Spangler v. State

• Citation: 607 N.E.2d 720
• Decision Date: 22 January 1993
• Docket Number: No. 16S04-9301-CR-145,16S04-9301-CR-145
• Parties: Gary SPANGLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Supreme Court of Indiana

Page 720

607 N.E.2d 720

Gary SPANGLER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 16S04-9301-CR-145.

Supreme Court of Indiana.

Jan. 22, 1993.

Jack R. Shields, Shields & Jones, Batesville, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Sue A. Bradley, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

ON CRIMINAL PETITION TO TRANSFER

DeBRULER, Justice.

The Decatur County Sheriff's Department arrested Appellant Gary Spangler after he refused to accept service of a Temporary Protective Order and an Order to Appear before the Decatur County Court. Following a bench trial, the Decatur County Court, L. Mark Bailey, J., convicted Spangler of the criminal offense of Resisting Law Enforcement, Ind.Code Sec. 35-44-3-3, a Class A Misdemeanor. The court sentenced Appellant Spangler to six months in jail, and assessed him $250.00 in fines and $163.00 in Court costs, but suspended the jail sentence and the fine. With memorandum opinion, the Indiana Court of Appeals (Fourth District) affirmed the conviction. 594 N.E.2d 539. This cause comes to us on Petition to Transfer. Transfer is granted.

On December 4, 1990, the Decatur County Court granted a Temporary Protective Order, pursuant to I.C. Sec. 34-4-5.1-2, against Spangler. The following day, the Decatur County Sheriff's Department received a copy of the protective order, which directed the Decatur County Sheriff to serve a copy of the Temporary Protective Order and Order to Appear upon Spangler, and to certify service of the orders to the court.

Deputies from the Decatur County Sheriff's Department made numerous unsuccessful attempts to locate Spangler's place of residence in order to serve the orders. The deputies attempted contacting Spangler by telephone, calling his home number and places of employment. The deputies left messages for Spangler to retrieve the court documents from the Sheriff's office, but were not able to contact him until later that week.

On December 7, 1990, Deputy Daryl Templeton of the Decatur County Sheriff's Department telephoned the United States Post Office branch in Greensburg, Indiana, one of Spangler's places of employment. When Spangler answered the call, Templeton identified himself as a member of the Decatur County Sheriff's Department, and notified Spangler that the department was trying to deliver some court documents to him. Spangler stated, "Don't you ever call me at work again," then hung up on Templeton. Record at 36.

Templeton immediately carried the court orders to the post office to attempt personal service on Spangler. Templeton approached a counter window at the post office and asked the counter attendant whether Spangler was present. The attendant walked to the back of the post office and brought Spangler to the counter window. Templeton, identifying himself as a member of the Decatur County Sheriff's Department, attempted to deliver the orders. Spangler refused to accept the papers, stating, "Don't you ever give up? ... I told you not to bother me at work.... You're not going to give them to me here.... Don't you ever bother me at work again." Record at 38.

Spangler turned to walk away from Templeton, but Templeton ordered Spangler to return, warning "Gary, come back here and if you don't settle yourself down, you're going to be arrested for disorderly conduct." Id. Spangler stopped long enough to express his dissatisfaction with Templeton, stating, "I'm not going to take those papers here, don't bother me." Record at 38. Spangler then walked to the back of the post office building.

Templeton summoned another postal worker and asked that worker to have Spangler return to the counter. When Spangler returned, he walked through a doorway into the front lobby where Templeton was standing. Again, Spangler refused service and reiterated his demand that the Sheriff's office stop bothering him at work. Spangler turned to walk away, and Templeton ordered, "Don't walk away from me." Record at 59. Spangler responded, "I've got work to do and they've got a job to do here ... if you want to arrest [me] for something go ahead but otherwise I've got a job to do." Record at 59-60. The entire incident lasted between 30 seconds and one minute. Templeton arrested Spangler for Disorderly Conduct, based on Spangler's continued refusal to accept service and his uncooperative state. Templeton served the Protective Order and the Order to Appear on Spangler later that day at the Decatur County Jail.

On May 21, 1991, the State filed an Information that added the charge of Resisting Law Enforcement to the original charge of Disorderly Conduct. The trial court convicted Spangler of Count I Resisting Law Enforcement, but acquitted him of Disorderly Conduct. In its Order denying a Motion to Correct Errors, the trial court found that Spangler's actions to resist "were active, not passive, in nature and therefore, forceful, [and] unlawful." Record at 12. The Indiana Court of Appeals (Fourth District) affirmed the trial court decision, finding that while appellant did not exercise physical force, he nonetheless acted to resist, and that evidence of those actions was sufficient evidence to prove guilt.

