ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JEFFREY D. STONEBRAKER KAREN M. FREEMAN-WILSON
Chief Public Defender Attorney General of Indiana
Deputy Attorney General
COURT OF APPEALS OF INDIANA
BARTHOLOMEW J. JOHNSON, )
vs. ) No. 10A01-0007-CR-240
STATE OF INDIANA, )
APPEAL FROM THE CLARK SUPERIOR COURT
The Honorable Steven M. Fleece, Judge
Cause No. 10D03-9804-CM-203
May 7, 2001
OPINION - FOR PUBLICATION
Bartholomew J. Johnson appeals his convictions for resisting law enforcement and disorderly conduct.
Specifically, he argues that the trial court improperly excluded a 911 tape
and erred by admitting testimony regarding the amount of damages sought by the
defendant in a related civil suit. He argues further that his convictions
are not supported by sufficient evidence. Because we find that no error
occurred in the exclusion of the 911 tapes or the admission of the
damage amount and sufficient evidence supports his resisting arrest conviction, we affirm.
However, because we find he engaged in political speech, we reverse his disorderly
Facts and Procedural History
The facts most favorable to the evidence reveal that on the morning of
April 2, 1998, Clark County Animal Control Officer Chester Copeland responded to a
call regarding a german shepherd chasing children at a school bus stop.
Clark County Police Officers Kevin Sims and Scott Johns accompanied Officer Copeland on
his investigation of the complaint. Because the complainant indicated that the german
shepherd belonged to Johnson, the officers drove to Johnsons home. Officers Copeland
and Sims spoke with Sherry Smothers, Johnsons wife at the time, about a
german shepherd who was on her porch. She told the officers that
she owned the dog. While they were talking, another dog approached the
house. Smothers informed the officers that the second dog did not belong
to her, but had belonged to a neighbor who had died and others
in the neighborhood had begun to feed the stray dog. Officer Copeland
caught the stray dog and took it to the animal shelter.
Later that same day, Johnson and Smothers visited the animal shelter. In
a loud and belligerent manner, Johnson told Officer Copeland that he owned the
stray dog, which had been removed, from his property earlier that day.
Eventually, Smothers convinced Johnson to leave the shelter.
After Johnson and Smothers departed, Officer Copeland informed Officer Johns that Johnson now
claimed to own the stray dog. As a result, Officer Johns returned
to the Johnson home in order to issue them a dog restraint violation.
When Officer Johns arrived at the Johnson home, Johnson came to the door
of his trailer. Officer Johns explained why he was there. In
response, Johnson called Officer Johns a mother f-----, told him to get the
f--- off of his land, and slammed the door in his face.
Record at 324. Officer Johns returned to his car and called for
backup. Smothers then appeared on the porch and motioned for Officer Johns
to return to the porch. Officer Johns joined Smothers on the porch
and tried to explain the citation to her. At some point during
their discussion, Johnson reappeared in the doorway to the trailer and started screaming
and hollering at the officer.
At trial, Officer Johns testified that Johnson was
[C]onstantly screaming at me, screaming at his wife not to take it, tear
the f------ thing up. Were not going to go to court.
All this time myself and Officer Sims were turning around and asking him
Sir, please go back in the residence. This isnt worth going to
jail over. If you continue this behavior, screaming and hollering, loud noises,
were going to arrest you for Disorderly Conduct. Mrs. Johnson was turning
around and at one time said Mr. or Bart, go back in the
house. If theyre wrong well settle it in court. Please go
back in the residence.
Record at 332. During this exchange, the officers warned Johnson several times
to calm down so they could do their job and that if he
did not calm down, they would arrest him for disorderly conduct. Johnson
called the sheriffs department, screamed for Smothers to take the telephone and talk
with the Sheriff. When she did not accept the phone, he threw
the phone towards her. The phone landed on the ground, Officer Johns
picked up the phone and briefly talked with the Sheriff. After Officer
Johns explained the situation, the Sheriff told him to issue the citation as
quickly as possible and leave.
