Whited v. State

• Decision Date: 10 May 1971
• Docket Number: No. 270S32,270S32
• Citation: 25 Ind.Dec. 438,269 N.E.2d 149,256 Ind. 386
• Parties: Larry WHITED, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 149

269 N.E.2d 149

256 Ind. 386

Larry WHITED, Appellant, v. STATE of Indiana, Appellee.

No. 270S32.

Supreme Court of Indiana.

May 10, 1971.

Rehearing Denied July 14, 1971.

See 271 N.E.2d 513. Brent A. Barnhart, Kenneth C. Kern & Associates, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., of Indiana, for appellee.

HUNTER, Judge.

This is an appeal from a conviction for disorderly conduct as proscribed by Ind.Ann.Stat. § 10--1510, I.C.1971, 35--27--2--1, (1956 Repl.).

Appellant was tried without the intervention of a jury and found guilty; a fine of fifty dollars ($50.00) and a sentence of thirty (30) days in the Marion County Jail were imposed.

A motion for new trial was filed and was denied by the trial court. One portion of that motion is asserted here; appellant contends there was insufficient evidence as a matter of law to support his conviction.

The statute under which appellant was charged provides that:

' § 10--1510. Disorderly conduct--Penalty.--Whoever shall act in a loud, boisterous or disorderly manner so as to disturb the peace and quiet of any neighborhood or family, by loud or unusual noise, or by tumultuous or offensive behavior, threatening, traducing, quarreling, challenging to fight or fighting, shall be deemed guilty of disorderly conduct, and upon conviction shall be fined in any sum not exceeding one hundred dollars ($100), to which may be added imprisonment for not to exceed sixty (60) days.'

In reviewing a conviction where sufficiency of the evidence is raised this court may consider only that evidence favorable to the state and all reasonable inferences to be drawn therefrom. McGill v. State (1969), Ind., 247 N.E.2d 514. We will not weigh the evidence nor determine the credibility of witnesses but will merely examine the record to ascertain if, as a matter of law, there is sufficient evidence to establish the elements of the offense. Kirk v. State (1970), Ind., 257 N.E.2d 304.

As indicated by the statute there must exist under the facts of this case evidence of probative value that appellant

(1) acted in a loud, boisterous manner

(2) so as to disturb the peace and quiet of the neighborhood.

The following evidence was adduced at trial.

The Indianapolis Police Department went to the area of a house where appellant was a guest bent upon a narcotics 'raid' in search of contraband thought to be on the premises. As appellant and two or three other men sat on the porch of the house sharing a bottle of wine they saw the officers approaching. As the policemen reached the area of the bottom porch step, or perhaps a short interval before that time, appellant, in a 'loud and disorderly' manner 'yelled' obscenities at the officers, alluding to their lineage and freely employing colloquial terminology used by a minority of our citizens to refer to officers of the law. Appellant was asked for his identification and in response continued his tirade. He was arrested as were others who were on the porch. During the time this took place a large crowd gathered and more arrests ensued.

The police contingent which originally approached the home where appellant was arrested was composed of at least two vehicles and seven policemen. Later seven more vehicles were called to the scene.

Appellant contends there was a finding by the trial court that the crowd gathered due to appellant's acts and that the court regarded this as establishing the offense. Further he contends that the evidence does not support the finding.

First, from a review of the record as a whole it appears that the court recognized that it was the nature of appellant's conduct that constitutes the offense. In other words, the court realized that whether a crowd gathered or not a conviction would be proper if appellant's conduct was such as to 'disturb the neighborhood.' While the fact that a crowd gathered may be of some considerable evidentiary weight on whether the statute was violated, it is not requisite to a conviction.

Second, we find sufficient evidence in the record to support both the conviction and, even though it is not a necessary element of the offense, the alleged finding that a crowd was drawn by appellant's acts. The police officers testified that appellant 'yelled' in a 'loud, disorderly' manner. This conduct occurred in an area of residences that prior to such acts had, from all that is in the record, been devoted to normal and usual urban pursuits. The mood that existed was broken. From the evidence it was proper to infer that:

'The language and the conduct of * * * (appellant), within the hearing and view of the public was certainly most offensive, and was such as in its nature would 'disturb the peace and quiet of the neighborhood." Romary v. State (1945), 223 Ind. 667, 671, 64 N.E.2d 22, 23 (our emphasis).

