Evans v. State
| Decision Date | 12 May 1982 |
| Docket Number | No. 1-1181A319,1-1181A319 |
| Parties | Cheryl EVANS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
R. Steven Prifogle, Fran F. Koski, Bloomington, for appellant.
Linley E. Pearson, Atty. Gen., Dan S. LaRue, Deputy Atty. Gen., Indianapolis, for appellee.
Cheryl Evans (Evans) was convicted of a class C infraction, provocation, Ind.Code 35-42-2-3, before a bench trial in Monroe County.
We reverse and remand.
The facts most favorable to the State reveal that Evans and a companion were walking southward on South Walnut Street in Bloomington near its intersection with East Wylie Street. Captain James Inman (Inman) of the Monroe County Sheriff's Department was proceeding north on South Walnut when he encountered Evans. Inman admitted that the passenger window was rolled up. He testified that he saw Evans lean towards the street where he partially heard her say and partially read her lips to say "fucking pig" or "fucking prick". The epithet was directed to Inman. Inman further testified that he thought Evans might need assistance so he stopped his vehicle, backed up, got out of the vehicle and then confronted Evans. Evans was arrested and convicted of provocation for her comments to Inman.
On appeal, Evans alleges that the trial court erred by not granting her motion to dismiss, that there was insufficient evidence to sustain her conviction, and that IC 35-42-2-3 is unconstitutional.
Evans filed her motion to dismiss the information after being arraigned and entering her plea of not guilty. Evans failed to properly preserve this issue for appeal because the motion was not filed prior to her arraignment and plea. See, Ind.Code 35-3.1-1-4, Diggs v. State, (1977) 266 Ind. 547, 364 N.E.2d 1176.
Evans alleges the evidence is insufficient to sustain her conviction. The statutory language delineating the offense of provocation is contained in IC 35-42-2-3, which provides:
A person who recklessly, knowingly, or intentionally engages in conduct that is likely to provoke a reasonable man to commit battery commits provocation, a Class C infraction.
Evans argues that the facts do not support her conviction because there was no showing of an immediacy of a battery by Inman.
The prior statute and case law required a showing that the victim of the provocation must have had the physical capacity to commit battery. See, Warwick v. State, (1897) 17 Ind.App. 334, 46 N.E. 650. Evans contends that such a requirement must also be included in the offense or the statute will be overly broad and unconstitutional.
Evans is correct in her assertion that statutory language restricting speech must be carefully drafted not to impinge upon rights guaranteed by the First Amendment. The Supreme Court has stated:
The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language within "narrowly limited classes of speech". The line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn. In other words, the statute must be carefully drawn or be authoritatively construed to punish unprotected speech and not be susceptible of application to protected expression. (Citations omitted).
Gooding v. Wilson, (1972) 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408.
The crime of provocation is discussed in The Governor's Conference on the Indiana Penal Code, where it states:
This crime is committed by instigating another to commit battery against any person. A defendant need not actually know his conduct would cause another to commit battery, it is enough that the defendant should know that it would. The crime encompasses numerous situations; but most commonly will punish someone who provokes a fight.
The statute is designed to punish individuals who instigate or provoke another to commit battery. We believe that the language "likely to provoke a reasonable man to commit battery" naturally implies a condition that the victim of the verbal harassment must have the present capacity to commit battery. We believe that this interpretation is not only consistent with the precedent of Warwick v. State, supra, but is also consistent with the constitutional provisions necessary to protect free speech.
The State argues that Evans's epithet constitutes "fighting words" and thus, is not protected speech. In Chaplinsky v. New Hampshire, (1942) 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031, the Supreme Court held that "fighting words-those which by their very utterance inflict injury or tend to invite an immediate breach of the peace" were not protected speech. The...
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