Following the phone call, Johnson continued to yell and disrupt the issuance of
the citation. As Johnson stood in the doorway to his trailer, Officer
Johns grabbed his arm in order to arrest him. Johnson jerked away
from the officer and ran into the trailer. Officer Johns followed Johnson
into the trailer and a struggle ensued. After spraying Johnson with pepper
mace two times, the officers were able to handcuff the defendant. An
ambulance was called for because Johnson began experiencing chest pains and Smothers experienced
The State charged Johnson with resisting law enforcement and disorderly conduct. In
a motion in limine, the trial court ruled that evidence of Smothers medical
condition could not be admitted into evidence. The trial court also ruled
that recordings of two 911 telephone conversations were inadmissible because the recording was
hard to understand and contained information regarding Smothers health condition. In addition,
the trial court ruled that the amount of damages sought by Johnson and
Smothers in a related tort claim was inadmissible. However, the trial court
ruled that testimony that the amount was substantial would be allowed.
Following a jury trial, Johnson was convicted of disorderly conduct and resisting law
enforcement. Johnson filed a motion for judgment notwithstanding the verdict. The
trial court denied Johnsons motion. This appeal followed.
Discussion and Decision
Johnson challenges his convictions for Resisting Law Enforcement and Disorderly Conduct. He
alleges three bases upon which his convictions should be overturned. First, he
asserts that the trial court erred by excluding a 911 tape. Second,
he contends that the trial court erred by admitting the amount of damages
he sought in a related civil suit. Third, he maintains that his
convictions were not supported by sufficient evidence. We address each of these
arguments in turn.
Exclusion and Admission of Evidence
Johnson argues that the trial court erred by excluding two 911 tapes and
by admitting evidence regarding the amount of money sought in a civil suit.
A trial court has broad discretion in ruling on the admissibility of
evidence during trial. Robinson v. State, 720 N.E.2d 1269, 1271 (Ind. Ct.
App. 1999). We will only disturb a trial courts ruling on the
admissibility of the evidence upon a showing of an abuse of discretion.
A. 911 Tape
Johnson contends that the trial court erred in excluding two 911 telephone conversations
which were recorded on an audiotape. During trial, Johnson attempted to
have the 911 tapes admitted into evidence. Johnson argued that the tapes
were relevant to refute the testimony of Officer Johns and Officer Sims that
Johnson argued and yelled continuously while Officer Johns tried to explain the citation
to Smothers. In particular, Johnson claims the tapes disclose that there was
no yelling in the background when 911 was called. The trial court
listened to the tapes at trial outside the hearing of the jury.
In making its ruling, the trial court focused on the discussion in the
foreground of the tape, not the background, which would have included any yelling
by the defendant. The trial court excluded the tapes because the conversation
in the foreground focused on the medical conditions of Smothers and a motion
in limine covered this information. Thus, the trial court excluded the tapes.
Johnson has waived this issue on appeal because he failed to provide the
tapes or a transcript of the tape recordings in the record. It
is the appellants duty to provide the reviewing court with an adequate record
for review. Adams v. State, 539 N.E.2d 985, 988 (Ind. Ct. App.
1989). An appellant waives review of his claim if he fails to
provide the appellate court with an adequate record for review of his claim.
Id. Here, because Johnson failed to provide us with the tapes
or a transcript of the discussions presented on the tapes, we do not
have a complete record before us. Thus, this argument has been waived.
B. Admission of Civil Damages Sought
Johnson also challenges the trial courts admission of his testimony regarding the amount
of money he sought in a tort claim. Before trial, the trial
court ruled that testimony regarding the actual amount of damages sought by Johnson
and Smothers in their tort claim was inadmissible. However, the trial court
ruled that testimony which described the damages sought as a substantial amount was
During Johnsons cross-examination, the following colloquy occurred:
Q: . . . Isnt it correct that it is a substantial amount of
A: I suppose that could be described as substantial, yes, yes, a substantial amount
Q: Could be described. Its like winning the lottery, isnt it, to get
that kind of money.
