Newman v. State, 49A04-9606-CR-248
| Decision Date | 11 March 1997 |
| Docket Number | No. 49A04-9606-CR-248,49A04-9606-CR-248 |
| Citation | 677 N.E.2d 590 |
| Parties | Constance NEWMAN, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Defendant-Appellant Constance Newman appeals following her conviction for battery by body waste, a Class D felony 1; prostitution a Class D felony 2; and resisting law enforcement, a Class A misdemeanor 3.
We affirm.
Newman presents two issues for our review, which we restate as follows:
1. Whether double jeopardy bars Newman's convictions for battery by body waste and resisting law enforcement.
2. Whether the State presented sufficient evidence to support Newman's conviction of battery by body waste.
The facts most favorable to the verdict reveal that on September 25, 1995, thirty-year old Shakri Houran was driving his Pathfinder down Washington Street in Indianapolis when he saw Newman standing on the street. Houran stopped alongside Newman, and she asked him if he was "looking for a date." (R. 111). He responded that he was, and Newman got into his car. Newman directed Houran to a deserted alley near downtown. On the way, the two agreed that Newman would perform a sexual act with Houran in exchange for $20. Upon arriving in the alley, Newman performed the act, and Houran gave her a $20 bill. At the time, Newman knew and had known since June of 1993 that she was HIV-positive.
In the interim, Officer Kimberly Travis, an Indianapolis Police Department undercover vice officer, received a radio call that Constance Newman was seen standing on a street corner and then getting into a Nissan Pathfinder. Officer Travis was instructed to follow Houran's vehicle. Several undercover officers, including Officer Travis, located Houran's vehicle as he was driving Newman back to Washington Street. All of the cars in pursuit of Houran's vehicle were unmarked and all of the officers were undercover vice detectives in plain clothes. The officers made several unsuccessful attempts to stop Houran's vehicle. The officers identified themselves as police officers by flashing their badges. Eventually, a marked police car was summoned to pull in front of Houran's vehicle and physically preclude him from moving forward. At that time, the unmarked cars converged upon Houran's vehicle.
Houran was pulled from his vehicle and placed face-down on the ground. 4 Newman first locked herself inside the car and would not unlock the doors. Newman was immediately told that she was under arrest for prostitution. The police were familiar with Newman and her background. In particular, they were aware from prior contact with Newman that she had been diagnosed as HIV-positive. After Newman unlocked the car, she immediately began to protest her arrest and a physical struggle ensued. Newman became hysterical and was screaming, kicking, flailing her tear-covered face around and spitting in the direction of the officers. Her nose was running and she was covered with saliva and tears. The officers repeatedly warned her to turn her head away from them, but she refused. Eventually, the officers managed to restrain Newman in handcuffs.
Newman was charged in a two-part information with battery by body waste, a Class C felony; prostitution, a Class A misdemeanor; and resisting law enforcement, a Class A misdemeanor. In Part II of the information, Newman was charged with prostitution as a Class D felony due to two prior convictions of prostitution. 5 Following a bifurcated bench trial, the court found Newman guilty of battery as a lesser included Class D felony; prostitution as a Class D felony; and resisting law enforcement as a Class A misdemeanor. Newman was sentenced to three years for battery by body waste, one year for resisting law enforcement and three years for prostitution. The prostitution sentence was ordered to be served consecutive to the battery by body waste charge, and the battery by body waste and resisting law enforcement sentences were ordered to be served concurrently. Hence, Newman was sentenced to an aggregate sentence of six years. She now appeals. Additional facts will be provided as necessary.
Newman first contends that she was subjected to double jeopardy when she was convicted of battery by body waste and resisting law enforcement. Specifically, she argues that the evidence supporting these crimes arose from "the same set of operative facts." Appellant's Brief at 7. A defendant's right to not be put twice in jeopardy for the same offense arises from the United States Constitution and the Indiana Constitution. State v. Hurst, 674 N.E.2d 622, 624 (Ind.Ct.App.1996). Article I, section 14 of the Indiana Constitution provides that "[n]o person shall be put in jeopardy twice for the same offense." The Fifth Amendment to the Constitution of the United States provides that "nor shall any person be subject for the same offense to be twice put in jeopardy."
When an act or transaction violates two distinct statutory provisions, we engage in a two-part test. First, we must determine whether each provision requires proof of an additional fact which the other does not. Second, we must determine whether the two offenses are based on different factual allegations in the State's charging information. Wright v. State, 665 N.E.2d 2, 4 (Ind.Ct.App.1996) (citing Wethington v. State, 560 N.E.2d 496, 506-07 (Ind.1990)). The statutory provision setting forth the elements of battery by body waste provides that
A person who knowingly or intentionally in a rude, insolent, or angry manner places blood or another body fluid or waste on a law enforcement officer or a corrections officer identified as such and while engaged in the performance of official duties or coerces another person to place blood or another body fluid or waste on the law enforcement officer or corrections officer commits battery by body waste, a Class D felony.
Ind.Code 35-42-2-6(c). A person commits resisting law enforcement as a Class A misdemeanor when he "knowingly or intentionally ... forcibly resists, obstructs, or interferes with a law enforcement officer or a person assisting the officer while the officer is lawfully engaged in the execution of his duties as an officer." Ind.Code 35-44-3-3(a)(1). In this case, it is clear that each of the two charged offenses requires proof of an element which the other does not. Therefore, battery by body waste and resisting law enforcement are not the same for double jeopardy purposes.
However, double jeopardy analysis does not end with an evaluation and comparison of the statutory provisions. Rather, the factual bases alleged by the State in the information or indictment must also be examined. Delahanty v. State, 658 N.E.2d 660, 662 (Ind.Ct.App.1995). It is alleged in Count I of the information that
Constance M. Newman, on or about September 25, 1995, did knowingly in a rude, insolent, or angry manner place saliva on K. Travis, R. Henry, and V. Huber law enforcement officers with the Indianapolis Police Department while said officers were engaged in the performance of their official duties, and Constance M. Newman knew that she is infected with HIV[.]
(R. at 16). It is alleged in Count III of the information that
Constance M. Newman, on or about September 25, 1996, did knowingly forcibly resist...
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