Vearnetta M. WHITLEY, Appellant (Defendant), v. STATE of Indiana, Appellee (Plaintiff).
No. 34A02-8906-CR-00281
Court of Appeals of Indiana, Second District
April 30, 1990.
It is well-established that opinions are not properly permitted to be given in testimony in instances where the jurors are as well qualified to form an opinion upon the facts as the witness. Reburn v. State (1981), Ind., 421 N.E.2d 604.
Spivey objects to the following exchange between the State and Dickerson:
“Q. Did Mr. Spivey whisper anything else to you at that time?
A. Not was [sic] far as I can remember.
Q. It was just, I think he recognizes us, or something that effect?
A. Well, one time he, he did say, uh, you know what we gotta do, just like that.
Q. And he said that to you?
A. Yeah.
Q. And had the two (2) of you talked about this potential situation before you went into the Dooley O‘Toole‘s?
A. Yeah.
Q. Okay. And what was your understanding as, as to, uh, what you had to do at that time?
A. We would ...
MR. HAWKINS: Objection, Judge.
A. ... shoot him.
MR. HAWKINS: Asks for a conclusion.
THE COURT: No. Overruled.
Q. I‘m sorry, what—what was your answer?
A. We would shoot him.
Q. That you would shoot him?
A. Yeah.
Q. All right. Did you and Mr. Spivey have any agreement as to who would do the shooting?
A. No.
Q. Okay. Now, when Mr. Spivey said this to you, where were you located in the Dooley O‘Toole‘s?
A. Still standin’ right there by the front door, in front of the office door.”
Record at 237-38.
Contrary to Spivey‘s claims, the question did not require Dickerson to make a conclusion. Instead, the question merely put into context Spivey and Dickerson‘s agreement that Hollis would be shot if he recognized Dickerson. As Dickerson had previously testified, Spivey and he agreed to shoot Hollis if he recognized Dickerson, record at 232, the question posed to Dickerson merely required him to repeat that testimony and relate facts specifically within his knowledge.
Therefore, the trial court did not err when it overruled Spivey‘s objection, and Dickerson‘s response was properly admitted. See Wagner v. State (1985), Ind., 474 N.E.2d 476.
Judgment affirmed.
SHIELDS, P.J., concurs.
CHEZEM, P.J., concurs in result.
Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee.
BUCHANAN, Judge.
CASE SUMMARY
Appellant-defendant Vearnetta M. Whitley (Whitley) appeals from her conviction for disorderly conduct,1 a class B misdemeanor, claiming the evidence was insufficient to support the court‘s finding that she engaged in “tumultuous conduct.”
We affirm.
FACTS
The facts most favorable to the judgment show that at approximately 1:00 a.m. on August 8, 1988, Kokomo police officers were dispatched to the Gateway Gardens apartment complex in Kokomo to investigate a neighborhood disturbance involving black women and white women. Officer Jim Cook (Cook) of the Kokomo Police Department observed seven or eight women yelling at each other. Cook separated the parties involved and determined that no one had been injured or wished to file charges. Because the two groups continued to yell, scream, and curse at each other, Cook had another Kokomo police officer, Rick Carter (Carter), take the white women back to their apartment, while Cook continued to talk to the group of black women.
The women began to calm down except for Whitley. She continued to yell at the white women as they were being led away. Cook, Carter, and several of the black women asked Whitley to quiet down, but she refused. When Carter gently touched Whitley on her arm and asked her to step to the side, Whitley pulled away and began cursing and yelling at him.
By this time, several residents began coming out of their apartments. Carter threatened to arrest Whitley if she refused
Whitley was charged with resisting arrest, public intoxication, and disorderly conduct. At a bench trial, the trial judge dismissed the public intoxication charge and convicted her of resisting arrest and disorderly conduct. Whitley received a six-month suspended sentence for each charge.
ISSUE
The only issue before us is:
Whether there was sufficient evidence to support Whitley‘s conviction for disorderly conduct, which conviction was based on the finding Whitley engaged in tumultuous conduct?
DECISION
PARTIES’ CONTENTIONS—The State contends that Whitley, by continuing to yell, scream, and curse, was likely to cause a fight between the black women and white women. Therefore, the State contends there was sufficient evidence to support her conviction for disorderly conduct.
Whitley responds that the evidence did not support a finding that she engaged in “tumultuous conduct” as that term is statutorily defined.
CONCLUSION—The trial court properly concluded that Whitley‘s actions constituted “tumultuous conduct.”
“A person who recklessly, knowingly, or intentionally:
(1) engages in fighting or in tumultuous conduct;
(2) makes unreasonable noise and continues to do so after being asked to stop; or
(3) disrupts a lawful assembly of persons;
commits disorderly conduct, a Class B misdemeanor.”
