Eric S. Birchler, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

[1] Eric S. Birchler challenges the sufficiency of the evidence supporting his Class A misdemeanor criminal trespass and resisting law enforcement convictions.

[2] We affirm.

Facts and Procedural History

[3] The facts of this case stem from Birchler's refusal to wear a mask at a doctor's office. Specifically, on November 21, 2024, at approximately 8:15 a.m., Birchler arrived at Santa Claus Family Medicine and told receptionist Nichole Chase that he would like to see a doctor for his cough and congestion. Birchler, who, again, was not wearing a mask, believed that he had bronchitis. He did not have a scheduled appointment. Chase informed Birchler that they had no appointments available that day and offered to schedule an appointment for a later date. Chase also suggested that Birchler could seek an appointment at an urgent care facility.

[4] Birchler informed Chase that “Deb would see him.” Tr. Vol. 2, p. 247. Deb was a nurse practitioner in the practice. Chase responded, “not without an appointment she won't, and [Birchler] would have to put a mask on.” Id. at 247. Birchler said he was going to wait and sat down in the waiting area. Chase asked Deb if she could fit Birchler into her schedule. Deb replied that she could but that he would have to wear a mask. Chase informed Birchler that he needed to put on a mask, but he refused to do so. Id. at 248. However, he indicated he would be willing to wear a mask during the exam. Tr. Vol. 3, p. 27. Birchler continued to sit unmasked in the waiting area, and Chase notified her manager that Birchler was refusing to wear a mask. A poster displayed in the lobby requested individuals to “wear a mask if you have a cough and fever.” Ex. Vol. p. 3. A second poster stated that individuals who failed to respond to staff instructions related to safety could be removed from the facility and/or subject to prosecution. Ex. Vol. p. 4.

[5] Chase asked Birchler to put a mask on three or four times over the course of the next hour and a half to two hours. Birchler refused every time but continued to sit in the waiting room. Chase spoke to Deb about Birchler's continued presence in the waiting room. Deb advised Chase to let Birchler know that she would squeeze him in to be seen but he would have to put on a mask. Tr. Vol. 3, p. 5. Once again, Birchler refused to put on a mask, and, therefore, Chase decided to call the police for assistance with removing Birchler from the building. While Chase called the police, Birchler attempted to open the sliding window in the glass partition in front of Chase's desk. A nurse held the window closed while Chase was on the phone. Id. at 7. The nurse, Rhegann Messmer, told Birchler that he could leave or wait for the police to arrive to escort him out of the building. Id. at 94, 96.

[6] Birchler continued to pace near the reception desk until police officers arrived. Chase told Birchler that he needed to leave and he would not be seen that day. When the police arrived shortly after 10:00 a.m., Birchler returned to a chair in the lobby and sat down. Police officers advised Birchler multiple times to exit the facility but Birchler refused to leave the building.

[7] The officers decided to arrest Birchler for criminal trespass and eventually Birchler walked out of the facility accompanied by the officers. Officers Beau Anderson and Robert Bone then attempted to place Birchler in handcuffs but Birchler refused to put his right arm behind his back. “He curled it up and forcefully held it in his chest area.” Id. at 125. Officer Anderson noted that it “took a lot of exertion to get his [right] arm back ․” Id. While the officers were trying to place Birchler in handcuffs, a “scuffle” ensued, and the officers and Birchler “end[ed] up on the ground ․” Id. at 154; see also Tr. Vol. 3, p. 222; State's Ex. 6.

[8] The State charged Birchler with three counts of Class A misdemeanor resisting law enforcement, each count naming one of the three officers involved in his arrest; Class A misdemeanor criminal trespass; and Class B misdemeanor criminal mischief. His jury trial commenced on October 23, 2025. The jury returned guilty verdicts for two counts of resisting law enforcement naming Officers Anderson and Bone and for criminal trespass. The jury found Birchler not guilty of resisting law enforcement as charged in Count Three and not guilty of criminal mischief. Thereafter, the court ordered Birchler to serve an aggregate 347-day sentence with 18 days to be served in the Spencer County Law Enforcement Facility and 329 days suspended to probation.

[9] Birchler now appeals.

Standard of Review

[10] For challenges to the sufficiency of the evidence, we consider only the probative evidence and the reasonable inferences therefrom that support the judgment of the trier of fact. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will neither reweigh the evidence nor judge witness credibility. Id. We will affirm a conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

Sufficient evidence supports Birchler's resisting law enforcement convictions.

