Wise v. State

• Decision Date: 04 March 1980
• Docket Number: No. 2-976-A-351,2-976-A-351
• Parties: John William WISE, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 65

401 N.E.2d 65

John William WISE, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 2-976-A-351.

Court of Appeals of Indiana, Second District.

March 4, 1980.

Harriette Bailey Conn, Public Defender, Eugene C. Hollander, Deputy Public Defender, Indianapolis, for appellant-defendant.

Theodore L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

SULLIVAN, Judge.

John William Wise, Jr. (Wise) appeals his convictions of aggravated assault and battery, ¹ drawing a weapon or committing injury upon a police officer, ² theft, ³ and automobile banditry. ⁴ The issues presented for review are whether each of the jury verdicts is supported by sufficient evidence. We affirm.

Wise and two companions drove from Indianapolis to the Mounds Mall shopping center in Anderson for the purpose of shoplifting. Marvin McCorkle (McCorkle), an Anderson police officer working as a security guard for the H. P. Wasson's store in the mall, observed Wise "double hang" a suit, i. e., place two suits on one hanger and enter a dressing room. McCorkle watched through a security window above the dressing room as Wise wrapped one of the suits around his body and concealed it beneath his own clothing. Wise returned the other suit to the rack and left the store.

McCorkle stopped Wise outside the door of the Wasson's store, identified himself as a police officer and asked Wise to accompany him back inside the store. Once inside, McCorkle advised Wise that they needed to talk about some items he might have taken. Wise dropped his trousers and the concealed suit fell onto the floor. A scuffle ensued between the two. McCorkle managed to draw his weapon. Wise bit the thumb of McCorkle's gun hand and eventually gained control of the weapon. Wise turned the gun on McCorkle and backed out of the store, through the mall area and into the parking lot. McCorkle followed Wise, imploring him to drop the gun and surrender. Wise repeatedly threatened to kill McCorkle if he did not back off and when the two men reached the parking lot, Wise fired a shot which struck the pavement near McCorkle's feet.

Tom Turner (Turner), a private investigator, free lance photographer and deputy coroner for Madison County, heard a report on his police radio that Officer McCorkle needed assistance and drove to the mall. Turner drove up, got out of his car, drew his weapon and put a shell in the chamber, but the gun jammed. Wise demanded that Turner drop his gun, but Turner refused and turned his back to Wise as he worked to free his weapon. McCorkle then grabbed Wise and another scuffle began. Wise apparently pulled the trigger of the gun in his hand, but McCorkle managed to prevent its discharge by placing his hand in front of the hammer. Wise pushed McCorkle to the ground and ran toward his companion's car; McCorkle ran after him.

When Wise reached the car, another fight broke out between the two. A shot was fired and McCorkle again was pushed to the ground. McCorkle took refuge with Turner behind Turner's car. Turner and Wise exchanged gunfire and Wise and his companions drove away. Turner and McCorkle followed in Turner's car, but the chase was aborted when McCorkle lost consciousness and was taken to the hospital.

Wise was charged with assault with intent to kill, using a firearm and committing injury upon an officer, theft, and automobile banditry. He was granted a change of venue to the Grant Circuit Court where he was convicted after trial by jury of aggravated assault and battery, drawing a weapon or committing injury upon an officer, theft, and automobile banditry, and was sentenced to four concurrent terms of 1-5 years imprisonment.

I.

Wise argues that his conviction of aggravated assault and battery is not supported by sufficient evidence that he intentionally or knowingly inflicted great bodily harm or disfigurement upon another person. He insists his actions were justified by the need to protect himself from the overt and uncalled-for physically threatening demeanor of Officer McCorkle and that the bite on McCorkle's thumb does not support a finding of great bodily harm or disfigurement.

When reviewing the sufficiency of the evidence in a criminal proceeding, we neither weigh the evidence nor judge the credibility of the witnesses, but look to the evidence most favorable to the State and all reasonable inferences to be drawn therefrom; when there is substantial evidence of probative value to support the jury verdict, the judgment of the trial court will be affirmed. Tessely v. State (1978) Ind., 370 N.E.2d 907; Griffin v. State (3d Dist. 1978) Ind.App., 372 N.E.2d 497.