Record at 714. Johnson objected to this line of questioning because the
trial court had previously determined that the actual amount of money would not
be admitted into evidence. Record at 714. The trial court overruled
the objection, noting:
If the Defendant wants to quibble as to whether $4 million and $3
million are substantial sums are [sic] not in a minute Im going to
let the State refer to it. I cannot see that there should
be any quibbling about this. I dont even think it would be
that terrible to let the Jury know the whole amount. I just
think its a bit off the mark. As a matter of relevancy
I wanted to stay [sic] substantial sum but I dont care for this
quibbling about whether millions of dollars are substantial or not.
Record at 715. When asked again whether receiving the sought for amount
of money would be like winning the lottery, Johnson replied, Again, I repeat,
I would not know. I have never won the lottery. Record
at 717. The discussion continued:
Q: Okay. That why dont you tell then the Ladies and Gentlemen
of the Jury what kind of money were talking about here?
Why dont you tell them how much.
OBJECTION: MR. MOSLEY: Ill object to---
OBJECTION: MR. MOSLEY: ---it for the reasons stated at the bench
and in the previous---
THE COURT: And for the reasons stated at the bench this time
Ill overrule the objection. This is what was redacted. I didnt
really want to throw the exact amount at you because I think its
its not that relevant, however, we now seem to have some dispute
as to whether the amount in question is substantial or not. I
thought wed just cover up the specific amount by everybody agreeing to refer
to it as substantial but since we now have a debate about whats
substantial I will overrule the objection. The State may ask for what
the specific amounts are.
Record at 717-18. Consequently, Johnson testified that he and Smothers were seeking
$7 million in their civil tort claim. Record at 718. II. Sufficiency of the Evidence
Here, the trial court initially determined that the actual amount of damages sought
was inadmissible, but maintained that the amount sought could be characterized as substantial.
During cross-examination, Johnson testified that the amount could be considered substantial and
that he did not know if it was an amount equivalent to winning
the lottery because he had never won the lottery. Record at 714,
717. By failing to acknowledge on cross-examination that the amount sought was
substantial, Johnson opened the door to the specific amount sought. When a
defendant interjects an issue in a trial, he opens the door to otherwise
inadmissible evidence. Tawdul v. State, 720 N.E.2d 1211, 1217 (Ind. Ct. App.
1999), trans. denied. In this case, Johnson opened the door to the
otherwise inadmissible amount of money. Thus, the trial court did not abuse
its discretion when it eventually allowed the amount into evidence.
Even if the trial court erred in excluding the 911 tapes or in
admitting the specific amount of money sought in the tort claim, such errors
would not dictate a reversal of his convictions. Errors in the admission
of evidence are deemed harmless unless they affect the substantial rights of a
party. Ind. Trial Rule 61; Fleener v. State, 656 N.E.2d 1140, 1142
(Ind. 1995). An error is harmless when there is substantial independent evidence
of guilt such that it is unlikely that the erroneously admitted evidence played
a role in the conviction. Johnson v. State, 671 N.E.2d 1203, 1207
(Ind. Ct. App. 1996), trans. denied. Here, there was substantial independent evidence
to support Johnsons convictions without the 911 tapes and despite the admission of
the exact amount of damages sought in the tort claim. Specifically, Officer
Johns testified that Johnson yelled and disturbed his attempt to issue and explain
the citation to Smothers. Furthermore, Officer Sims testified that while Officer Johns
tried to explain the citation to Smothers, Johnson stood in the doorway yelling.
In addition, both officers testified that they warned the defendant repeatedly that
if he did not refrain from his disruptive behavior he would be arrested.
Therefore, any error in the admission or exclusion of evidence was harmless.
