Sendelweck v. State

• Decision Date: 27 November 2012
• Docket Number: No. 2011–KM–01190–COA.,2011–KM–01190–COA.
• Citation: 101 So.3d 734
• Parties: Steven SENDELWECK a/k/a Steven R. Sendelweck a/k/a Steven Sendelweek a/k/a Steven Sendelwick, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

101 So.3d 734

Steven SENDELWECK a/k/a Steven R. Sendelweck a/k/a Steven Sendelweek a/k/a Steven Sendelwick, Appellant

v.STATE of Mississippi, Appellee.

No. 2011–KM–01190–COA.

Court of Appeals of Mississippi.

Nov. 27, 2012.

Clarence McDonald LeLand, Jackson, attorney for appellant.

Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.

Before GRIFFIS, P.J., CARLTON and FAIR, JJ.

CARLTON, J., for the Court:

¶ 1. On September 9, 2009, the Brandon Municipal Court found Steven Sendelweck guilty of disorderly conduct and resisting arrest. Sendelweck appealed his convictions and sentences. After a de novo trial, the County Court of Rankin County affirmed Sendelweck's conviction for resisting arrest, but dismissed the disorderly-conduct conviction and sentence. The county court judge sentenced Sendelweck to a $500 fine and a suspended jail term of sixty days, with two years of unsupervised probation. Sendelweck then appealed his conviction and sentence to the Rankin County Circuit Court, which affirmed the county court's findings and judgment. Sendelweck now appeals to this Court. Finding no error, we affirm.

FACTS

¶ 2. On July 16, 2009, Officer Michael Case of the Brandon Police Department received a call requesting that he follow up on a complaint about dogs entering a garage in Brandon, Mississippi, and pulling out items. Officer Case spoke with the caller, who informed him that the dogs in question belonged to a family residing at 121 Bentley Drive in Brandon. Officer Case drove to the address and knocked on the door.

¶ 3. Officer Case stated in his police report that several children and their babysitter answered the door. Officer Case asked the babysitter if two beagles lived in the house, and the babysitter confirmed that they did. Officer Case explained that the babysitter needed to keep the dogs in the backyard, or he would be required to take the dogs. The babysitter responded, “Yes, sir,” and Officer Case left the house without incident. Approximately fifteen minutes later, Officer Case's supervisor called, informing Officer Case that an “irate individual” called to make complaint about Officer Case's handling of the situation. The supervisor advised Officer Case that dispatch was sending a sergeant to talk to the individual's husband, and that Officer Case should stay away from the area until the matter was resolved.

¶ 4. Sergeant Allen Parfait arrived at 60 Terrapin Hill in Brandon to interview the irate caller's husband. The caller's husband, later identified as Sendelweck, explained that on the day in question, his children were at home with the babysitter while he cut his mother's grass. While cutting the grass, Sendelweck received a call from his daughter regarding the encounter with Officer Case. Sendelweck then called his wife and asked her to call the Brandon Police Department and ask them to send the officer to his mother's house so that he could sort out the situation.

¶ 5. According to Sergeant Parfait's testimony, upon arriving at the residence, he noticed Sendelweck holding an edger and walking toward him from a yard across the street. Sendelweck dropped the edger and approached Sergeant Parfait, pointed his finger in his face, and asked Sergeant Parfait if he was the dog catcher. Sergeant Parfait later testified that Sendelweck's finger was “about a half inch” from his face, and that Sendelweck was irate. Sergeant Parfait explained that he was not with animal control, but that he was there to take a report documenting the complaint. Sendelweck informed Sergeant Parfait that he was not going to tell him anything and that he needed to get the dog catcher. Sergeant Parfait described Sendelweck's behavior as “threatening” and “combative,” and he testified that Sendelweck was “gritting his teeth” while talking and was “completely irate.” Sergeant Parfait explained that he thought, based on Sendelweck's behavior, that “at any time ... we was fixing to fight.”

¶ 6. Sergeant Parfait asked Sendelweck to step back and calm down. Sendelweck continued to state that he was not going to give Sergeant Parfait “anything,” and that he wanted the dog catcher. Sergeant Parfait explained that he was not going to bring animal control to the scene, and Sendelweck responded by saying “get the f* * *ing dog catcher over there now.”