Our Supreme Court held in Defries v. State (1976) 264 Ind. 233, 342 N.E.2d 622, that a conviction of aggravated assault and battery under I.C. 35-13-3-1 does not require proof of the specific intent to inflict great bodily harm or disfigurement. Rather, it requires proof of the seriousness of the unpermitted touching. The Court explained that:

"Our statute requires that great bodily harm or disfigurement be inflicted. One who merely intends to tie up his victim and pound him about the head with a meat tenderizing tool has not committed the crime of aggravated assault in Indiana. On the other hand, if one throws a piece of chalk at the legendary victim with an eggshell skull, and the chalk strikes the victim and fractures his skull, the perpetrator would be guilty under our statute even though he did not intend to do great bodily harm." (original emphasis) Id., 264 Ind. at 244-45, 342 N.E.2d at 629-30.

The required intent may be inferred from the intentional doing of an act, the probable result of which will be a rude or insolent touching of the person of another. Id., 264 Ind. at 239, 342 N.E.2d at 626.

Wise argues that his actions were justified as self-defense; that he was provoked or entrapped by Officer McCorkle's physically threatening demeanor and use of excessive force, thereby negating any criminal intent on his part. One may not be validly convicted of an assault and battery if he has acted in self-defense. See, Johnson v. State (1971) 256 Ind. 579, 271 N.E.2d 123, but in the instant case, the person assaulted was a police officer attempting to arrest Wise. Due to the status of the victim and the circumstances surrounding the assault and battery, Wise's right to invoke self-defense necessarily involves his right to forcibly resist arrest.

Indiana has recognized the common law right of an individual to resist an unlawful arrest. At common law, a person was permitted to resist an unlawful arrest with reasonable force. Heichelbech v. State (1972) 258 Ind. 334, 281 N.E.2d 102; Williams v. State (3d Dist. 1974) 160 Ind.App. 294, 311 N.E.2d 619. In Fields v. State (1st Dist. 1978) Ind.App., 382 N.E.2d 972, however, the Court held that a private citizen may not use force in resisting a peaceful arrest by a person whom he knows or has good reason to know is a police officer performing his duties, regardless whether the arrest was legal or illegal. The Fields Court cautioned that it was not addressing issues that arise when an arrestee apprehends that the arresting officer is using excessive force and that unless the arrestee defends himself, he is likely to suffer great bodily harm or death. Indeed, in several modern cases, other jurisdictions have recognized the general rule that an arrestee may use reasonable force to defend himself against the use of greater force by the arrester than is required to effect the arrest. See generally, Anno.: 44 A.L.R.3d 1078 (1972).

In Heichelbech v. State (1972) 258 Ind. 334, 281 N.E.2d 102, our Supreme Court rejected a tendered instruction which would have permitted the jury to consider the arresting officer's subjective intent in determining whether the defendant's actions were justified as self-defense, saying:

"Clearly, if the arrest was lawful, the accused should not have resisted, regardless of his assessment of the arresting officer's personal feelings and motives. Malice might cause one to use more force than was necessary, but that is not the issue here." (original emphasis) Id., 258 Ind. at 337, 281 N.E.2d at 104.

In Birtsas v. State (2d Dist. 1973) 156 Ind.App. 587, 297 N.E.2d 864, we affirmed a conviction of assault and battery against a claim of self-defense involving the biting of the hand of the arresting officer. We acknowledged that the officer had not used excessive force in making the arrest. While neither Heichelbech nor Birtsas explicitly states so, they clearly imply that Indiana adheres to the general rule allowing an arrestee to resist the arrester's use of excessive force by the use of reasonable force to protect himself against great bodily harm or death.

Wise argues that the facts are clear and uncontroverted that his actions were prompted by fear for his own safety, that his actions were justified as self-defense as a matter of law. While the jury must look at the situation from the defendant's viewpoint in deciding whether the defendant acted in self-defense and is free to believe or disbelieve his testimony as to what his viewpoint was, Lee v. State (3d Dist. 1973) 156 Ind.App. 569, 297 N.E.2d 890, we may look only to the evidence most favorable to the State in determining whether Officer McCorkle used excessive force in arresting Wise and thereby led him to reasonably believe he would suffer great bodily harm or death unless he defended himself. See, White v. State (1976) 265 Ind. 32, 349 N.E.2d 156.

The evidence most favorable to the State has been set forth. While the record does not disclose who struck the first blow in the fracas, the evidence does show that any force used by Officer McCorkle came after Wise attempted to flee from the officer's custody. The jury was instructed that pursuant to I.C. 35-1-19-3 (Burns Code Ed.1975) an officer may use necessary means to effect an arrest if the defendant either flees or forcibly resists...