Considering the nature of Whited's conduct, as reported by the officers, and the area in which it was undertaken a violation of the statute was established.

It is also reasonable to infer that the conduct on the porch drew the crowd that gathered. Certainly this court will not assert its judgment in this regard over that of the trial court which had the witnesses before it. Such is not our function. Kirk v. State, supra.

Appellant next asserts that it was the policemen who were disturbed and not the neighborhood. Since, he contends, only policemen testified as to the nature of his conduct there is no showing that persons in the neighborhood were disturbed. Such reasoning overlooks the concept that only a showing that conduct which by its nature is offensive in the context in which it is committed is required to support a conviction under the statute. Here the officers testified as to the quality of Whited's actions. The fact that no neighbor gave similar testimony is not fatal. All that is required is a showing that an accused's actions were possessed of loud and offensive characteristics in the setting in which they were done. Such a state of facts can as well be established by one source of testimony as another.

An allusion is made in appellant's brief to the fact that appellant's conduct may be excused as a reasonable reaction to illegal activity because the police had no warrant to search the premises. The record is void of mention as to whether this is true or not and is also empty of evidence on the issue of whether there may have existed sufficient probable cause to support a 'raid' without a warrant. But, we need not reach that issue as the record shows that even before appellant or any other person on the porch inquired into any possible lack of police authority the loud unseembly actions complained of were undertaken. In brief, whatever validity such an argument might possess, it must fail because appellant commenced his activity without even an inquiry into the legal status of the officers.

Also, appellant relies on the fact that policemen are naturally subjected to certain abuses in their work to support an assertion that appellant's conduct should not be regarded as in violation of § 10--1510. However it is the offensive nature of the conduct in terms of the neighborhood that violates the statute. The officers in this case are not the focal point of the conviction. While they related the nature of appellant's acts it was the acts themselves and not those at whom they were directed that form the basis of the conviction.

Lastly, appellant relies on the case of Williams v. District of Columbia (1969), 136 U.S.App.D.C. 56, 419 F.2d 638 for the proposition that where only the policeman is offended a conviction for disorderly conduct will not lie. For reasons outlined above we do not regard this alleged holding of Williams as relevant here.

Williams however is pertinent insofar as it suggests that due to First Amendment freedoms a statute such as the one here in question must be read to require that any prohibited speech related activity must be proscribed because it has a tendency to lead to violence. We accept such constitutional analysis as indeed valid.

From the facts here in question we find that implicit in the trial court's ruling was the finding that such was the tendency of appellant's actions. In so holding we regard the fact that additional arrests were made of certain of those in the crowd that gathered as an item of evidence that appellant's acts tended to increase the likelihood of violence. However, we find equally persuasive in this regard the fact that he acted in resistance to what he could only fairly assume to be valid police activity without making the slightest inquiry of the officers. Of further moment is the fact that his acts were done in concert with the others on the porch.

For all the foregoing reasons we find that appellant's conviction must be affirmed.

Judgment affirmed.

ARTERBURN, C.J., and GIVAN, J., concur.

PRENTICE, J., dissents with Opinion in which DeBRULER, J., concurs.

PRENTICE, Judge (dissenting).

I am compelled to dissent from the majority opinion which, I believe supplies inferences that cannot be properly drawn from the evidence and omits salient and uncontroverted testimony.

On the evening in question, several squad cars full of policemen swarmed upon the defendant and several of his companions who were gathered on the porch of a private residence at No. 2024 North Talbot Street, in the City of Indianapolis. The record affirmatively shows that the police had no arrest warrant. It is silent upon the question of whether they possessed a search warrant or had grounds for a warrantless search. Under the circumstances in this case, had there been either, the burden would have been upon the State to disclose it, thus I resolve that question against it.

As the police approached the porch, one of the group of young men ran into the house; another hollered 'Here come the big sons-of-bitches that is going to raid us again;' and the defendant yelled out 'Here comes the damn pigs,' or...