Odem v. State, 2002-KM-01689-COA.
| Decision Date | 07 September 2004 |
| Docket Number | No. 2002-KM-01689-COA.,2002-KM-01689-COA. |
| Citation | 881 So.2d 940 |
| Parties | Larod ODEM, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Michael E. Robinson, attorney for appellant.
Office of the Attorney General by Charles W. Maris, attorney for appellee.
EN BANC.
GRIFFIS, J., for the Court.
¶ 1. Larod Odem was convicted of two counts of misdemeanor resisting arrest and was sentenced to serve two consecutive six month sentences, with the second six month sentence suspended. On appeal, he states the following issues:
Finding no error, we affirm.
FACTS
¶ 2. On Saturday, February 5, 2000, Odem loaned his vehicle to his friend Christopher Harris. Harris was parked at a Canton car wash when officers from the Madison County Sheriff's narcotics unit approached Harris and others. Harris was arrested and charged with loitering and possession of a concealed weapon. Odem's vehicle was impounded.
¶ 3. Later that evening, Odem went to the Madison County Sheriff's Office to claim his vehicle. Deputy Sheriff Mark O'Cain responded to a dispatcher's call to come to the lobby of the sheriff's department to deal with an "irate" person in the lobby. O'Cain arrived and began a conversation with Odem. O'Cain testified that Odem was looking for his vehicle, and he was "very irate." O'Cain contacted Lieutenant James R. Marlett, the supervisor of the narcotics unit, to resolve Odem's concerns. Marlett instructed him to tell Odem to come to the sheriff's department on Monday morning with proof of ownership of the vehicle. O'Cain described Odem's demeanor as follows: Odem complied and left.
¶ 4. On Monday morning, as instructed, Odem returned to the sheriff's department. Odem asked for Lieutenant Marlett, and he identified himself as the owner of the vehicle. Odem demanded the return of the vehicle.
¶ 5. Lieutenant Marlett testified that he explained the procedure that Odem would have to follow to retrieve the vehicle. Marlett advised Odem that he would have to provide "proof of ownership, a title, registration, something showing ownership of the vehicle before we can release this vehicle to you." Odem told Marlett that the ownership papers were in the glove compartment of his vehicle and that the people at the impound lot would not let him retrieve them. Marlett offered to call the impound lot to allow Odem access to the vehicle to retrieve the ownership papers.
¶ 6. Upon learning that he would have to go back to the impound lot to retrieve the papers, Odem became agitated. Marlett provided the following testimony about the incident:
Marlett then informed Odem that he was under arrest for disorderly conduct.
¶ 7. Marlett claims that when he went around his desk to place Odem in handcuffs Odem shoved him, and he fell over his desk. As Odem was trying to leave, Deputy Sheriff Randall Tucker came to help Marlett and a scuffle ensued. Eventually, three deputies subdued Odem and placed him in handcuffs. Both Marlett and Tucker received minor scrapes and abrasions.
¶ 8. Deputy Tucker's testimony corroborated Lieutenant Marlett version of what happened. Tucker testified that he heard a loud voice and he went to Marlett's office. He testified that Odem told Marlett that he was a "sick mother f* * * er and that he was tired of being harassed by all these officers and, that we were sick and full of shit." Tucker then testified that Marlett told Odem that if Odem "kept on with those types of combative gestures that he would be placed under arrest."
¶ 9. Christopher Harris testified for Odem. He stated that he "vaguely remembered" the conversation between Marlett and Odem. Harris testified that everything was "very civil," and Odem's tone of voice was "calm, like a concerned parent about his child at school." Harris described Marlett as vulgar and claimed that Marlett had the mean demeanor and combative behavior. Harris described the "whole incident" as "very hostile."
¶ 10. Odem then took the stand in his own defense. Odem testified that Marlett began their conversation by asking a number of questions about the weapon that was under the front seat, Odem's employment and the reason he had a Scott County tag on the vehicle when he lived in Madison County. Then, Odem testified to the following:
¶ 11. Odem was indicted on two counts of assault on a law enforcement officer, pursuant to Mississippi Code Annotated Section 97-3-7 (Supp.2003). The jury was instructed on simple assault on a law enforcement officer and the lesser-included offense of resisting arrest. The court also granted the following defense instruction:
¶ 12. The jury returned a guilty verdict on two counts of resisting arrest.
DISCUSSION
A. Whether Odem reasonably resisted an unlawful arrest and the charges should have been dismissed.
B. Odem's right to free speech was violated.
¶ 13. Odem's argument of the first two issues intertwined. Odem argues that he was unlawfully arrested for his spoken words alone in violation of his right to freedom of speech guaranteed by the First Amendment to the United States Constitution. Thus, we address the first two issues together.
¶ 14. Odem begins his argument with the following statement of the appropriate standard of review:
The standard of review of a trial judges denial of a motion to dismiss is substantial or manifest error. Alexander v. Brown, 793 So.2d 601, 603 (Miss.2001). The evidence is to be considered fairly between the parties. Id.
Unfortunately, Alexander is not controlling precedent for the case now before us. Alexander was a case in chancery court, not a criminal case. The supreme court discussed the different standard of review for a M.R.C.P. Rule 41(b) involuntary dismissal from the standard for a motion for directed verdict. Alexander, 793 So.2d 601, 603(¶ 6). Alexander is simply not applicable here.
¶ 15. Instead, in Roberson v. State, 595 So.2d 1310, 1320 (Miss.1992), the supreme court held:
In considering motions to dismiss or motions for directed verdict on review, all evidence introduced by the prosecution is accepted as true, together with any reasonable inferences that may be drawn from that evidence, and, if there is sufficient evidence to support a verdict...
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