[11] Birchler argues that the State failed to prove that he forcibly resisted arrest. Indiana Code section 35-44.1-3-1(a) provides in relevant part that a “person who knowingly or intentionally ․ forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of the officer's duties ․ commits resisting law enforcement, a Class A misdemeanor ․” See also Appellant's App. Vol. 2, p. 87.

[12] Cases examining whether a person forcibly resisted are “necessarily fact-sensitive” with different cases often presenting “facts varying only by slight degrees.” Walker v. State, 998 N.E.2d 724, 727 (Ind. 2013). While “the statute does not demand complete passivity,” the “force involved need not rise to the level of mayhem,” and even a “modest level of resistance” might support the offense. K.W. v. State, 984 N.E.2d 610, 612 (Ind. 2013); Graham v. State, 903 N.E.2d 963, 965, 966 (Ind. 2009).

[13] For example, in Spangler v. State, 607 N.E.2d 720, 721 (Ind. 1993), a sheriff's deputy attempted to serve the defendant with process, but the defendant turned and walked away. The deputy told him to “come back here[,]” but Spangler stopped only long enough to say, “I'm not going to take those papers here, don't bother me.” Id. at 722. The Court reasoned that, from those facts,

[no] reasonable trier of fact could conclude with the required level of certainty that [the defendant] acted forcibly[.] ․ There was no strength, power, or violence directed towards the law enforcement official. There was no movement or threatening gesture made in the direction of the official ․[T]here is no evidence of any “forcible” actions that the charged crime prohibits.

Id. at 724-25. In K.W., the Court concluded that K.W. had not forcibly resisted when he “turned[ and] pulled away” when an officer grabbed his wrist for handcuffing. 984 N.E.2d at 612-13. See also Macy v. State, 9 N.E.3d 249, 252 (Ind. Ct. App. 2014) (citing Spangler, 607 N.E.2d at 724-25) (observing that “forcible resistance is conduct directed toward an officer and must be ‘something more than mere action’ ”)).

[14] Our Supreme Court has held that simply refusing to present arms for handcuffing is not forcible resistance. See Graham, 903 N.E.2d at 966. However, the Graham Court observed that “ ‘stiffening’ ․ one's arms when an officer grabs hold to position them for cuffing” may be forcible resistance. 903 N.E.2d at 966. Comparing the later K.W. holding to the court's observation in Graham, our court has observed that “the ‘stiffening’ statement in Graham: (1) was not necessary to the Court's decision; (2) is difficult to square with the Court's subsequent holding in K.W.; and (3) appears at odds with other statements made by the Court over the years.” Runnells v. State, 186 N.E.3d 1181, 1185 (Ind. Ct. App. 2022) (citing Spangler, 607 N.E.2d at 724; Snow v. State, 77 N.E.3d 173, 177-78 (Ind. 2017) (reasoning that aggression is an element of resisting law enforcement)).

[15] Recently, in McNary v. State, 269 N.E.3d 1245, 1250 (Ind. Ct. App. 2025), trans. denied, our court reversed a resisting law enforcement conviction after concluding that the State had failed to prove that McNary forcibly resisted. In that case, the State presented evidence that, after McNary ignored the officer's instructions to place her hands behind her back, the officer grabbed her left wrist and elbow. The officer then pulled McNary away from her bedroom wall and handcuffed her hands behind her back. Id. at 1247. At trial, the officer testified that McNary “ ‘was pulling against’ ” the officer “ ‘trying to force her hand away from’ ” the officer “ ‘until [he] was able to place her hand behind her back ․’ ” Id. at 1247-48 (record citation omitted). Our court disagreed with “the State's assertion that McNary forcibly resisted when she ‘pull[ed] against’ the arresting officer's hand as he maneuvered her hands behind her back.” Id. at 1250 (record citation omitted). The panel noted that “the officer's body camera shows that though [McNary] did not voluntarily place her arms behind her back, any resistance she exerted against the officer merely required him to force her to comply with his commands but did not amount to forcible resistance.” Id.

[16] Our court has observed that “each case affirming a conviction of forcible resistance seems to involve, at a minimum, some physical interaction with a law enforcement officer.” Macy, 9 N.E.3d at 253. Likewise, in cases involving defendants attempting to pull away from officers while the officers are trying to effectuate an arrest, the forcible element was often “satisfied by the fact that the defendant committed violent actions while the officers attempted to establish control.” McNary, 269 N.E.3d at 1250.

[17] A body camera recording of Birchler's arrest was admitted into evidence as State's Exhibit 6. The recording shows that, when Officers Bone and Anderson attempted to place Birchler in handcuffs, he held his right arm tightly to his chest and twisted his body away from the officers. To gain control of Birchler, the officer had to take Birchler to the ground. Birchler tucked his right arm close to his body to prevent the officers from pulling his arm behind his back. Officer Bone had to put his knee near Birchler's shoulder blade to keep Birchler from escaping the officer's hold on him. Another officer placed his thigh along Birchler's back to stop Birchler from rolling over and standing up.

