Gamble v. State
591 N.E.2d 142
Ind. Ct. App.
1992
Check Treatment

*1 Christopher GAMBLE, S.

Appellant-Defendant, Indiana, Appellee-Plaintiff.

STATE of

No. 35A02-9111-CR-506.

Court Appeals

Second District.

May4, 1992.

John W. Bailey, Matheny, Michael, Hahn Bailey, & Huntington, appellant-defen- for dant.

Linley Pearson, E. Atty. Gen., Mary Dreyer, Deputy Gen., Atty. Indianapolis, for appellee-plaintiff.

BUCHANAN, Judge.

CASE SUMMARY Appellant-defendant Christopher S. Gam (Gamble) appeals his convictions disorderly conduct,1 a class B misdemean or, resisting enforcement,2 A class misdemeanor, intoxication,3 a misdemeanor, class B claiming that the evi dence was insufficient the con victions, and that the conviction should be reversed because one of the witnesses tes 1. 35-45-1-3(2) (1988). Ind.Code (1988). Ind.Code 7.1-5-1-3 35-44-3-3(a) (1988). Ind.Code

143 ar- CONTENTIONS-Gamble PARTIES' order separation aof in violation tified suffi- present to failed State the gues that court. trial by the entered he was establishing that evidence cient We affirm. rea- beyond a charged crimes the of guilty that responds The State doubt. sonable FACTS sufficient. was the evidence judg to the favorable most facts The suffi- was evidence Stacey Rob CONCLUSION-The asked that Gamble reveal ment of guilty was prove cient of abode to the him to drive (Roberts) erts charged. the offenses Parkview (Gibson) at the Corey Gibson Indiana, in or Huntington, in Apartments testi police officers trial, several argument with an might settle he that der of alcohol strong odor awas there fied that Gibson. was slurred. speech his and him about complex, Gam- at the they arrived When 502, 667, Gamble 405, 704. 337, at walked truck, and Roberts in the waited ble fought and and boisterous loud became told Roberts apartment. to Gibson's up This they arrived. police when the the answered (Wall), who Wall Robert Gam to show evidence sufficient was and outside come should door, that Gibson v. e.g. Porter See intoxicated. was ble leave refused Gibson to Gamble. talk 801 180, N.E.2d 391 Ind. (1979), 271 State a rifle sawhe indicated and apartment the affirmed intoxication public for (conviction to Gamble. next the truck that de demonstrated evidence the when arrived they and police the called alcohol, slurred Gibson had of smelled fendant the saw They to later. attitude moments a hostile displayed the scene at and speech, the of front seat Hampton in the officers); to Gamble see also rifle next ward the N.E.2d cooperate with refused He State vehicle. alcohol strongly of he smelled and his position the takes Gamble shout Gamble slurred. was speech his and not may intoxication public for conviction continued and the officers at ed obscenities show failed the State because stand down. quiet ordered he was after yelling time at the place" "public in a was Gamble it and police, the struggled with Gamble in a was Gamble Proof arrest. his he so Gamble restrain four officers took of the element essential is an area public carried officers The handcuffed. could (1966), 247 v. State Miles case. him placed State's and cruiser to the Gamble Haynes also see N.E.2d Ind. shout continued Gamble seat. in the back Ind.App., 563 v. State the way to on the ing obscenities grounds); dissenting other on (Buchanan, J. drunk in the placed was Gamble When 7.1-5-1-8. and IC walls glass the on tank, pounded he times. several metal door pri- kicked the. in a located was truck the Although the lot when parking Gam- owned April vately on jury trial Following a precluded is it, State the charges. approached all convicted intoxi- public for prosecuting from Ind. (1889), 117 v. Sevier In ISSUES cation. made supreme 245, our N.E. sufficient evidence the 1. Whether following statement: convictions? support protect tois the law purpose "The abused trial Whether deleteri- annoyances from public permitting discretion be- occur do may which effects ous violated shown testify when are who persons presence of the cause the witnesses? separating order an condition." intoxicated in an DECISION In Heichel 246-47. at N.E. Id. 334, 281 bech -Was ONE ISSUE conviction 102, the defendant's convictions? public intoxication upheld when the Gamble was guilty intoxication evidence revealed that he was arrested in a beyond a reasonable doubt. service station parking lot. In writing for refuge seeks in the First the majority, Justice Prentice artfully con Amendment to the U.S. Constitution as to cluded place that a "public may resort" *3 the disorderly conduct charge. be a "public place:" The State charged Gamble as follows: argument "[Heichelbech's] that he was "On or about the day October, public in a place is without merit. 1990, in Huntington County, in the State was, He instant, at that at an automobile said defendant did recklessly station, service a business establishment or knowingly make noise, unreasonable open public. to the Although private to-wit: cussing and shouting public property, was, this nevertheless, either and continued to make said noise after 'public a place or place a public being asked to stop by Cletus W. Oling resort' within the meaning the stat- er...." ute proscribing the [Citations offense. Record at 24. IC 35-45-1-3 provides in gasoline A omitted]. service station was part relevant that: person "A who (2) ... held public to be a place within the ambit makes unreasonable noise and continues to