The information filed against Whitley alleges that “on or about the 8th day of August, 1988, VEARNETTA M. WHITLEY did ... engage in tumultuous conduct ...”2 Record at 18. “Tumultuous conduct” has been defined by the legislature as “conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property.”
It is a fundamental rule of construction that a statute should be construed so as to ascertain and give effect to the legislative intent. State ex rel. Bynum v. LaPorte Superior Court (1973), 259 Ind. 647, 291 N.E.2d 355. Words and phrases are to be taken in their plain, ordinary and usual sense unless a different purpose is manifested by the statute itself. St. Germain v. State (1977), 267 Ind. 252, 369 N.E.2d 931; Overlade v. Wells (1955), 234 Ind. 436, 127 N.E.2d 686.
The language of the statutory definition of “tumultuous conduct” contemplates physical activity rising to the level of serious bodily injury, substantial property damage, or that either is likely to occur. Gebhard, supra;
The trial court could have reasonably concluded that Whitley‘s struggle with the police officers met this statutory definition, namely that there was a likelihood that either Whitley or the police officers could have sustained serious bodily injury during the attempt to handcuff Whitley. The record evidences a protracted physical
Thus, the trial court judge could have properly concluded that Whitley‘s conduct during the struggle supported both the resisting arrest and disorderly conduct convictions. The test for determining whether or not the two convictions are the same for double jeopardy purposes is not whether the convictions arise from the same act, but whether the same act constitutes a violation of two distinct statutory provisions which require the proof of an additional fact. Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306; Purter v. State (1987), Ind., 515 N.E.2d 858; Elmore v. State (1978), 269 Ind. 532, 382 N.E.2d 893. As our supreme court has recognized “[t]he focus of [the double jeopardy] analysis is on whether the offenses charged are the same and not on whether the offenses arose from the same act or operative circumstances.” Swafford v. State (1986), Ind., 498 N.E.2d 1188, 1191; See also Elmore, supra. Offenses are not considered to be the same if each requires proof of at least one element not included in the other. Catrabone v. State (1986), Ind., 490 N.E.2d 272. In making that determination the court is to examine the relevant statutory provision as well as the information or indictment upon which the charges are predicated. Tawney v. State (1982), Ind., 439 N.E.2d 582. This double jeopardy analysis, which was first set forth in Blockburger and adopted by our supreme court in Elmore, has recently been reaffirmed by our supreme court. Whittle v. State (1989), Ind., 542 N.E.2d 981; Jaske v. State (1989), Ind., 539 N.E.2d 14; Strong v. State (1989), Ind., 538 N.E.2d 924.
In applying these principles to this case, we can conclude that the double jeopardy clause does not bar Whitley‘s convictions for both resisting arrest and disorderly conduct. To convict Whitley for resisting arrest the State was required to show Whitley “forcibly resist[ed], obstruct[ed], or interfer[ed]” with Officers Carter or Cook while they were lawfully engaged in their duties. Record at 16; see
There is, however, another basis for the disorderly conduct conviction. There is evidence that Whitley‘s conduct prior to her arrest created a likelihood that serious bodily injury or substantial property damage would result. Carter testified that while he was escorting the white women back to their apartments, Whitley yelled at them and taunted them, thereby provoking the white women to yell and curse back at her. Record at 57. Given the racial nature of the confrontation that night, a reasonable inference certainly could be drawn that Whitley‘s conduct constituted tumultuous conduct because it could have led to a fight between the two groups which was likely to result in serious bodily injury.
Judgment affirmed.
CHEZEM, P.J., concurs.
SULLIVAN, J., dissents with opinion.
SULLIVAN, Judge, dissenting in part.
Although the evidence supports the conviction for resisting law enforcement (
The majority opinion relies upon Indiana Supreme Court caselaw which appears to rigidly apply the Blockburger-Elmore test with regard to double jeopardy considerations. To be sure, mixed signals may be drawn from various cases. Compare Whittle v. State (1989) Ind., 542 N.E.2d 981 (rejection of same transaction test) with Jaske v. State (1989) Ind., 539 N.E.2d 14; Stwalley v. State, supra, 534 N.E.2d 229, and Ellis v. State (1988) Ind., 528 N.E.2d 60. In any event I do not read the cases to hold that the Blockburger test is dispositive of cases such as that here considered. Where, as here, a single act violates two separate criminal statutes, conviction may be had on only one. Stwalley v. State, supra; Ellis v. State, supra; Blanton v. State (1989) Ind.App., 533 N.E.2d 190.
The majority finds an alternative basis for the disorderly conduct conviction in defendant‘s activity prior to her arrest. Although there may have been the seeds of injury or damage in the situation before the arrival of the police, the danger had been greatly if not altogether diminished at the time in question. At least three police officers were present at the crucial time here involved. They had quieted all the participants in the disturbance with the exception of Whitley. I do not believe that there was sufficient likelihood of serious bodily injury or substantial property damage to support the conviction.
I would reverse the conviction for disorderly conduct.