[18] This evidence established that Birchler forcibly resisted the officers’ attempts to place him in handcuffs to effectuate an arrest. Unlike the defendants in K.W. and McNary, three officers had to physically respond to control Birchler while he exerted force against them. After reviewing the video evidence, we conclude that the State presented sufficient evidence that Birchler forcibly resisted arrest.

Sufficient evidence supports Birchler's criminal trespass conviction.

[19] To sustain a conviction for Class A misdemeanor criminal trespass, the State was required to prove, in relevant part, that Birchler, “not having a contractual interest in the property, knowingly or intentionally refuses to leave the real property of another person after having been asked to leave by the other person, that person's agent, or a law enforcement officer acting on behalf of the other person or that person's agent ․” Ind. Code § 35-43-2-2(b)(2); see also Appellant's App. Vol. 2, p. 88. Moreover,

An act of criminal trespass requires a mens rea of at least knowingly; “[a] person engages in conduct ‘knowingly’ if, when he engages in conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35–41–2–2(b). As such, if a person has a fair and reasonable foundation for believing that he or she has a right to be present on the property, there is no criminal trespass. See Olsen v. State, 663 N.E.2d 1194, 1196 (Ind. Ct. App. 1996).

Curtis v. State, 58 N.E.3d 992, 994 (Ind. Ct. App. 2016).

[20] The State proved that Birchler did not have a contractual interest in Santa Claus Family Medicine or its facility. Birchler was asked to leave the property by both the receptionist, Chase, and a nurse, Messmer. As adult employees of Santa Claus Family Medicine, both Chase and Messmer were agents of the medical practice.¹ See Ind. Code § 35-31.5-2-12 (defining “agent” in part as “an adult employee”).

[21] Birchler claims that he “was not unambiguously told to leave” the medical practice. Reply Br. at 5. Birchler did not have an appointment when he arrived at Santa Claus Family Medicine. However, a nurse practitioner agreed to fit him into her morning schedule but stated that Birchler would need to wear a mask. Birchler argued with Chase and Messmer about the need to wear a mask after claiming that he was not contagious. He agreed to wear a mask in the exam room but refused to wear a mask in the lobby. Chase told Birchler that the nurse practitioner would not see him until he put on a mask. As Birchler continued to refuse to wear a mask for over an hour and after Chase had called the police for assistance with Birchler's continued presence in the lobby, Chase unequivocally told Birchler to leave and that he would not be seen by the nurse practitioner that day. Tr. Vol. 3, p. 22. Messmer also told him to leave or the police would escort him out when they arrived. Id. at 94; see also State's Ex. 4 (audio recording). When the law enforcement officers arrived, Birchler initially refused to leave the lobby of the building despite the officers’ directives to do so. Tr. Vol. 3, p. 125; State's Ex. 6.

[22] From this evidence, the State proved that Birchler knowingly refused to leave the medical practice after he was repeatedly asked to do so. After Chase told him to leave, told him that he would not be seen by the nurse practitioner that day, and called the police, Birchler no longer had a reasonable belief that he had a right to be present on the property.

[23] Contrary to Birchler's claim in his brief, the fact that he was not arrested until he was escorted to the facility's parking lot by police officers is not relevant to this analysis. See Appellant's Br. at 17-18. We are also not persuaded by Birchler's argument that Messmer's statement to him was an invitation to wait in the lobby to discuss the matter with the responding police officers. Id. at 18. When Messmer made the statement that he could leave or wait in the lobby for the police to escort him from the building, Birchler did not have a reasonable belief that he continued to have a right to be present on the property.

[24] For all of these reasons, we conclude that the State presented sufficient evidence to support Birchler's criminal trespass conviction.

Conclusion

[25] The State presented sufficient evidence to support Birchler's convictions, and his arguments to the contrary are merely requests for our court to reweigh the evidence and the credibility of the witnesses. We therefore affirm Birchler's resisting law enforcement and criminal trespass convictions.

[26] Affirmed.

FOOTNOTES

1.   In his reply brief, Birchler argues that the State failed to prove that Chase and Messmer were adults. Both women testified in front of the jury. Chase testified that she has been working with the public for over twenty years. Tr. Vol. 3, p. 42. It was also reasonable for the jury to assume that Messmer was over the age of eighteen because as a nurse, she would have had to obtain a college degree.

Mathias, Judge.

Kenworthy, J., and DeBoer, J., concur.