Smith v. State, 02A05-0303-CR-105.

• Decision Date: 04 February 2004
• Docket Number: No. 02A05-0303-CR-105.,02A05-0303-CR-105.
• Parties: Kevin E. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

802 N.E.2d 948

Kevin E. SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 02A05-0303-CR-105.

Court of Appeals of Indiana.

February 4, 2004.

Stanley L. Campbell, Fort Wayne, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Kevin Smith was convicted after a jury trial of stalking, a Class C felony;¹ intimidation, a Class D felony;² and criminal recklessness, a Class D felony.³ He raises five issues on appeal, which we consolidate and restate as:

1. Whether his right to a speedy trial was violated when the trial court granted a continuance because the father of a State's witness had died;

2. Whether telephone messages, without more, may support a conviction of stalking; and

3. Whether there was sufficient evidence to support all three convictions.

We affirm.

FACTS

At different times on August 21, 2001, Smith drove past the home of Michelle Aguirre, where his former girlfriend Kimberly Chivington was visiting. He waved a gun out the car window as he drove past. The last time Smith drove by, Chivington and Aguirre heard a banging sound and Aguirre saw smoke where the noise had originated. Later, as Chivington and Aguirre sat on the porch, Smith approached the house carrying a gun. Chivington was afraid of Smith, and she ran into the house and locked the door. Aguirre spoke to Smith and obtained his gun. She gave it to Chivington, who hid it. Chivington then returned to the porch and she, Aguirre, and Smith remained there until police arrived.

Several neighbors heard one or more gunshots during the incident and one neighbor saw Smith fire a gun. The 911 center received six calls reporting gunshots. Police found a car that matched the description the callers gave. It was registered to Smith's mother and had shell casings inside. They found Smith's gun where Chivington had hidden it.

The officers found Smith and arrested him for public intoxication. He fought with police and tried to escape. He spat on police and tried to kick out the police car window after he had been restrained. Smith was taken to a hospital, where he arrived kicking, screaming and yelling. He kicked a nurse in the chest and spat blood and saliva at hospital workers.

Smith was taken to the Allen County Lock-up, where he told Officer Adams, one of the arresting officers, he would be "looking out for him with his 7.62" (Tr. at 364), referring to the ammunition used in an assault rifle. After Smith was released on bond, he left Officer Adams eight or nine voice mail messages. He identified himself on all but one. The messages included obscenities and threats on Officer Adams' life. Officer Adams feared for his safety and that of his family.

Also in the summer of 2001, Smith encountered Officer Tague in a restaurant where the officer was providing security. Smith told Officer Tague he had been leaving messages for Officer Adams. Officer Tague told Smith he would be charged with intimidation and harassment if he did not stop calling. Smith then began leaving voicemail messages for Officer Tague. The messages contained obscenities and language such as "dead nigger" and "I got here a 9-millimeter, 44-AR-15, 30-06 with a scope nigger, a 37 sawed off shot gun[.]" (State's Exhibit 39.) Officer Tague feared for his safety and that of his family.

Smith was later arrested on outstanding warrants and charged with a number of offenses in three separate cause numbers, including the three charges at issue in the appeal before us. He requested a jury trial in one of the three causes on October 2, 2001, and in the other two on October 12, 2001. His jury trial was set for November 27, 2001, then rescheduled due to court congestion for December 18, 19, and 20, 2001. On December 13, 2001, the State moved to continue Smith's trial date because the father of a police officer who was a State's witness had died. The trial court granted the continuance. Smith's trial was finally conducted the following October.

DISCUSSION AND DECISION

1. Speedy Trial

Ind.Crim. Rule 4(B)(1) provides in pertinent part: "If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion[.]" Any exigent circumstances may warrant a reasonable delay beyond the limitations of Crim. R. 4, due deference being given to the defendant's speedy trial rights under the rule. Loyd v. State, 272 Ind. 404, 409, 398 N.E.2d 1260, 1265 (1980), cert. denied 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105 (1980). The reasonableness of such delay must be judged in the context of the particular case, and the decision of the trial judge will not be disturbed except for an abuse of discretion. Id. The purpose of Crim. R. 4(B) is to assure a speedy trial. Id. at 410, 398 N.E.2d at 1266. This purpose is well served if the State must bring a defendant to trial within seventy days or show compelling reasons for the failure to do so. Id. The rule was designed to assure criminal defendants speedy trials, not to provide them with a technical means of avoiding trial. Id.

