Berry v. State, 49A02–1304–CR–348.
| Decision Date | 26 December 2013 |
| Docket Number | No. 49A02–1304–CR–348.,49A02–1304–CR–348. |
| Parties | Terry BERRY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Patricia Caress McMath, Marion County Public Defender, Indianapolis, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Terry Berry (“Berry”) appeals his convictions for Disorderly Conduct, as a Class B misdemeanor,1 and Carrying a Handgun without a License, as a Class A misdemeanor.2
We affirm.
Berry presents three issues for our review, which we restate as whether:
On September 25, 2012, Berry was driving on 38th Street in Indianapolis; there were three passengers with him. In traffic behind Berry, separated by several cars, was Marion County Sheriff's Office (“MCSO”) Deputy James Russo (“Deputy Russo”). While driving along 38th Street, Deputy Russo heard tires squeal and saw Berry's car weaving across lanes, cutting off other drivers. Berry's erratic driving continued for more than a mile, causing other drivers to brake suddenly.
Eventually, Deputy Russo was able to move through traffic and initiate a traffic stop of Berry's vehicle. Berry pulled his car into the lot of an automotive repair shop in the 1800 block of East 38th Street, and Deputy Russo pulled up behind Berry's car.
Because of the number of occupants of Berry's vehicle, Deputy Russo called for additional assistance. MCSO Captain Donald VanCleave (“Captain VanCleave”) arrived to help Deputy Russo conduct the traffic stop.
Deputy Russo approached Berry's vehicle on the driver's side and began to talk with Berry, who was agitated and belligerent after being pulled over. In response to Deputy Russo's request for Berry's driver's license and registration, Berry fumbled with paperwork in his lap with his right hand. While doing this, Berry put his left hand down between the driver's door and his seat, out of Deputy Russo's sight. Deputy Russo twice asked Berry to move his left hand back into view; Berry complied with these requests, putting his left hand back into his lap.
Berry eventually attempted to have Deputy Russo take paperwork from him by opening the door to the car; while doing so, Berry reached across to open the door with his right hand, keeping his left hand between the door and the seat. Deputy Russo closed the door and, having become concerned for their safety due to Berry's repeated movement of his left hand, Deputy Russo and Captain VanCleave each drew their weapons. Additional backup was called, and Deputy Russo and Captain VanCleave began to remove Berry and the passengers from the car.
Deputy Russo removed Berry and the driver's side backseat passenger from the vehicle. As Captain VanCleave was preparing to remove the passenger's side backseat occupant from the car, he saw the barrel of a chrome, semi-automatic handgun protruding into the rear passenger's compartment from underneath the seat Berry had just previously occupied. After a search of state records did not return any information that Berry had a license to carry a firearm, Berry was placed under arrest.
During the traffic stop and subsequent detention of Berry and his passengers, additional police officers arrived, several with lights and sirens on. Throughout his interaction with police, Berry was agitated, and became more so as the traffic stop continued on. Berry yelled and cursed at police, becoming louder as time went on to the point that he was audible over the sound of police sirens, causing occupants of the repair shop where the stop occurred to come out and see what was happening at the scene; the more people came out of the shop, the louder Berry became. Captain VanCleave and Deputy Russo eventually abandoned their attempts to explain why they had stopped Berry and why he had been arrested, and Captain VanCleave ordered Berry transported away from the scene.
On September 26, 2012, Berry was charged with Carrying a Handgun without a License, as a Class A misdemeanor, and Disorderly Conduct, as a Class B misdemeanor. A jury trial was conducted on March 21, 2013, at the conclusion of which Berry was found guilty of both counts, as charged. After the trial's conclusion, the court entered judgments of conviction against Berry and sentenced him to 365 days of imprisonment for Carrying a Handgun without a License, with sixty days suspended to probation, and 154 days of imprisonment for Disorderly Conduct, with twenty-six days suspended to probation; the sentences were run concurrently to one another, and consecutively to sentences in unrelated matters.
