw it on [Smith], but [she] didnt." (Tr. 67). An angry Smith grabbed Tolbert around the arms and told her she was ",,going to clean this fucking shit up." (Tr. 67-68). Smith then "flung [Tolbert] onto the bed," straddled her, and yelled at her. (Tr. 68). Tolbert told him to get off her and let her go home. Instead, Smith took Tolberts glasses off and tried

1

Ind. Code

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