In Loyd, the deputy prosecutor who was to try the case learned two days before the scheduled trial that his father had just suffered a massive heart attack and that his mother had terminal cancer. Our supreme court noted "[i]n addition to the emotional disability likely to have been produced by such shocking news and rendering a brief continuance reasonable, it was also necessary for him to attend to the emergency needs of his parents[.]" Id. No other attorney in the prosecutor's office could reasonably have prepared for trial upon such short notice. The supreme court determined the trial judge acted properly in granting the continuance and denying the motion for discharge. Id.

On December 13, 2001, the State moved to continue Smith's trial date because the father of a police officer who was a State's witness had died. The trial court granted the motion. We note initially that Smith did not make a motion for discharge prior to trial. He has therefore waived this allegation of error on appeal. Lockhart v. State, 671 N.E.2d 893, 897 (Ind.Ct. App.1996).

Notwithstanding the waiver, the trial court did not abuse its discretion in granting the State's motion for a continuance. Crim. R. 4(B)(1) does require a defendant to be brought to trial within seventy days of a motion for a speedy trial. However, Crim. R. 4(D) provides for an extension of this seventy-day period. The time within which a defendant who has demanded a speedy trial may be timely tried may be extended by an additional ninety days⁴ if the court is satisfied there is State's evidence that cannot be had on the timely trial date but that will be available within ninety days. Griffin v. State, 695 N.E.2d 1010, 1013 (Ind.Ct.App.1998).

In Griffin, a State's witness was unavailable for a trial date sixty-nine days after the speedy trial motion because of a previous arrangement to be out of the country. The trial court granted the State's motion and reset the trial date for August 23, 1995 (ninety-eight days after the speedy trial motion). We determined that because the State did not cause the absence of the witness, the trial court was within its power to extend the speedy trial period by ninety days. Id. A new trial set for twenty-eight days after the expiration of the seventy-day period was therefore timely.

In Griffin, the reason for the witness's absence from the country was unclear. However, we noted our supreme court had previously held a vacation abroad is sufficient justification for invoking the 90-day extension under the rule. We further noted the extension may be obtained as long as the unavailability of the witness is due to no fault of the State. 695 N.E.2d at 1013 n. 2.

In the case before us the State's motion was premised on the police officer's unavailability⁵ due to the death of his father, whose funeral was the day before Smith's trial. In light of the standards articulated in Griffin and Loyd, we cannot say the trial court's grant of the State's motion was an abuse of discretion.

2. Stalking

Smith's stalking convictions were based on voicemail messages left for two police officers, and Smith asserts telephone communications, without more, cannot amount to either the "impermissible contact," Ind.Code § 35-45-10-3, or "harassment," Ind.Code § 35-45-10-2, the State must prove to convict him of stalking. Stalking is defined as "a knowing or an intentional course of conduct involving repeated or continuing harassment of another person that would cause a reasonable person to feel terrorized, frightened, intimidated, or threatened and that actually causes the victim to feel terrorized, frightened, intimidated, or threatened." Ind.Code § 35-45-10-1. "Harassment" means conduct directed toward a victim that includes but is not limited to repeated or continuing impermissible contact that would cause a reasonable person to suffer emotional distress and that actually causes the victim to suffer emotional distress. Ind.Code § 35-45-10-2. "Impermissible contact" includes but is not limited to knowingly or intentionally following or pursuing the victim. Ind.Code § 35-45-10-3. All of these definitional terms, Smith asserts, "seem to contemplate some physical contact between a defendant and the victim." (Br. of Defendant-Appellant at 11.)

Smith offers us a thorough review of our decisions reviewing stalking convictions premised in part on telephone calls. All those decisions involved the defendant's physical presence in addition to phone calls. Smith directs us to no decisions indicating physical presence is required to uphold a stalking conviction, and the State directs us to no Indiana decisions upholding a stalking conviction based on telephone calls alone. We accordingly seek...