Townsend v. State
| Citation | 753 N.E.2d 88 |
| Decision Date | 08 August 2001 |
| Docket Number | No. 55A01-0006-CR-204.,55A01-0006-CR-204. |
| Parties | Jonathan TOWNSEND, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Court of Appeals of Indiana |
R. Stephen Donovan, Mooresville, IN, Attorney for Appellant.
Karen M. Freeman-Wilson, Attorney General of Indiana, Teresa Dashiell Giller, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant, Jonathan Townsend, appeals from the jury's verdict finding him guilty of Intimidation,1 a Class D felony, Disorderly Conduct,2 a Class B misdemeanor, and Operating a Motor Vehicle with a Suspended License,3 a Class A infraction. Townsend presents four issues for our review, which we restate as:
(1) whether there was sufficient evidence to support his conviction for intimidation;
(2) whether the trial court erred when it denied Townsend's motion for judgment upon the opening statement of the State;
(3) whether the trial court erred when it permitted the State to amend the charging information; and
(4) whether the trial court erred when it limited Townsend's cross-examination of a witness.
We affirm.
The record reveals that on October 1, 1999, Martinsville Police Officer John Richards was driving his patrol car northbound on Jefferson Street in Martinsville when he observed Townsend drive past him going south. Approximately one week earlier, Officer Richards had cited Townsend for driving with a suspended license. Therefore, Officer Richards turned around and followed Townsend's vehicle, activating his emergency lights. Townsend pulled into a convenience store parking lot. When Officer Richards approached the vehicle, Townsend began to loudly use vulgar language. When Officer Richards asked Townsend to produce a valid driver's license, Townsend stated that he did not have one. Officer Richards called Officer Robert Townsend4 to the scene because Officer Richards did not have a traffic citation booklet.
When Officer Townsend arrived at the scene, Townsend was still shouting. Officer Townsend approached Townsend's vehicle and asked if there was a problem. Townsend continued to be loud; therefore, Officer Townsend told Townsend to calm down and warned that if he continued to yell, he could be arrested for disorderly conduct. However, Townsend continued to shout obscenities. Officer Richards cited Townsend for driving with a suspended license and an expired license plate and called a truck to tow Townsend's car away.
Ed Blakley, the tow-truck driver, arrived to tow Townsend's car away, but Townsend refused to give him the keys and shouted vulgarities at him as well. Blakley gave Townsend "the finger," and said that it would cost more if he had to tow the car without the keys. Thereafter, Townsend walked away toward the convenience store, and Blakley prepared the car to be towed. Townsend then turned around, approached his car, and began to curse at Blakley. Officer Townsend then informed Townsend that he was under arrest for disorderly conduct, and both officers struggled to place him in handcuffs.
Townsend was placed in Officer Richards' patrol car to be transported to jail. Officer Richards testified that, while in the patrol car, Townsend told him, Record at 349. Officer Richards, apparently referring to the charge of intimidation, told Townsend that he would now add another charge to Townsend's book-in sheet when they got to the jail. Officer Richards testified that Townsend responded, "he didn't mean that he was going to get me, he meant that God was going to get me for ... unjustly imprisoning him."Record at 350. Townsend continued to curse at Officer Richards on the way to jail.
The State initially charged Townsend with intimidation, resisting law enforcement,5 and disorderly conduct. The State later amended the information to include the charge of operating a motor vehicle with a suspended license. The jury found Townsend guilty of all charges except resisting law enforcement.
Townsend claims that the evidence was insufficient to support his conviction for intimidation. When reviewing a claim of insufficient evidence, we neither reweigh evidence nor judge witness credibility. Lycan v. State, 671 N.E.2d 447, 456 (Ind.Ct.App.1996). We consider only the evidence and reasonable inferences favorable to the judgment and determine whether there is sufficient evidence of probative value to support the conviction. Id. To convict Townsend of intimidation, the State had to prove that he communicated a threat to another person, with the intent that the other person be placed in fear of retaliation for a prior lawful act. I.C. § 35-45-2-1(a). Intimidation is a Class D felony if the person to whom the threat is communicated is a law enforcement officer. I.C. § 35-45-2-1(b)(1)(B)(i).