Johnson claims that his convictions were not supported by sufficient evidence. When
reviewing the sufficiency of the evidence, we neither reweigh the evidence nor judge
the credibility of witnesses. Mullins v. State, 717 N.E.2d 902, 903 (Ind.
Ct. App. 1999). Instead, we look to the evidence most favorable to
the State and all of the reasonable inferences to be drawn from that
evidence. Id. We will affirm a judgment that is supported by
substantial evidence of probative value. Id.
Johnson alleges that there was insufficient evidence to support his conviction for Disorderly
Conduct. To convict Johnson of Disorderly Conduct as a class B misdemeanor, the
State was required to prove beyond a reasonable doubt that Johnson (1) recklessly,
knowingly, or intentionally; (2) made unreasonable noise and continued to do so after
being asked to stop. Ind. Code § 35-45-1-3. Johnson claims that
the State failed to meet its burden. In particular, Johnson maintains that
he was engaged in political speech at the time of his arrest and,
therefore, his speech was protected by Article I, Section 9 of the Indiana
A two-step inquiry is applied when we review the constitutionality of an application
of the disorderly conduct statute. First, we must determine whether state action
has restricted a claimants expressive activity.
Shoultz v. State, 735 N.E.2d 818,
825 (Ind. Ct. App. 2000), trans. denied, (citing Whittington v. State, 669 N.E.2d
1363, 1367 (Ind. 1996)). Second, if it has, we must decide whether
the restricted activity constituted an abuse of the right to speak. Id.
The first prong of the inquiry may be satisfied by a persons
conviction for making unreasonable noise based solely on his loud speaking during a
police investigation. Id. (citing Johnson v. State, 719 N.E.2d 445, 449 (Ind.
Ct. App. 1999)). Under the second prong, when reviewing the States determination
that expression was an abuse of the free speech right under the Indiana
Constitution, we are typically only required to find that the determination was rational.
Whittington, 669 N.E.2d at 1369.
Expressive activity is political, for purposes of the responsibility clause of Article I,
Section 9 of the Indiana Constitution, if its point is to comment on
government action, including criticism of the conduct of an official acting under color
of law. Whittington, 669 N.E.2d at 1370. However, where an individuals
expression focuses on the conduct of a private partyincluding the speaker himself or
herselfit is not political. Id. We judge the nature of expression
by an objective standard, and the burden is on the claimant to demonstrate
that his or her expression would have been understood as political. Id.
If the expression is ambiguous, we must conclude the speech was non-political
and review the constitutionality of a disorderly conduct conviction under standard rationality review.
Here, Johnson has met the first prong of the test by showing that
the State restricted his expressive activity. See Johnson v. State, 719 N.E.2d
445, 449 (Ind. Ct. App. 1999) (holding that this prong is satisfied by
a persons conviction for making unreasonable noise based solely on his loud speaking
during a police investigation). Johnson argues that he meets the second prong
of the test because he was engaged in political speech.
If the speech leading to a disorderly conduct conviction is political, the State
must demonstrate that it has not materially burdened the claimants opportunity to engage
in political speech. Whittington, 669 N.E.2d at 1369. Expression is not
materially burdened if the State produces evidence that the speech inflicted particularized harm
analogous to tortious injury on readily identifiable private interests. Id. at 1370.
This requires evidence that the speech caused actual discomfort to persons of
ordinary sensibilities or that it interfered with an individuals comfortable enjoyment of his
privacy. Price v. State, 622 N.E.2d 954 (Ind. 1993).
In this case, Officer Johns testified that he arrested Johnson for disorderly conduct
because he was interfering with me explaining the citation to his wife .
. . because of the loud noise he continuously made for ten minutes.
Record at 85-6. In addition, he testified that:
Mr. Johnson would not would not let me explain the citation. .
