Gebhard v. State

• Citation: 459 N.E.2d 58
• Decision Date: 23 January 1984
• Docket Number: No. 1-683A187,1-683A187
• Parties: Michael GEBHARD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Court of Appeals of Indiana

Page 58

459 N.E.2d 58

Michael GEBHARD, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-683A187.

Court of Appeals of Indiana First District.

Jan. 23, 1984.

George C. Barnett, Jr., Barnett & Barnett, Evansville, for defendant-appellant.

Linley E. Pearson, Atty. Gen. of Indiana, John D. Shuman, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Defendant-appellant Michael Gebhard was found guilty of disorderly conduct, a Class B misdemeanor, by a jury in Vanderburgh Circuit Court on February 11, 1983. Gebhard was sentenced to 180 days in the Vanderburgh County jail, but the sentence was suspended to probation on the condition that he refrain from carrying or possessing any firearms except at specified times. He was also ordered to perform community service work. Gebhard now appeals the disorderly conduct conviction.

We reverse and remand with instructions to set aside the conviction and to dismiss the charge.

STATEMENT OF THE FACTS

Gebhard's conviction stems from a fracas which occurred on November 2, 1982 at his girlfriend's apartment complex, the result of which found the appellant shot twice by an Evansville policeman who had been called to the scene.

Originally, Gebhard was charged by information with criminal recklessness, a Class D felony. This charge was subsequently dismissed, and the State then filed Count II (resisting law enforcement) and Count III (disorderly conduct) on January 25, 1983. Count III, State's Amended Information, stated in total:

"On or about November 2, 1982, in Vanderburgh County, Indiana, the Defendant, Michael Gebhard, did knowingly engage in tumultuous conduct, all in violation of I.C. 35-45-1-3(1)."

On February 4, 1983, Gebhard filed an amended motion to dismiss Count III on grounds of insufficiency and vagueness; the motion was overruled. A few days later, Gebhard filed a memorandum in support of the motion to dismiss, and a hearing was held. The motion was denied. At the trial's conclusion on February 9th, the jury did not find Gebhard guilty of Count II, but it did convict him of disorderly conduct.

ISSUES

Gebhard presents the following issues on appeal:

I. Whether the trial court erred in overruling Gebhard's motion to dismiss the Amended Information for Count III for failure to state facts and circumstances with sufficient precision so as to apprise defendant-appellant of the charge against him;

II. Whether the language of the disorderly conduct statute; to-wit, "knowingly engage in tumultuous conduct", is impermissibly and unconstitutionally vague.

DISCUSSION AND DECISION

Issue I: Insufficient Information.

Safeguards pertaining to the sufficiency of the information are provided by both the Indiana Constitution and our state statutes. A defendant has a constitutional right to be informed of the nature and cause of a criminal accusation against him. IND.CONSTIT Art. I, Sec. 13. Concurrently, Indiana statutory law sets forth the formalities of commencement of prosecution (IND.CODE 35-34-1-1) as well as the form and requisite content of an indictment or information. IND.CODE 35-34-1-2. The latter provision requires in part that an indictment shall be "a plain, concise, and definite written statement of the essential facts constituting the offense charged". IND.CODE 35-34-1-2(d). However, several recent decisions construing the above-cited statutory provisions have proven more lenient, allowing for less specificity in criminal proceedings unless the indictment is so uncertain and indefinite that the nature of the charge cannot be ascertained. Blackburn v. State, (1973) 260 Ind. 5, 291 N.E.2d 686 (appeal dismissed, 412 U.S. 925, 93 S.Ct. 2755, 37 L.Ed.2d 152); Gilman v. State, (1979) 180 Ind.App. 483, 389 N.E.2d 327; Wilson v. State, (1975) 164 Ind.App. 665, 330 N.E.2d 356. Yet "the defendant must be given sufficient information to enable him to prepare his defense and to assure that he will not twice be put in jeopardy for the same crime". Blackburn, supra, 260 Ind. at 11, 291 N.E.2d 686.

Usually an information is sufficient if it tracks the language of the statute defining the offense to be charged. Merry v. State, (1975) 166 Ind.App. 199, 335 N.E.2d 249. However, when the statute defines the crime in general terms, then the information must specify the facts and circumstances which inform the accused of the particular offense "coming under the general description with which he is charged". Hamling v. United States, (1973) 418 U.S. 87, 117-118, 94 S.Ct. 2887, 2907-08, 41 L.Ed.2d 590, citing United States v. Hess, (1888) 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516. See State v. Bridgewater, (1908) 171 Ind. 1, 85 N.E. 715; Wilson, supra.

A recent Indiana Supreme Court decision exemplifies the above point of law. In Griffin v. State, (1982) Ind., 439 N.E.2d 160, Jimmy Griffin was charged with (and ultimately convicted of) theft-receiving stolen property. The information on which the defendant was tried simply stated that on December 6, 1980, in Rush County, Indiana, Griffin did knowingly receive the property of another person that had been the subject of theft and that this act constituted the felony of receiving stolen property. Griffin, supra, at 161. The Indiana Supreme Court determined that the information was totally inadequate:

"The first four counts of the original information described the stolen property and named the owners of the stolen goods, but the amended information alleged only that the defendant knowingly received stolen property. There was no description of the property at all or any indication as to the identities of the rightful owners.... [T]he fact remains that the defendant was tried on a charge which was totally inadequate in informing him about what he should defend against and his conviction also places him in jeopardy should he be tried again for these crimes because this Court cannot determine, from the information, what was the property that defendant received as stolen goods."

Griffin, supra, at 162.

State urges that Griffin can be distinguished from the case at hand, because in the former decision, "the potential exists for a confusing and misleading situation in which a defendant may unfairly not know what piece of property he is accused of possessing in violation of the statute". Appellee's brief, pp. 4-5. Conversely, continues the argument, the offense of tumultuous conduct violative of the disorderly conduct statute is "not subject to the same likelihood of confusion so as to imperil defendant in preparing his defense". Id. at 5.

We believe the State is creating a distinction without a difference here. Indeed, an information which merely charges the defendant with tumultuous conduct on a certain date, as in the instant case, is arguably even more inadequate than the indictment in the Griffin decision.

"Tumultuous conduct" is defined in IND.CODE 35-45-1-1 as "conduct that results in, or is likely to result in, serious bodily injury to a person or substantial damage to property". The definition itself illuminates the glaring deficiencies of the information in Gebhard's case: "tumultuous conduct" encompasses a large realm of activity which is potentially prohibited. Count III does not specify whether Gebhard's conduct endangered a person or property nor does it indicate which of his activities on November 2nd fell within the...