Tapp v. State

• Decision Date: 23 June 1980
• Docket Number: No. 1-180-A-17,1-180-A-17
• Citation: 406 N.E.2d 296
• Parties: Connie Ann TAPP, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 296

406 N.E.2d 296

Connie Ann TAPP, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-180-A-17.

Court of Appeals of Indiana, First District.

June 23, 1980.

Rehearing Denied Aug. 22, 1980.

Arthur Griffith, Evansville, for defendant-appellant.

Theo. L. Sendak, Atty. Gen., Janis L. Summers, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

Appellant Connie Ann Tapp (Tapp) appeals from a conviction of the crime of battery, a class D felony, and from a two year sentence to the Indiana Women's Prison.

FACTS

The facts most favorable to the state are as follows. On April 14, 1979, off duty Evansville police officer, Bertus Weisheit (Weisheit), was working as a plainclothes security guard at the North Park Sears store in Evansville, Indiana. From a concealed spot within the Sears store Weisheit observed Tapp wrap a pair of children's shoes in a pink baby blanket and put them into her purse. He watched as she continued to walk through the children's department toward the front door. When Tapp reached the front door, Weisheit left his observation point, lost sight of Tapp for two or three seconds, then followed her out of the door. As Weisheit approached Tapp he displayed his badge and announced: "I am a City Police Officer and you're under arrest for shoplifting." He then asked her to open her purse. She refused. A scuffle ensued involving Officer Weisheit, Tapp, and Tapp's sister, all of whom ended up back inside the Sears store. Weisheit suffered three bites on his right arm which Tapp admitted inflicting on him since she thought he was a purse snatcher. A customer witnessing the fray saw the shoes drop to the floor inside the store, and both the shoes and blanket were recovered by a Sears clerk at the site of the scuffling inside the front entrance of the store. The state filed its information charging Tapp with battery of a law enforcement officer, and after trial by jury she was convicted as charged.

ISSUES, DECISION, AND DISCUSSION

Although appellant raised fifty (50) allegations of error in her motion to correct errors, only a few issues can be considered as preserved for appeal. Appellant waived most of the allegations of error either expressly in her brief or impliedly by failure to support her allegations with authority, location in the record, or argument. Ind. Rules of Procedure, Appellate Rule 8.3(A)(7). Most of appellant's arguments are simply a rephrasing of the allegations raised in the motion to correct errors. Mere assertions of error unsupported by cogent argument or authority preserve nothing for appeal. Henderson v. State, (1956) 235 Ind. 132, 131 N.E.2d 326, cert. denied, 351 U.S. 958, 76 S.Ct. 855, 100 L.Ed. 1480 (1955); Cammack v. State, (1970) 254 Ind. 637, 261 N.E.2d 862. Because this court will decide an appeal on its merits wherever possible, however, we have grouped appellant's alleged errors which we consider preserved for appeal into three major issues for purposes of a coherent and efficient discussion.

The majority of appellant's allegations of error concern the trial court's overruling her objections to testimony and evidence presented by the state having to do with the circumstances surrounding the incident and with impeachment evidence. Appellant's counsel continually objected to the state's evidence on the grounds that it was irrelevant and highly prejudicial. As a general rule, the admissibility of evidence is within the sound discretion of the trial court. Pack v. State, (1974) 162 Ind.App. 107, 317 N.E.2d 903, trans. denied ; State v. Lee, (1949) 227 Ind. 25, 83 N.E.2d 778. It is also well established that happenings near in time and place which complete the story of the crime are admissible under the theory of res gestae. Mack v. State, (1978) Ind.App., 380 N.E.2d 592; Maldonado v State, (1976) 265 Ind. 492, 355 N.E.2d 843; McCormick, Evidence § 190 (2d ed. 1972). Moreover, the trial court is given wide latitude in weighing the probative value of evidence as against the possible prejudice of its admission. Sizemore v. State, (1979) Ind., 395 N.E.2d 783; Boles v. State, (1975) 163 Ind.App. 196, 322 N.E.2d 722. Only where the trial court's action has resulted in such serious prejudice to the defendant that the trial court may be said to have abused its discretion will the trial court's actions be disturbed. Porter v. State, (1979) Ind., 391 N.E.2d 801. No prejudice having been shown by appellant as to the admission of the surrounding and impeaching facts, we may not say as a matter of law that the trial court abused its discretion.