of a similar statute in State v. Fenner do so after being asked stop ... commits (1965), 694, 263 N.C. 140 S.E.2d 349. Mo- disorderly conduct...." earlier, ments the defendant was seen in trial, police At officer Olinger (Ol Cletus his automobile within public a highway. inger) testified that Gamble was screaming We cannot assume that his condition had "at top lungs." Record at 686. changed in the interim. A parked truck Olinger and the other officers told Gamble on the side of the highway was held to be quiet down, and he refused to do so. a place under the same statute in 397, Record at 421, 438. Officer Tom Miles v. (1966), State 423, 247 Ind. 216 Hughes (Hughes) testified N.E.2d 847." "f_ _k was screaming you guys you you know can't do this to 340-41, me." Heichelbech at Record at N.E.2d at 105- (emphasis supplied). He also screamed that he was f_ going to "kill that __gpig" when he trial, the evidence revealed that got out of Record at 446. officers approached the truck which was In Brittain (1990), State parked App., apartment complex parking this upheld a conviction lot. Gamble was a passenger and a rifle for disorderly conduct when the evidence was beside him. Record at 384. Rob reflected that the intoxicated defendant be erts testified that Gamble consumed two belligerent came and sereamed at beers before arriving at apart Gibson's officer several times calling him a ment, Record at and Gibson saw Gam "f____r" and a son-of-a-bitch. As in Brit ble drinking in parked the truck outside the tain, we consider Gamble's language apartment. Record at 175. constitute fighting words undeserving Although the truck had not entered the protection. constitutional See also Robin public highway when the officers ap son v. State Ind.App., 588 N.E.2d proached, apartment complex roadway 583; Mesarosh v. was obviously accessible to general Stults public enabling them to travel to and from Ind.App. 461, 336 N.E.2d 669. The evi the various units in the complex. The evi dence also demonstrates that Gamble con dence also demonstrated that Gamble tinued yell and shout at the offi in an intoxicated condition before leaving cers after they told him to quiet. Under apartment complex inasmuch as he and these circumstances, the evidence was suf Roberts drank prior beer to their departure ficient support the conviction for disor for Gibson's. See Heichelbech, supra. derly conduct. Brittain, supra (defen The jury could reasonably conclude dant's continued verbal assault on and discovered during lunch reports to calm orders repeated despite drove Olinger who disorderly down Emley acknowl at 624. jail. Record conviction). conduct discrepancy this he discussed edged that also sufficient The noon break. during the Olinger with resisting conviction support Gamble's inquired judge The trial at 624-25. Record enforcement. place be took the conversation about that: 35-44-3-8(a) provides IC determined Emley and Olinger tween intentional knowingly or who person "A Emley's but discussed nothing was obstructs, in or resists, (1) forcibly transported ly: belief mistaken officer enforcement a law terferes The trial jail, while assisting the person aor to exclude motion *4 Gamble's denied then in the engaged lawfully is officer the Olinger permitted testimony and Olinger's officer; as an duties of his the to execution Gamble driven had that he to state enforcement, a resisting law commits fact. true the represented which jail A misdemeanor...." Class at 628. Record that trial, demonstrated it was Emley the Olinger's conversation While to police the permit to refused Gamble of witness separation court's the violated to four him, it took and him handcuff admonished judge the order because strug to continued Gamble him. restrain any other testimony with to discuss not the at he arrived when the gle with the has court a trial witness, at record 317-39, 257-65, 178-86, at Record testify to a witness permit discretion was 497-553, This 429-54, 641-96. 