Townsend's attack upon the sufficiency of the evidence is two-pronged. First, he claims that there was no proof that his statements to Officer Richards could be viewed as a threat.6 Townsend notes that his account of what he said to Officer Richards differs significantly from the account given by Officer Richards. Townsend also notes that, in his probable cause affidavit, Officer Richards quoted Townsend as merely threatening to "get" him and, according to Townsend, paraphrased the rest of his statements. Record at 125. Thus, Townsend claims that "[t]here is no corroborating evidence of who may be telling the actual truth." Appellant's Brief at 9.
This is a blatant request for us to reweigh the evidence upon appeal, which we will not do. Lycan, 671 N.E.2d at 456. The jury was entitled to believe Officer Richards' testimony. See Williams v. State, 714 N.E.2d 671, 673 (Ind.Ct.App. 1999)
(). Furthermore, the testimony of a victim alone may be sufficient to sustain a conviction. Runyon v. State, 537 N.E.2d 475, 478 (Ind.1989). Officer Richards testified that, after being arrested, Townsend threatened to "get" Richards and his family, and from this the jury could reasonably conclude that Townsend communicated a threat to Officer Richards. See I.C. § 35-45-2-1(c).
Townsend also claims that there was no direct evidence of a lawful act against which his threat was directed. However, the jury could reasonably infer from the circumstances that Townsend's threats were made with the intent to place Officer Richards in fear of retaliation for arresting him. Therefore, there was sufficient evidence to support Townsend's conviction for intimidation.
Townsend next presents the argument that the trial court erred when it failed to grant his motion for judgment upon the State's opening statement. Pursuant to Ind.Code § 35-37-2-2, "[t]he prosecuting attorney shall state the case of the prosecution and briefly state the evidence by which he expects to support it...." (Burns Code Ed. Repl.1998). Where the State's opening statement is deficient, the defendant must show that he was surprised or misled thereby before reversible error will be found. Kincaid v. State, 265 Ind. 345, 351, 354 N.E.2d 199, 203 (1976), cert. denied, 430 U.S. 972, 97 S.Ct. 1660, 52 L.Ed.2d 365 (1977).
In his opening statement, the prosecuting attorney said that Townsend "did communicate a threat to a law enforcement officer with the intent to place the officer in fear of retaliation for the prior lawful act, which is the arrest." Record at 288. According to Townsend, the evidence shows that, while the threat was directed at Officer Richards, he was actually arrested by Officer Townsend. Therefore, Townsend claims that this statement failed to properly advise him of the case against him.
However, the record shows that, although Officer Townsend verbally informed the defendant that he was under arrest, both officers struggled to place him in handcuffs, and Officer Richards transported Townsend to jail in his patrol car. Moreover, Officer Richards testified that he arrested Townsend, and that he was considered the "arresting officer." Record at 395. Both officers helped subdue Townsend and acted in concert to effectuate his arrest. The jury could reasonably infer that Townsend's threat directed toward Officer Richards was in retaliation for his arrest by both officers. Therefore, the State's opening statement did not fail to properly advise Townsend of the case against him.
Townsend claims that the trial court erred when it granted the State's motion to amend the charging information against him. Townsend was originally charged with intimidation, resisting law enforcement, and disorderly conduct on October 4, 1999. Count III of the original information alleged that Townsend committed disorderly conduct by recklessly engaging in tumultuous conduct.7 See I.C. § 35-45-1-3(1). The trial court initially set the trial for January 25, 2000. On January 21, 2000, the State moved to amend the information to include a charge of driving while suspended, which had already been filed in another court.8 On that same day, Townsend filed a motion for continuance, which the trial court denied. On January 24, 2000, the State filed a motion to amend Count III of the information to allege that Townsend committed disorderly conduct by recklessly making unreasonable noise and continuing to do so after being asked to stop, deleting the allegation of tumultuous conduct. See I.C. § 35-45-1-3(2). The trial court granted the State's motion, but also granted Townsend's motion for continuance which had originally been denied. On January 25, 2000, the parties consented to a trial date of February 1, 2000.
Townsend claims that it was error for the trial court to allow the State to amend the information the day before the scheduled trial because ...
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