Hopping v. State, 15A04-9307-CR-264

• Decision Date: 31 January 1994
• Docket Number: No. 15A04-9307-CR-264,15A04-9307-CR-264
• Citation: 627 N.E.2d 875
• Parties: Frank HOPPING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. 1 .
• Court: Indiana Appellate Court

Page 875

627 N.E.2d 875

Frank HOPPING, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 15A04-9307-CR-264 ¹.

Court of Appeals of Indiana,

First District.

Jan. 31, 1994.

William R. Pfister, Lawrenceburg, for appellant-defendant.

Pamela Carter, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

BAKER, Judge.

It is hard to imagine that in 1994 one would mount a scurrilous ancestral attack on a judge, verbally abuse court personnel, and then claim his actions do not constitute contempt of court.

Appellant-defendant Frank Hopping challenges his conviction for two counts of direct criminal contempt. Hopping contends that his actions did not constitute direct contempt because they did not disrupt a judicial proceeding. ² We affirm.

FACTS ³

At approximately 11:00 a.m. on July 8, 1993, Hopping entered the Dearborn County Court office seeking to file seven small claims complaints. Hopping, a seventy-one-year-old business man, wanted to have his cases set for hearing all on the same day. However, bailiff Patricia Ritzmann informed Hopping that because his cases involved landlord-tenant disputes they were considered contested and thus, only one could be set per day. When Hopping demanded that his cases all be set for the same day, Ritzmann asked Judge G. Michael Witte, who was in his chambers working on other court matters, whether Hopping's cases could be scheduled on the same day. Judge Witte answered in the negative affirming the court's scheduling policy to set only one contested case per afternoon and to set multiple cases only if they were uncontested.

When Ritzmann informed Hopping of Judge Witte's response, he became defiant, belligerent, loud, boisterous, obnoxious, and uncontrollable, insisting that his cases be heard on the same date. Upon hearing Hopping verbally abuse court personnel, Judge Witte explained the court's scheduling policy to Hopping himself. Thereafter, Hopping was asked to leave but refused and began verbally assaulting Judge Witte. Hopping threatened to publish an advertisement in the newspaper alleging Judge Witte was a drug user and a drug dealer and that court personnel treated him unfairly.

Interpreting Hopping's allegations as an attack upon the integrity of the judge and the court and as an attempt to intimidate the court into scheduling his cases as he demanded, Judge Witte ordered Hopping under arrest for contempt of court and ordered him into the courtroom. Hopping went into the courtroom, but quickly exited informing Judge Witte that he was a busy man with more important things to do. Hopping ignored Judge Witte's repeated orders to return to the courtroom.

When Deputy Sheriff Michael Horton arrived, he escorted Hopping back into the courtroom. At approximately 11:10 a.m., Judge Witte held a contempt hearing advising Hopping that he was being held in direct criminal contempt for his verbal abuse attacking the reputation and integrity of the court and Judge Witte, his attempts to intimidate court personnel into scheduling his cases as he saw fit, and his failure to follow the judge's orders. Hopping denied the allegations. Judge Witte found Hopping guilty and sentenced him to thirty days in the Dearborn County Jail.

As Deputy Horton led Hopping out of the courtroom, he exclaimed "[w]ell, I had a lot of friends killed in World War II by the Japanese. It might've been some of [Judge Witte's] relation, you don't know." Record at 44-45. Judge Witte, who is of Japanese-American descent, ordered Hopping to have a seat in the courtroom for another contempt hearing based upon these comments. When Judge Witte gave him an opportunity to respond, retract, or apologize, Hopping denied making the statements. Judge Witte then found Hopping guilty of a second count of direct criminal contempt. Judge Witte sentenced Hopping to thirty days in jail to be served consecutively to the thirty days imposed for his first conviction.

Hopping was taken into custody immediately by Deputy Horton. He was incarcerated in the Dearborn County Jail on July 8, 1993. On July 16, 1993, Judge Witte denied Hopping's request to be released on bail pending his appeal. However, on July 22, 1993, this court granted Hopping's request to be released on bail pending appeal.