¶ 7. Sergeant Parfait continued to warn Sendelweck to calm down and back away, explaining that failure to comply with the request “to quit threatening [Sergeant Parfait] in a threatening manner, cut out all the cussing” would result in Sendelweck's arrest for disorderly conduct. Sergeant Parfait stated the Sendelweck responded by claiming “he wasn't going no f* * *ing where” with the officer. Sergeant Parfait then placed Sendelweck under arrest and pulled out his handcuffs. Sergeant Parfait explained that Sendelweck began walking away, so he grabbed Sendelweck's wrist. Sendelweck pulled his arm out of Sergeant Parfait's grasp. Sergeant Parfait then warned Sendelweck that he would be sprayed with pepper spray, and Sendelweck retorted that he “ain't going f* * *ing nowhere.” Sergeant Parfait sprayed Sendelweck, and the spray hit Sendelweck's shoulder and neck. Sergeant Parfait sprayed once more, this time hitting Sendelweck's face, allowing Sergeant Parfait to place handcuffs on Sendelweck. Sergeant Parfait then called for his supervisor, and requested that American Medical Response (AMR) come to the scene to flush Sendelweck's eyes. Sergeant Parfait testified that Sendelweck continued cursing at him while under arrest. He further testified that Sendelweck used profanity toward AMR personnel after they arrived on the scene and flushed his eyes. Sergeant Parfait testified that he transported Sendelweck to the police department for booking, charging him with disorderly conduct, failure to comply with the order of a law-enforcement officer, and resisting arrest.

¶ 8. Sendelweck, however, disputed this version of the events, claiming that Sergeant Parfait immediately began cursing at him. Sendelweck alleged that Sergeant Parfait called him “a long-haired piece of sh*t dopehead mother f* * * er living with his mama and making her pay [his] bills.” Sendelweck testified that he responded by saying, “Well, look dude, I want to get the dog catcher here too so we can get this thing straightened out rather than file one report here, one report there.” Sendelweck testified that his statement angered Sergeant Parfait, who then informed Sendelweck, “I am not dude, I am Sergeant Allen Parfait.” Sendelweck again responded that he would like to get the “f* * *ing dog catcher” to the scene. Sendelweck claims that Sergeant Parfait then reached for his handcuffs and pepper spray. Sendelweck stated that Sergeant Parfait failed to explain that he intended to place Sendelweck under arrest; instead, he grabbed Sendelweck's arm. Sendelweck admitted that he pulled his arm away, but claimed that he never threatened Sergeant Parfait until the officer sprayed him with pepper spray for “no reason.” Sendelweck claimed Sergeant Parfait sprayed him while Sendelweck's hands were in front of him, offering to let Sergeant Parfait handcuff him. Sendelweck admitted that he threatened Sergeant Parfait after this incident, and claimed that Sergeant Parfait sprayed him a second time after handcuffing him.

¶ 9. Officer Lee Barton and Lieutenant Richard Fowler both arrived on the scene. Officer Barton later testified that when he arrived on the scene, “Sergeant Parfait was walking towards [Sendelweck], who was walking away from [Sergeant] Parfait.” Officer Barton explained that by the time he arrived on the scene, Sergeant Parfait had already arrested and handcuffed Sendelweck. Officer Barton testified that during this time, Sendelweck was “yelling at [Sergeant Parfait]” and “cussing.”

¶ 10. Lieutenant Fowler testified that when he arrived on the scene, Sergeant Parfait had already arrested and handcuffed Sendelweck. Lieutenant Fowler explained that Sendelweck “was sitting on the ground ... trying to get up.” He described Sendelweck as “belligerent” and “irate.”

¶ 11. On September 9, 2009, the Brandon Municipal Court found Sendelweck guilty of disorderly conduct and sentenced him to a suspended sentence of six months in jail, a $500 fine, and an assessment of $91. The court also found Sendelweck guilty of resisting arrest and sentenced him to a suspended sentence of six month in jail, a $497 fine, and an assessment of $91. On September 24, 2009, Sendelweck filed a notice of appeal from the municipal court to the County Court of Rankin County.

¶ 12. On June 18, 2010, the county court judge heard the appeal de novo. During the bench trial, the judge heard testimony from Lieutenant Fowler, Officer Case, Sergeant Parfait, and Officer Barton, as well as Sendelweck. At the conclusion of the State's case, the defense moved to dismiss the disorderly-conduct charge, arguing that the charging affidavit “charged [Sendelweck] only for refusing to stop yelling and cursing, which ... is not an illegal act in ... Mississippi.” The county court judge agreed and dismissed the charge, finding that the affidavit charging Sendelweck with disorderly conduct to be defective “because it focused on the speech, and not [Sendelweck's] conduct.” The charging affidavit reflects that Sendelweck, in violation of Mississippi Code Annotated section 97–35–7(1) (Rev.2006), “did willfully and unlawfully refuse to comply with the request of [Sergeant] Parfait, a law enforcement officer, who had the authority to then and there arrest any person for a violation of the law by refusing to stop yelling and cursing.” The county court judge stated that “the statute, as charged in this case, could not be applied to the verbal actions of [Sendelweck] as stated in the charging affidavit.”

¶ 13. However, the county court judge explained that he believed, based on the testimony presented, Sendelweck “clearly violated” section...