The second area of alleged error involves appellant's contention that, though she committed the battery, she was acting in self defense. We acknowledge that "the burden is on the State to negate the claim of self-defense." Woolum v. State, (1978) Ind.App., 381 N.E.2d 1072, 1074. The question of self defense, however, is one for the trier of fact. Cammack v. State, supra; Scruggs v. State, (1974) 161 Ind.App. 666, 317 N.E.2d 807. Where the evidence is conflicting, the trier of fact may reject the defendant's version of what happened. Woolum v. State, supra; Cammack v. State, supra. On review, this court will not weigh the evidence or judge the credibility of witnesses. Jones v. State, (1978) Ind., 372 N.E.2d 1182; Walton v. State, (1980) Ind., 398 N.E.2d 667. We shall consider only the evidence most favorable to the state and all reasonable inferences which may be drawn therefrom. Moore v. State, (1978) Ind., 381 N.E.2d 523. "There is no requirement for the State to specifically introduce evidence to refute the elements of self-defense. Such may be done by the evidence in its entirety in the State's case in chief." Hester v. State, (1978) 267 Ind. 697, 373 N.E.2d 141, 142. To hold that the jury could have found beyond a reasonable doubt that Tapp did not act in self defense, "this court need not find evidence adequate to overcome every reasonable hypothesis of innocence, but need find only that a reasonable inference may be drawn from the evidence which tends to support the finding of guilt." Smith v. State, (1980) Ind.App., 403 N.E.2d 869. We find no error merely because the finder of fact rejected appellant's claim of self defense.

In several other allegations appellant asserts error in the trial court's dealing with the status of the victim as a law enforcement officer. Appellant contends that the trial court erred in overruling her motion to withdraw the question of battery of a law enforcement officer from the jury because the state did not prove that at the time of the offense victim Weisheit was a law enforcement officer. A verdict, of course, will not be disturbed on appeal when there is sufficient evidence of probative value to prove every element of the crime beyond a reasonable doubt. Schilling v. State, (1978) Ind., 376 N.E.2d 1142. When looking only to the evidence most favorable to the state and to all the reasonable inferences flowing therefrom, in this case we find that appellant raises a legitimate question as to whether the state proved beyond a reasonable doubt that the victim was a law enforcement officer within the contemplation of IC 1971 35-42-2-1 (Burns Code Ed., Repl. 1979), the statute under which appellant was charged and convicted. For the reasons set forth below we hold that the state did so prove and therefore affirm the judgment of the trial court.

Ind.Code 35-42-2-1 provides the following definition of battery:

"BATTERY. A person who knowingly or intentionally touches another person in a rude, insolent, or angry manner commits battery, a class B misdemeanor. However, the offense is:

(1) A class A misdemeanor if it results in bodily injury to any other person, or if it is committed against a law-enforcement officer ¹ or against a person summoned and directed by the officer while the officer is engaged in the execution of his official duty;

(2) A class D felony if it results in bodily injury to such an officer or person summoned and directed; and

(3) A class C felony if it results in serious bodily injury to any other person or if it is committed by means of a deadly weapon. (IC 35-42-2-1, as added by Acts 1976, P.L. 148, § 2, p. 718; 1977, P.L. 340, § 30, p. 1533.)" ²

Implicit in the issue at hand are the questions of whether the legislature intended that the clause "while the officer is engaged in the execution of his official duty" be included as an element to be proved in a class D felony when the battery results in bodily injury to a law enforcement officer and, if so, was Weisheit so engaged.

On its face, the statute is ambiguous; a grammatical analysis results in two possible interpretations. The clause set out above appears to modify only the last part of the IC 35-42-2-1(1) sentence which reads "or against a person summoned and directed by the officer." This is the position adopted by the commentator to West's Annotated Indiana Code. See "Commentary," West's A.I.C. 35-42-2-1. Under this interpretation the elements of battery as a class D felony would consist of (1) knowingly or intentionally (2) touching (3) in a rude, insolent, or angry manner (4) a law enforcement officer (5) with resulting bodily injury to the officer. This interpretation would give law enforcement officers as defined by the statute a special status for purposes of the battery statute. A second interpretation flows from the unorthodox punctuation employed in the IC 35-42-2-1(1) sentence. Unfortunately, this type of punctuation characterizes much legislative writing and bears little, if any, relationship to accepted American literary standards. The comma appearing between "person" and "or" seems to indicate that the above-mentioned clause modifies the entire second half of the parallel construction following the comma. In other words, the elements of battery as a class D felony under this interpretation would include (1) knowingly or intentionally (2) to...