Johnson v. State
| Decision Date | 07 May 2001 |
| Docket Number | No. 10A01-0007-CR-240.,10A01-0007-CR-240. |
| Citation | 747 N.E.2d 623 |
| Parties | Bartholomew J. JOHNSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Jeffrey D. Stonebraker, Chief Public Defender, Jeffersonville, IN, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Robin Hodapp-Gillman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Bartholomew J. Johnson appeals his convictions for resisting law enforcement and disorderly conduct. Specifically, he argues that the trial court improperly excluded a 911 tape and erred by admitting testimony regarding the amount of damages sought by the defendant in a related civil suit. He argues further that his convictions are not supported by sufficient evidence. Because we find that no error occurred in the exclusion of the 911 tapes or the admission of the damage amount and sufficient evidence supports his resisting arrest conviction, we affirm. However, because we find he engaged in political speech, we reverse his disorderly conduct conviction.
The facts most favorable to the evidence reveal that on the morning of April 2, 1998, Clark County Animal Control Officer Chester Copeland responded to a call regarding a german shepherd chasing children at a school bus stop. Clark County Police Officers Kevin Sims and Scott Johns accompanied Officer Copeland on his investigation of the complaint. Because the complainant indicated that the german shepherd belonged to Johnson, the officers drove to Johnson's home. Officers Copeland and Sims spoke with Sherry Smothers, Johnson's wife at the time, about a german shepherd who was on her porch. She told the officers that she owned the dog. While they were talking, another dog approached the house. Smothers informed the officers that the second dog did not belong to her, but had belonged to a neighbor who had died and others in the neighborhood had begun to feed the stray dog. Officer Copeland caught the stray dog and took it to the animal shelter.
Later that same day, Johnson and Smothers visited the animal shelter. In a loud and belligerent manner, Johnson told Officer Copeland that he owned the stray dog, which had been removed, from his property earlier that day. Eventually, Smothers convinced Johnson to leave the shelter.
After Johnson and Smothers departed, Officer Copeland informed Officer Johns that Johnson now claimed to own the stray dog. As a result, Officer Johns returned to the Johnson home in order to issue them a dog restraint violation.
When Officer Johns arrived at the Johnson home, Johnson came to the door of his trailer. Officer Johns explained why he was there. In response, Johnson called Officer Johns a "mother f_____," told him to get the "f___" off of his land, and slammed the door in his face. Record at 324. Officer Johns returned to his car and called for backup. Smothers then appeared on the porch and motioned for Officer Johns to return to the porch. Officer Johns joined Smothers on the porch and tried to explain the citation to her. At some point during their discussion, Johnson reappeared in the doorway to the trailer and started screaming and hollering at the officer.
Record at 332. During this exchange, the officers warned Johnson several times to calm down so they could do their job and that if he did not calm down, they would arrest him for disorderly conduct. Johnson called the sheriff's department, screamed for Smothers to take the telephone and talk with the Sheriff. When she did not accept the phone, he threw the phone towards her. The phone landed on the ground, Officer Johns picked up the phone and briefly talked with the Sheriff. After Officer Johns explained the situation, the Sheriff told him to issue the citation as quickly as possible and leave.
Following the phone call, Johnson continued to yell and disrupt the issuance of the citation. As Johnson stood in the doorway to his trailer, Officer Johns grabbed his arm in order to arrest him. Johnson jerked away from the officer and ran into the trailer. Officer Johns followed Johnson into the trailer and a struggle ensued. After spraying Johnson with pepper mace two times, the officers were able to handcuff the defendant. An ambulance was called for because Johnson began experiencing chest pains and Smothers experienced a seizure.
The State charged Johnson with resisting law enforcement and disorderly conduct. In a motion in limine, the trial court ruled that evidence of Smothers' medical condition could not be admitted into evidence. The trial court also ruled that recordings of two 911 telephone conversations were inadmissible because the recording was hard to understand and contained information regarding Smothers' health condition. In addition, the trial court ruled that the amount of damages sought by Johnson and Smothers in a related tort claim was inadmissible. However, the trial court ruled that testimony that the amount was "substantial" would be allowed.
Following a jury trial, Johnson was convicted of disorderly conduct and resisting law enforcement. Johnson filed a motion for judgment notwithstanding the verdict. The trial court denied Johnson's motion. This appeal followed.
Johnson challenges his convictions for Resisting Law Enforcement and Disorderly Conduct. He alleges three bases upon which his convictions should be overturned. First, he asserts that the trial court erred by excluding a 911 tape. Second, he contends that the trial court erred by admitting the amount of damages he sought in a related civil suit. Third, he maintains that his convictions were not supported by sufficient evidence. We address each of these arguments in turn.
Johnson argues that the trial court erred by excluding two 911 tapes and by admitting evidence regarding the amount of money sought in a civil suit. A trial court has broad discretion in ruling on the admissibility of evidence during trial. Robinson v. State, 720 N.E.2d 1269, 1271 (Ind.Ct.App.1999). We will only disturb a trial court's ruling on the admissibility of the evidence upon a showing of an abuse of discretion. Id.
Johnson contends that the trial court erred in excluding two 911 telephone conversations which were recorded on an audiotape. During trial, Johnson attempted to have the 911 tapes admitted into evidence. Johnson argued that the tapes were relevant to refute the testimony of Officer Johns and Officer Sims that Johnson argued and yelled continuously while Officer Johns tried to explain the citation to Smothers. In particular, Johnson claims the tapes disclose that there was no yelling in the background when 911 was called. The trial court listened to the tapes at trial outside the hearing of the jury. In making its ruling, the trial court focused on the discussion in the foreground of the tape, not the background, which would have included any yelling by the defendant. The trial court excluded the tapes because the conversation in the foreground focused on the medical conditions of Smothers and a motion in limine covered this information. Thus, the trial court excluded the tapes.
Johnson has waived this issue on appeal because he failed to provide the tapes or a transcript of the tape recordings in the record. It is the appellant's duty to provide the reviewing court with an adequate record for review. Adams v. State, 539 N.E.2d 985, 988 (Ind.Ct.App.1989). An appellant waives review of his claim if he fails to provide the appellate court with an adequate record for review of his claim. Id. Here, because Johnson failed to provide us with the tapes or a transcript of the discussions presented on the tapes, we do not have a complete record before us. Thus, this argument has been waived.
Johnson also challenges the trial court's admission of his testimony regarding the amount of money he sought in a tort claim. Before trial, the trial court ruled that testimony regarding the actual amount of damages sought by Johnson and Smothers in their tort claim was inadmissible. However, the trial court ruled that testimony which described the damages sought as a "substantial" amount was admissible.
During Johnson's cross-examination, the following colloquy occurred:
Record at 714. Johnson objected to this line of questioning because the trial court had previously determined that the actual amount of money would not be admitted into evidence. Record at 714. The trial court overruled the objection, noting:
If the Defendant wants to quibble as to whether $4 million and $3 million are substantial sums are [sic] not in a minute I'm going to let the State refer to it. I cannot see that there should be any quibbling about this. I don't even think it would be that terrible to let the Jury know the whole amount. I just think it's a bit off the mark. As a matter of relevancy I wanted to stay [sic] substantial sum but I don't care for this quibbling about whether millions of...
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