Andrews v. State, 1-1185A295

• Citation: 505 N.E.2d 815
• Decision Date: 31 March 1987
• Docket Number: No. 1-1185A295,1-1185A295
• Parties: Michael ANDREWS, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.
• Court: Court of Appeals of Indiana

Page 815

505 N.E.2d 815

Michael ANDREWS, Petitioner-Appellant, v. STATE of Indiana, Respondent-Appellee.

No. 1-1185A295.

Court of Appeals of Indiana,

First District.

March 31, 1987.

Susan K. Carpenter, State Public Defender, C.H. Gardner, Deputy Public Defender, Indianapolis, for petitioner-appellant.

Linley E. Pearson, Atty. Gen., Gary Damon Secrest, Jay Rodia, Deputy Attys. Gen., Office of Attorney General, Indianapolis, for respondent-appellee.

RATLIFF, Chief Judge.

STATEMENT OF THE CASE

Michael Andrews appeals his conviction for recklessly remaining in a voting booth longer than one minute, a class A misdemeanor. We affirm.

FACTS

At the 1984 general election, Michael Andrews and three co-defendants staged a form of protest against the absence of write-in ballots in Indiana. Several minutes after entering the voting booth of Precinct 7 in Bloomington, Andrews was asked if he needed assistance and he demanded a write-in ballot. Andrews was informed that write-in ballots were not available and that he would either have to leave the voting booth or be arrested. Andrews On November 7, 1984, Andrews was charged with recklessly remaining in a voting booth for longer than one minute in violation of Indiana Code section 3-1-23-28. Following a jury trial, Andrews was found guilty. Andrews was sentenced to one year for the misdemeanor, with all but ninety days suspended, and sentenced to over one hundred days for being in contempt of court. Applying credit time, the Department of Corrections released Andrews at the expiration of his sentence. Following a hearing, the trial court recommitted Andrews after finding that credit time did not apply to contempt sentences. Thereafter, Andrews perfected this appeal.

chose to remain in the voting booth for forty-five minutes until his arrest. Approximately one hundred and fifty voters were kept waiting in line during this episode. An hour later the booth was reset and made available to waiting voters.

ISSUES

Andrews presents twelve issues for review which we have reworded and subsumed into the following:

1. Whether the evidence is sufficient to sustain Andrews' conviction for remaining in a voting booth for over one minute.

2. Whether the one minute rule was used in a discriminatory manner so as to deny Andrews due process and equal protection of the law, and whether the provision is unconstitutionally vague and overbroad.

3. Whether the trial court erred in refusing to dismiss the charge against Andrews for lack of subject matter jurisdiction.

4. Whether the trial court erred in refusing to admit certain evidence and in taking other actions all resulting in allegedly denying Andrews a fair trial.

5. Whether the trial court erred in denying Andrews' motion for impartial jury selection which allegedly resulted in systematically excluding from the jury independent, third party, and low income voters.

6. Whether the trial court erred in denying Andrews' motions for a mistrial and disqualification where the trial judge consulted with outside sources during the trial.

7. Whether the trial court erred in finding Andrews in contempt of court or whether the trial court erred in failing to state specifically the acts complained of in its memoranda of contempt.

8. Whether the trial court committed reversible error in failing to rule on Andrews' motions to reconsider its contempt citations.

9. Whether the trial court erred in denying his motion to dismiss the November 19, 1985, hearing wherein the trial court determined good-time credits to be inapplicable to contempt sentences.

DISCUSSION AND DECISION

Issue One

It should be noted that when reviewing the sufficiency of the evidence, this court does not judge the credibility of witnesses nor weigh the evidence. Rather, we consider the evidence most favorable to the verdict together with all inferences which may be drawn therefrom. If there is substantial evidence of probative value to support each element of the offense, the judgment will be affirmed. Johnson v. State (1982), Ind.App., 441 N.E.2d 1015, 1016; Anderson v. State (1980), Ind.App., 406 N.E.2d 351, 352, trans. denied; Stocklin v. State (1976), 169 Ind.App. 49, 50, 345 N.E.2d 863, 864, trans. denied.

Andrews was convicted of recklessly remaining in a voting booth longer than one minute. Indiana Code section 3-1-23-28 ¹ provides:

"At any primary election where voting is either by machine or printed ballot or both no voter shall remain within the voting booth or compartment longer than three (3) minutes; where, at any general or special election, voting is by machine, no voter shall remain within the voting booth or compartment longer than one (1) minute; and where voting is by printed ballot, no voter shall remain within the voting booth or compartment longer than three (3) minutes. If any voter shall refuse to leave such booth or compartment after the elapse of such time, he shall at once be removed therefrom by the election board, or by the election sheriff or sheriffs upon order of the board."

