ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
CHRISTOPHER T. SMITH KAREN FREEMAN-WILSON
Greenfield, Indiana Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
FRANKLIN THOMAS, )
vs. ) No. 30A01-0008-CR-280
STATE OF INDIANA, )
APPEAL FROM THE HANCOCK SUPERIOR COURT
The Honorable Richard Culver, Judge
Cause No. 30D02-9905-DF-497
May 30, 2001
OPINION FOR PUBLICATION
Franklin Thomas appeals his conviction after a jury trial of battery by body
waste, a Class D felony.
See footnote He raises two issues on appeal:
first, whether the trial court erred by admitting hearsay testimony of one deputy
who testified that another deputy said Thomas spit on him, and second, whether
the legislature intended Ind. Code § 35-42-2-6 to apply to situations where no
communicable disease could be transmitted to an officer. We affirm.See footnote
On May 15, 1999, Spiceland Reserve Officer Ed Freestone pulled over the driver
of a truck after he observed the truck weaving across the center line
and off the road. Two Hancock County deputies, Jeffrey Scott and Noble
Cox, arrived to provide assistance a few minutes after the stop. The
driver, Thomas girlfriend, was arrested for driving while intoxicated, and the passenger, Thomas,
began using abusive language with the officers. Thomas appeared to be intoxicated,
and he was unable to provide a drivers license to the officers upon
request.See footnote The officers asked him to take a breathalyzer test, and Thomas
did not blow properly into the testing apparatus. As Deputy Scott withdrew
the testing apparatus from Thomas mouth, Thomas spit on Deputy Scott. The
officers then arrested Thomas for disorderly conduct and battery by body waste.
Between the arrest and trial, Deputy Scott suffered significant health problems, the cause
of which is not clear from the record.See footnote At trial, Deputy Scott
testified that he was on medication that might affect his ability to accurately
remember what happened at Thomas arrest. Later in the trial, Deputy Cox
was allowed to testify, over objection, that Deputy Scott told him at the
time of the arrest that Thomas spit on him. Thomas was convicted
of battery by body waste and disorderly conduct and sentenced to three years
and six months in the Department of Correction.
DISCUSSION AND DECISION
1. Hearsay Evidence
Thomas maintains that as Officer Freestone and Deputy Cox did not actually see
the spittle land on Deputy Scott, and as Deputy Scotts memory was not
reliable, the jurors would have heard insufficient evidence to determine that Thomas spit
on Deputy Scott had the alleged hearsay statement been excluded. Indiana Evidence
Rule 801(d)(1) provides that a statement is not hearsay if:
[t]he declarant testifies at the trial or hearing and is subject to cross-examination
concerning the statement, and the statement is . . . (B) consistent with
the declarants testimony, offered to rebut an express or implied charge against the
declarant of recent fabrication or improper influence or motive, and made before the
motive to fabricate arose . . . .
Thomas argues the trial court improperly admitted Deputy Scotts statement to Deputy Cox
under this evidentiary rule. He states that there was not any express
or implied charge against Deputy Scott of recent fabrication or improper influence or
motive. (Br. for Appellant at 4.)
Conversely, the State argues that Thomas brought Deputy Scotts credibility into issue by
asking Deputy Scott whether any medications he was taking might affect the accuracy
of his memory regarding Thomas arrest. (Br. of Appellee at 6.)
Deputy Scotts health problems occurred after Thomas arrest and prior to trial; thus,
the State argues, when Thomas questioned the accuracy of Deputy Scotts testimony during
cross-examination, he was making an implied charge . . . of recent fabrication.
Id. The prosecutors presentation of Deputys Coxs testimony that Deputy Scott
reported Thomas spit on him might then be viewed as an attempt by
the prosecution to rehabilitate Deputy Scott after his credibility had been called into
The trial court is afforded broad discretion in ruling on the admissibility of
evidence, and we will reverse such a ruling only upon a showing of
abuse of discretion. Smoote v. State, 708 N.E.2d 1, 3 (Ind. 1999);
Carter v. State, 692 N.E.2d 464, 465 (Ind. Ct. App. 1997). Even
if evidence is improperly admitted, we disregard error in the admission of evidence
unless it affects the substantial rights of a party. Hatcher v. State,
735 N.E.2d 1155, 1161 (Ind. 2000). We decline to hold that every
lapse of memory on the part of a witness amounts to a fabrication
of testimony. Such an interpretation of that hearsay exception would quickly subsume
the rule. Accordingly, Thomas attack on Deputy Scotts ability to remember since
his accident does not necessarily suffice as an implied charge of recent fabrication
under Evid. R. 801(d)(1).
However, we need not decide whether this statement was hearsay, as its admission,
if erroneous, was harmless error. An error in admitting evidence will be
found harmless if its probable impact on the jury, in the light of
all of the evidence in the case, is sufficiently minor so as not
to affect the substantial rights of the parties. Berry v. State, 715
N.E.2d 864, 867 (Ind. 1999). Prior to the statement in question, the
jury heard Deputy Scott testify Thomas spit on him. (Id. at 137.)
Officer Freestone testified he saw Thomas spit towards Deputy Scott. (R.
at 159.) Deputy Cox said he saw Thomas spit toward Deputy Scott,
that he observed what appeared to be saliva on Deputy Scotts chest, and
that he helped clean the liquid off Deputy Scotts chest afterwards. (Id.
at 214-15.) Thus, even if the trial court did err in admitting
Deputy Coxs statement, such error was harmless.