Spangler does not dispute the fact that the deputy was authorized to serve the civil order of the court. Statutes authorize orders of this type, I.C. Sec. 34-4-5.1-2, and service by the sheriff, I.C. Secs. 33-3-1-5, 33-6-1-11, and 36-2-13-5(a)(5). Nor does he contend that his actions were done without the requisite intent, i.e., knowing. Spangler does not argue that he did not "resist" the authorized service of the court order. The evidence produced at trial clearly shows that Spangler attempted to evade service of process at his place of work. Spangler's continued expressions of dissatisfaction with Deputy Templeton and the Decatur County Sheriff's Department, along with Spangler's continued evasion of Templeton, are sufficient to show such resistance. What Spangler does seek to show is that his actions in evading service of the court orders were not forcible, thus not in violation of the statute. We granted transfer to address the apparent conflicting views in the Indiana Court of Appeals, and to clarify the meaning of the statute.

Spangler was convicted of Resisting Law Enforcement, I.C. Sec. 35-44-3-3, which reads in part:

Sec. 3(a) A person who knowingly or intentionally:

(2) forcibly resists, obstructs, or interferes with the authorized service or execution of a civil or criminal process or order of a court

commits resisting law enforcement, a Class A misdemeanor.

The Information charged that Spangler "did knowingly and forcibly resist the authorized service of an order, to-wit,: a temporary protective order entered by the Decatur County Court." Record at 15.

The fundamental conflict within the Court of Appeals is whether the word "forcibly" modifies a required element of the crime Resisting Law Enforcement. Appellant contends that the Third District Court of Appeals' interpretation is correct, citing White v. State (1989), Ind.App., 545 N.E.2d 1124. In White, the trial court convicted the defendant of forcibly interfering with a law enforcement official or persons assisting them. In overturning the conviction, the Third District Court of Appeals found that the use of force is an essential element of resisting law enforcement, because the word "forcibly" appears on the face of the statute. The First District Court of Appeals also recognized that use of force is required in order to violate the statute. See O'Connor v. State (1992), Ind.App., 590 N.E.2d 145.

All statutes are to be examined and interpreted as a whole, giving common and ordinary meaning to English words found in everyday speech. Foremost Life Ins. Co. v. Department of Ins. (1980), 274 Ind. 181, 409 N.E.2d 1092, 1096. In construing a statute, effect should be given to every word and clause therein. Matter of Lawrance (1991), Ind., 579 N.E.2d 32, 38. On the face of this particular statute, the word "forcibly" appears directly before the word "resists." A correct interpretation of the statute requires us to give meaning to the word "forcibly," because the legislature included the word in the statute. In order to sustain the conviction, the State must have proven not only that Spangler resisted, but that he forcibly resisted, because the modifying word "forcibly" is within that section of the statute. "Forcibly" is a required element of the crime, and it is error to find that mere action to resist service of process falls within the statute, absent a showing of use of force.

At trial and on appeal, Spangler argued that the word "forcibly" modified the string of verbs "resists, obstructs, or interferes" in the statute. Again, Spangler relied on White, where the court concluded that "the use of the adverb 'forcibly' before the first of the string of verbs, with the disjunctive conjunction used only between the last two of them, shows quite plainly that the adverb is to be interpreted as modifying them all." White at 1125 (quoting Long v. U.S. (4th Cir.1952), 199 F.2d 717, 719).

When construing a statute, the Court must also examine the grammatical structure of the clause or sentence in issue. Foremost Life Ins. 409 N.E.2d at 1096. Here, the legislature placed the modifier "forcibly" before the verb "resists," and "resists" was the first in a string of verbs. If the legislature had intended only to modify "resists," then "forcibly" would have appeared after the verb, and the statute would have instead read "resists forcibly, obstructs, or interferes." We agree with the Third District Court of Appeals that "forcibly" modifies the entire string of verbs in that particular section of the statute, due to the placement of the adverb before the string of verbs in that particular clause.

We turn then to consider the appropriate meaning of the term "forcibly" as it is used in this statute. As this is a penal statute, it is to be strictly...