A violation of this provision is made a class A misdemeanor by Indiana Code section 3-1-32-63 ² which states "A person who recklessly violates a provision of this article for which a specific penalty is not otherwise provided commits a class A misdemeanor." Andrews freely admits that he violated the one minute provision. His contention, however, is that he did not violate Ind. Code Sec. 3-1-23-28 recklessly as defined by statute. Indiana Code section 35-41-2-2(c) states, "A person engages in conduct 'recklessly' if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct." The gist of Andrews' argument is that he has a constitutional right to cast a write-in ballot and, therefore, his insistence upon this right during the 1984 election cannot be a substantial deviation from acceptable standards of conduct. Andrews misunderstands the issue involved in this appeal.

It is Andrews' conduct, not his motivation, that is at issue in this case. Andrews' argument that he has a constitutional right to a write-in ballot may or may not have merit. ³ However, that issue is not before us at present and therein lies Andrews' confusion. Andrews was charged and convicted of remaining in a voting booth for longer than the law permits; he was not charged with attempting to cast a write-in ballot. The issue before this court and the trial court is not the constitutionality of write-in ballots, but rather the legality of Andrews' remaining in the voting booth over the allotted time period.

Andrews recklessly remained in the voting booth longer than statutorily permitted. Andrews and his co-defendants entered the Bloomington poll well aware of the fact that many other people were waiting to exercise their right to vote. Andrews entered a voting booth and remained there several minutes until an election official asked him if he needed assistance. Andrews then demanded a write-in vote and was informed none were available and that he would have to vacate the booth or be arrested. Andrews chose to remain in the voting booth approximately forty-five minutes until the police arrived to arrest him. Andrews apparently had no qualms about deterring the voting rights of one hundred and fifty other people, possibly disenfranchising them. It was an hour before the voting booth could be reset for use by other waiting voters. Clearly, Andrews' conduct was in plain, conscious, and unjustifiable disregard of the rights of the other waiting voters. Andrews is presumed to have intended the consequences of his acts. Covington v. State (1975), 262 Ind. 636, 643, 322 N.E.2d 705, 708; Emery v. State (1968), 250 Ind. 500, 504, 236 N.E.2d 28, 30. In addition, criminal intent to commit a specific criminal act may be presumed from the voluntary commission of the act. Coffer v. State (1958), 239 Ind. 22, 23, 154 N.E.2d 371, 371. Thus, Andrews is presumed to have intended to disrupt Precinct 7, leave the voting machine temporarily inoperative and, in the process, interfere with the voting rights of others. Andrews' actions were not in conformance with typically acceptable standards of conduct at an election poll and he, therefore, clearly possessed the reckless intent necessary to sustain his conviction.

Moreover, a lawful objective will not justify the employment of means which are themselves unlawful. Roth v. Local Union 1460 of Retail Clerks Union (1939), 216 Ind. 363, 24 N.E.2d 280 (lawful objective does not justify disorderly or unlawful picketing). Neither does evidence of good motive for commission of a crime constitute a defense even when specific intent is required. 22 C.J.S. Criminal Law Sec. 31 (1961); 1 Wharton's Criminal Evidence Sec. 166 (12th ed. 1955). Various individual constitutional rights exist as a unitary portion of a group of corollary rights, each of which can be exercised only to the extent that such does not encroach upon or erode the others. Cunningham v. State (1973), 261 Ind. 256, 258, 301 N.E.2d 638, 640, quoting Campbell v. State (1971), 256 Ind. 630, 633, 271 N.E.2d 463, 465.

"The States, within the limitations imposed by the due process and equal protection requirements of the Fourteenth Amendment to the Constitution of the United States, may regulate and restrain the exercise of the freedom of expression, thereby insuring to all the freedom from the abusive exercise of the rights of others."

Campbell, at 633, 271 N.E.2d at 465. Thus, despite Andrews' motivation or good intentions he does not have the right to exercise his rights at the expense of other peoples' rights. W. Stanmeyer, The New Left and the Old Law, 55 A.B.A.J. 319 (1969). Andrews could have chosen a legal method of protesting or challenging Indiana's lack of write-in ballots. However, he chose instead to break the law and impede the voting rights of fellow voters....