DISCUSSION AND DECISION

Hopping challenges both contempt convictions. In cases of direct contempt we accept as true the statement entered of record by the trial court of the conduct constituting the contempt. Russell v. State (1981), Ind.App., 428 N.E.2d 1271, 1274 However, we will examine the record, if necessary, to determine whether the conduct alleged to be contemptuous does, in fact, constitute contempt. Id. We will not interfere with the trial court's judgment unless it appears that the judgment is wrong. Id.

Specifically, Hopping contends that his actions did not disrupt a court proceeding as required by IND.CODE 34-4-7-1. I.C. 34-4-7-1 provides that any person who disturbs the business and proceedings of a court shall be deemed guilty of direct contempt. However, statutory definitions of what constitutes direct criminal contempt are not all-inclusive, but merely recognize the court's power to cite and punish for contempt. Skolnick v. State (1979), 180 Ind.App. 253, 388 N.E.2d 1156, 1162, cert. denied, 445 U.S. 906, 100 S.Ct. 1085, 63 L.Ed.2d 323 (1980). Courts have the inherent power to determine what other acts or conduct may constitute direct or indirect contempt. Andrews v. State (1987), Ind.App., 505 N.E.2d 815, 830. ⁴

Although direct contempt usually refers to conduct directly interfering with court proceedings while court is in session, it includes any act committed in the presence of and with knowledge of the court which manifests a disrespect for and defiance of a court. Skolnick, 388 N.E.2d at 1162-63. ⁵ Direct contempt may result from an act committed within the personal knowledge of the judge, even though it does not disrupt a court proceeding. See Andrews, at 831 (defendant held in direct criminal contempt for violating judge's order to remain in the courtroom after proceeding had ended where the judge returned to find defendant had left).

In the present case, Hopping became defiant, belligerent, obnoxious, and uncontrollable with Judge Witte and his staff when they informed him that it was against court policy to schedule cases in the manner in which he demanded. He refused to comply with Judge Witte's orders. He then mounted a scurrilous ancestral attack on Judge Witte. Hopping's actions were committed in the presence of and with the knowledge of Judge Witte. Hopping attacked the integrity of the court and attempted to intimidate court personnel. His actions disrupted court personnel preventing them from conducting any other court activity. Moreover, Hopping's conduct showed a blatant disrespect for and defiance of the court. Judge Witte correctly held Hopping in direct criminal contempt for this contemptuous behavior.

Judgment affirmed and remanded to the trial court to order Hopping incarcerated to serve the remainder of his sentence.

ROBERTSON, J., concurs.

RILEY, J., dissents with separate opinion.

RILEY, Judge, dissenting.

I respectfully dissent. While the majority has correctly said that a person who "would mount a scurrilous ancestral attack on a judge and verbally abuse court personnel" would be engaging in contemptuous conduct, that particular conduct should not be considered direct criminal contempt of the court. At the time Hopping was held in direct criminal contempt, there was no scheduled hearing, he was not in the courtroom, and the court was not in session. Thus, the judgment of guilt for direct contempt was not supported by the facts and should be reversed.

Direct contempt usually refers to conduct directly interfering with court proceedings while court is in session. IND.CODE 34-4-7-1 and I.C. 34-4-7-2. Such conduct must generally take place in or immediately adjacent to the courtroom, while court is in session, so that the judge has personal knowledge of such conduct in his official capacity. LaGrange v. State (1958), 238 Ind. 689, 153 N.E.2d 593, 596. It could best be described as an act committed in the presence of the court or so near it as to interrupt its proceedings while it is in session. No formal charges are filed and no evidentiary hearing is held in a direct contempt proceeding. The findings must be beyond a reasonable doubt.

Indirect contempt is the willful disobedience of any lawfully entered court order of which the offender has notice. I.C. 34-4-7-3. Indirect contempt arises from conduct not occurring in the presence of the court, such as failure of a party to obey a court order or process, whereas direct contempt is committed in the immediate view or presence...