Fields v. StateFields v. State
- Reporters:
- ,
- Before:
- Robertson
Lead Opinion
The issues raised by the defendant-appellant Fields question the sufficiency of the evidence to supрort his conviction of interfering with a police officer, assault and battery, and disorderly conduct, and, whether it was proper to sentence him on all three crimes which, purportedly, arose from a single set of operative facts.
We find no reversible error.
A summary of facts favorable to the State shows that Fields went to the Bob Davis Garage to retrieve his trailer. Gary Davis, a co-owner of the garage, informed Fields that he could have the trailer upon payment of towing and storage fees. When he argued with Gary about thе charge, Fields was advised to discuss the matter with Gary’s father, Bob Davis, the other garage co-owner. Fields argued further and then left, walking towards Rushville. Fields then returned to the garage in his truck, hitched the unlicensed trailer to the truck and left, striking a parked vehicle on his way out. Gary Davis called the Rush-ville police. Rushville Officer Isgrigg responded, and, when informed of the situation, Isgrigg told Davis he would have to call the Sheriff because the garage was not in the city. Fields, sans trailer, returned once again and began loudly cursing Da^is and Isgrigg. Isgrigg attempted to calm Fields but was unsuccessful. Fields again departed.
Sheriff Hedrick arrived at the garage and wаs advised of the series of events. Hedrick and Gary Davis went to Rushville and finally located Fields’s truck and trailеr parked behind a building. Hedrick told Davis to get his truck and tow the trailer back to the garage. Davis was starting bаck to the garage when Fields appeared and reacted by cursing and yelling. Hedrick attemptеd to reason with Fields and calm him down for about 20 to 25 minutes. Fields reacted by jumping in the truck and then climbing onto thе trailer and jumping up and down, all the while cursing and yelling at Hedrick and Davis. During this period, people came out of nearby business places because of the commotion. Fields’s profane language could be heard and distinctly understood from at least 200 feet away. Fields refused to quiet down or to move away from the vehicle. Fields also shoved Hedrick several times during the tirade.
At this point Hedrick told Fields hе was under arrest for disorderly conduct. Fields refused to enter the police car and resisted to thе extent that it took three policemen to handcuff him and place him in the police car.
We initially note that upon a claim of insufficiency of the evidence we will neither weigh the evidence nor judge the credibility of the witnesses and will look to the evidence most favorable to the State аnd the inferences which may reasonably flow therefrom. Foster v. State, (1977) Ind., 367 N.E.2d 1088.
Fields first argues that the crime of interfering with a pоlice officer (Ind.Code 35-21-11-1) requires proof that the officer *1129be engaged in the scope of his official duties as an essential element of the offense. It is argued that Sheriff Hedrick was attempting to rеsolve a civil dispute and therefore was acting beyond the scope of his official duties during the sеries of events recounted above. However, we believe it equally appropriate thаt the trier of fact heard evidence which leads to the conclusion that the Sheriff was investigating the оperation of a unlicensed vehicle upon a public highway and a hit and run accident, hoth being illеgal activities, and activities which we believe show Fields’s argument to not be well-founded.
Fields next argues insufficient evidence to prove Fields unlawfully touched the Sheriff in a rude, insolent, and angry manner, as required fоr an assault and battery (IC 35-1-54-4), and that Fields acted in a loud, boisterous or disorderly manner so as to disturb the pеace and quiet of the 1000 block of West 2nd Street in Rushville by cursing and fighting as required for disorderly conduct (IC 35-27-2-1). We believe our previous recital of the evidence negates Fields’s argument in this regard.
The issue is obfuscated somewhat in that Fields’s appellate argument contains a theory that Fields’s conduct should be cоndoned by his right to protect his property, and, therefore, there exists an insufficiency of the evidence to convict on the offenses charged. A review of the record leads us to the conclusion that the defense of property theory makes its initial manifestation in this appellate court. Whilе it is true that a sufficiency of the evidence issue can be first raised in this court (McGowan v. State, [1977] Ind., 366 N.E.2d 1164), we do not believe the same is true of a defense. Defense of property, not unlike self-defense, is an issue which could have been properly raised by the defendant at trial. See generally Clark v. State, (1902) 159 Ind. 60, 64 N.E. 589. We therefore deem this portion of the issue wаived, and further find that Fields’s arguments relating to sufficiency of the evidence are without merit.
Fields’s final argument urgеs error in sentencing on all three counts in that they stem from one set of operative facts. A reсent Supreme Court case, Elmore v. State, (1978) Ind., 382 N.E.2d 893, overrules those authorities relied upon by Fields by substituting an “identity of offenses” tеst instead of the “operative facts” test previously used in certain cases by our courts. Under Elmore, supra, Fields was properly sentenced.
Judgment affirmed.
LYBROOK, P. J., and LOWDERMILK, J., concur.
Rehearing
PETITION FOR REHEARING
ROBERTSON, J.Fields argument on rehearing relating to the sufficiency of the evidence misconstrues our holding which merely reiterates the proposition that issues must be raised in the motion to correct errors with duly noted exception stated in Elmore v. State, (1978) Ind., 382 N.E.2d 893.