2. Application of Ind. Code § 35-42-2-6 and Risk of Disease
Thomas argues that if he did spit on Deputy Scott, the saliva landed
only on Deputy Scotts shirt, under which he wore a bulletproof vest.
Thus, the saliva did not come into contact with his skin, and therefore
the statute should not apply to his conduct. (Br. for Appellant at
6.) The record does not indicate Thomas preserved this question for appeal
by raising it at the trial court level; nor does Thomas argue fundamental
error in his brief. However, we prefer to resolve issues on the
merits, and we exercise our discretion to do so here.
Thomas cites Newman v. State, 677 N.E.2d 590 (Ind. Ct. App. 1997), the
only reported case dealing with Ind. Code § 35-42-2-6. (Br. for Appellant
at 5.) Newman was arrested for prostitution, and the arresting officers were
aware from previous arrests of Newman that she was HIV-positive. On appeal,
Newman challenged the sufficiency of the evidence to support the battery by body
waste conviction. This court found that Newman intentionally swung her head around
causing saliva to land on the officers. This evidence alone is sufficient
to support Newmans conviction of battery by body waste. Newman, 677 N.E.2d
Thomas distinguishes Newman by noting that in that case, the officers faced a
substantial risk of disease due to Newmans HIV-positive status and her physical resistance
to arrest. He argues for a strict reading of the statute and
notes that the statute does not explicitly allow for convicting a Defendant whose
bodily fluid has only landed on the clothing of a law enforcement officer.
(Br. for Appellant at 6.) Therefore, he argues, this court should
not expand the category of conduct prohibited by the statute to include incidents
such as Thomas where the officers were not faced with any substantial risk.
The State, in contrast, argues that the court in Newman did not distinguish
between whether Newmans saliva landed on the skin or clothing of the officers;
therefore, it also should not matter in Thomas case. The State argues
that the phrase on a law enforcement officer should be construed to mean
anywhere on an officer, regardless of skin or clothing. (Br. of Appellee
We first note that Deputy Scott testified the saliva hit his chest and
his hand; therefore, it appears the jury heard sufficient evidence to convict Thomas
even under his theory regarding how the statute should be interpreted. (R.
at 142.) However, we also wish to address the issue posed by
Thomas regarding the proper interpretation of this statute.
The critical question for this court is whether the statute is ambiguous on
its face. If the language of a statute is clear and unambiguous,
it is not subject to judicial interpretation. Montgomery v. Estate of Montgomery,
677 N.E.2d 571, 574 (Ind. Ct. App. 1997). However, when the language
is susceptible to more than one construction, we must construe the statute to
determine the apparent legislative intent. Id. We presume words appearing in
the statute were intended to have meaning and we endeavor to give those
words their plain and ordinary meaning absent a clearly manifested purpose to do
otherwise. Rupert v. State, 717 N.E.2d 1209, 1210 (Ind. Ct. App. 1999).
The pertinent portion of the statute is as follows:
35-42-2-6 Battery by body waste
(c) A person who knowingly or intentionally in a rude, insolent, or angry
manner places blood or another body fluid or waste on a law enforcement
officer or a corrections officer identified as such and while engaged in the
performance of official duties or coerces another person to place blood or another
body fluid or waste on the law enforcement officer or corrections officer commits
battery by body waste, a Class D felony.
(Emphasis added.) We decline to find that this statute is ambiguous.
As we are bound to give words in a statute their plain and
ordinary meaning, we find that on a law enforcement officer means just that
on the officers person, whether that portion of the officers person be
clothed or not. There is no language in the statute indicating the
fluid must contact the skin of the officer or pose a risk of
disease transmission for there to be a battery. In fact, it seems
plausible the legislature intended to penalize the offensive, even disgusting nature of such
a touching alone because the statute includes enhanced penalties for cases in which
a disease actually was or could have been transmitted to the officer.
As the statutory language is clear, and the jury heard more than enough
evidence that Thomas spit on Deputy Scott, we must affirm his conviction of
SHARPNACK, C.J., and BAILEY, J., concur.
Ind. Code § 35-42-2-6.
Footnote: We heard oral argument at the Gibson Circuit Court on April 5,
2001. We gratefully acknowledge the hospitality of Judges Walter H. Palmer and
Earl G. Penrod, the staff of their courts, and the Gibson County Bar.
We also commend counsel for their capable advocacy.
Footnote: Deputy Cox testified they were attempting to ascertain whether Thomas was sober
and licensed so that he might drive his girlfriends truck away.
Footnote: There is no indication from the record that the development of Deputy
Scotts health problems bore any relation whatsoever to Thomas spitting on him.
Footnote: The actual line of questioning went as follows:
Q: After the incident and the spitting incident did Jeff Scott ever
tell you that Mr. Thomas spit on you? [sic]
A: After the brief commotion of taking Mr. Thomas into custody yes,
that is what we applied the disinfectant to his shirt and to his
hands and my hands.
Q: Let me ask you about that. So, Deputy Scott did
tell that Mr. Thomas spit on him?
OBJECTION: (Mrs. Zelin) Objection your Honor. I move to strike Officer
Scott was here and testified as to what occurred.
BY MR. MARSHALL: That is why it is not hearsay Your Honor.
Because he was here and available to ask about it.
BY THE COURT: Overruled.
Q: Did he tell you he was spit on?
A: Yes sir, he did.
(R. at 255.)