This appeal followed.
On appeal, Berry first contends that the trial court abused its discretion when it did not issue to the jury his proffered instruction on Disorderly Conduct.
We afford trial courts broad discretion in the manner of instructing a jury, and we review such decisions only for an abuse of that discretion. Snell v. State, 866 N.E.2d 392, 395 (Ind.Ct.App.2007). When reviewing jury instructions on appeal, we look to (1) whether the tendered instructions correctly state the law, (2) whether there is evidence in the record to support giving the instruction, and (3) whether the substance of the proffered instruction is covered by other instructions. Treadway v. State, 924 N.E.2d 621, 636 (Ind.2010). We will reverse a conviction only where the appellant demonstrates that an error in the jury instructions prejudiced his substantial rights. Id. “ ‘[W]here a conviction is clearly sustained by the evidence and the jury could not properly have found otherwise,’ “ we will not reverse the conviction. Johnson v. State, 959 N.E.2d 334, 338 (Ind.Ct.App.2011) (quoting Williams v. State, 891 N.E.2d 621, 630 (Ind.Ct.App.2008) ), trans. denied.
Berry's assignment of error centers upon the trial court's decision not to issue to the jury a tendered instruction that cited language from two appellate cases, one from the Indiana Supreme Court, Price v. State, 622 N.E.2d 954 (Ind.1993), and one from this Court, Borchert v. State, 621 N.E.2d 657 (Ind.Ct.App.1993), trans. denied. There is no blanket prohibition on the use in jury instructions of language from appellate decisions. Gravens v.. State, 836 N.E.2d 490, 494 (Ind.Ct.App.2005), trans. denied. But the mere fact that an appellate case uses specific language does not render that language suitable for proper instruction of a jury. Ludy v. State, 784 N.E.2d 459, 461 (Ind.2003). And “[i]nstructions that emphasize one particular evidentiary fact, witness, or phase of the case have long been disapproved.” Id.
Here, Berry was charged with Disorderly Conduct. Indiana Code section 35–45–1–3 provides that “[a] person who recklessly, knowingly, or intentionally ... makes unreasonable noise and continues to do so after being asked to stop ... commits disorderly conduct, a Class B misdemeanor.” I.C. § 35–45–1–3(a). The jury was instructed on the statutory elements of the offense of Disorderly Conduct and the requisite levels of culpability.
Berry did not object to any of these instructions, but also tendered the following proposed final instruction:
(App'x at 76.) The trial court declined to so instruct the jury, and Berry contends that the trial court's rejection of this tendered instruction was an abuse of discretion.
The State concedes that the language of Berry's tendered instruction was a correct statement of the law. The State qualifies its concession, however, based upon the specific fact patterns of Price and Borchert and argues that the tendered instruction would have drawn excessive attention to one facet of the evidence—the question of how loud Berry was without reference to the broader effect of Berry's conduct.
We agree. There was not specific evidence as to the volume of Berry's voice or the overall level of ambient noise in the environment at the time. Thus, the question of Berry's loudness per se was not so sufficiently evidenced as to require a jury instruction.
Yet, even if that were not the case, any error in declining to issue Berry's proffered instruction was harmless because our review of the evidence leads us to a conclusion that the jury could not reasonably have reached a conclusion other than that Berry was making unreasonable noise. Deputy Russo testified that Berry's interactions with him began with belligerence that only increased as the encounter with police went on. Eventually, Berry was yelling at police with sufficient volume that, over the sound of police sirens, people continued to come outside from a repair shop to see what was happening. Both Deputy Russo and Captain VanCleave testified that as more people came from inside the shop, Berry responded by becoming louder still. Captain VanCleave testified that Berry's yelling became so difficult to deal with that a wagon was called to take Berry away and police entirely ceased trying to communicate with Berry about the reason for his arrest.
Accordingly, we decline to reverse Berry's conviction on the basis of his challenge to the trial court's rejection of his tendered jury instruction.
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