379-99, an or- such of violation notwithstanding a show than more conni- show can der, the defendant unless resisting law enforcement of guilty the of on behalf procurement or vance (1989), v. State e.g. Bernard officials. See Ind., (1989), 544 v. State Morgan State. resisting (conviction for 23 Ind., N.E.2d 540 Ind., (1988), v. State 143; Halbig N.E.2d defendant upheld when enforcement (1991), 288; Roop v. State N.E.2d cruiser, then of a interior the kicked denied. trans. N.E.2d App., officer). kick a uniformed turned testimony Emley's in change the While its abuse court the trial TWO-Did ISSUE Oling credibility lent some have might permitting in discretion regarding events the of recitation er's violated he that was shown it testify when inde evidence conduct, there Gamble's witnesses? the separating order an establishing that testimony this pendent CONTENTIONS-Gamble PARTIES' charged offenses. the committed Gamble it when erred the trial that Hughes claims 1, supra, issue in discussed As Oling exclude motion Gamble's by denied arrest resisted that testified he that shown testimony when er's Simms Emley and kicking struggling wit separation court's trial violated him. Record restrain attempted to they as that replies The State Gam order. testified nesses also Hughes 437-38. at his discretion exercised properly judge trial cussing, screaming, [and] yelling, "was ble testimony because Olinger's permitting in the vicin everyone enough for quite loud or procurement evidence no there yelling] he was him, hear ity [and the State. part of f_ _k officers. on connivance at guys" you not did trial CONCLUSION-The Gam- denying error reversible commit inadmissible The introduction testimony. Olinger's exclude motion ble's deci not cumulative merely is which Hen error. prejudicial not is guilt sive mistak (Emley) Emley Tom Officer 725; Ind., N.E.2d (1990), Gam v. State transported dricks had enly testified v. State had calmed Coomer jail and predi should Reversal re noon After ride. during the down evi admission erroneous on cated read he had cess, Emley revealed dence when evidence of the probative same

value is properly admitted. See Wallace v. (1985), Ind., cert. denied U.S. 106 S.Ct. 3311, 92 L.Ed.2d Hatton v. State

(1986), Ind.App., 498 N.E.2d 398. While may it have been permit error to

Olinger to testify in violation of the witness

separation order, the record reflects that

the other properly admitted evidence was prove

sufficient to that Gamble committed

the charged offenses. Olinger's improper

ly admitted testimony was merely cumula

tive of other evidence already before the

jury, so reversal is not warranted. See

Hendricks, supra; Wallace, supra. A de

fendant is not entitled perfect to a trial, only a fair one. Riley *5 Ind., 489 Pineiro

(1982), Ind.App., 484 trans. denied.

Judgment affirmed.

HOFFMAN, J., concurs. SHIELDS, J., concurs as to all issues

except the sufficiency of the evidence to

sustain the disorderly conduct conviction;

on that issue she concurs in result.

Christy MILLER, H. Appellant,

Defendant, Indiana,

STATE of Appellee-Plaintiff.

No. 25A03-9201-CR-2.

Court of Appeals

Third District.

May

Transfer Denied June