. . He was constantly screaming at me, screaming at his wife not
to take it, tear the f---ing thing up. Were not going to
pay it. Were not going to go to court. All this
time myself and Officer Sims were turning around and asking him Sir, please
go back in the residence. This isnt worth going to jail over.
If you continue this behavior, screaming and hollering, loud noises, were going
to arrest you for Disorderly Conduct. Mrs. Johnson was turning around and
at one time said Mr. or Bart, go back in the house.
If theyre wrong well settle it in court. Please go back in the
Record at 332. He testified further that Johnson stated that I didnt
have a reason to be there, that I didnt have a warrant .
. . Record at 361.
Resisting Law Enforcement
Here, Johnson commented on government action. While Officer Johns tried to explain
the citation to Smothers, Johnson loudly told the officer that he did not
have a reason to be there and that he did not have a
warrant. In addition, he informed the officer that he and Smothers would
not pay any fine associated with the citation and that he would not
go to court. During this exchange, he also told Smothers not to
accept the citation and to tear up the citation. Johnsons speech was
directed at the legality and appropriateness of Officer Johns conduct toward Smothers.
Johnson criticized the conduct of an official acting under color of law.
Thus, this speech, which Johnson engaged in before his arrest, was protected political
speech. See Shoultz v. State, 735 N.E.2d at 826-27 (holding that the
defendant engaged in protected political speech when he asked the arresting police officer
what the problem was and why he was bothering other people, demanded whether
the officer had a warrant to be on the property, and requested that
the officer leave if he did not have a warrant), trans. denied.
Accordingly, Johnson has met the second prong of the test.
As a result, the State was required to produce evidence that Johnsons speech
inflicted particularized harm analogous to tortious injury on readily identifiable private interests.
Whittington, 669 N.E.2d at 1370. The State failed to present such evidence.
Therefore, because this was protected political speech, there is insufficient evidence of
disorderly conduct to support the conviction.
In conclusion, we note that the State also argues that Johnsons disorderly conduct
conviction should be affirmed because Johnsons yelling interfered with Officer Johns in his
attempts to answer Smothers questions regarding the citation . . .
Appellees Brief at 10. However, the disorderly conduct convictions that have previously
been upheld because the defendants unreasonably loud speech interfered with a police investigation,
involved non-political speech. See Whittington, 669 N.E.2d at 1371; Johnson, 719 N.E.2d
at 449. Non-political speech is examined under the rationality standard. Here,
Johnson engaged in political speech. Because it was political speech, we cannot
affirm the conviction for interference with the police investigation. Thus, we reverse
Johnsons conviction for disorderly conduct.
Johnson also contends that there was insufficient evidence to support his conviction for
Resisting Law Enforcement. To convict Johnson of Resisting Law Enforcement as a
class A misdemeanor, the State was required to prove beyond a reasonable doubt
that Johnson (1) knowingly or intentionally; (2) forcibly resisted, obstructed, or interfered; (3)
with a law enforcement officer; (4) while the officer was lawfully engaged in
the execution of his duties as an officer. Ind. Code § 35-44-3-3(a).
Johnson contends that there was insufficient evidence to support the conviction for Resisting
Law Enforcement because the State failed to establish that Officer Johns was lawfully
engaged in his duties as an officer because he illegally entered Johnsons home
without a warrant to arrest him. Johnson relies on Adkisson v. State,
728 N.E.2d 175 (Ind. Ct. App. 2000) in arguing that his conviction should
be reversed. The State counters that Officer Johns legally arrested Johnson and
that Adkisson can be distinguished from this case. We agree with the
A law enforcement officer may arrest a person when the officer has probable
cause to believe the person is committing or attempting to commit a misdemeanor
in the officers presence. Ind. Code § 35-33-1-1(a)(4). Furthermore, under the
Fourth Amendment of the United States Constitution, when probable cause exists for a
warrantless search, an officer may enter a defendants home when exigent circumstances exist.
Payton v. New York, 445 U.S. 573, 576, 100 S.Ct. 1371 (1980).
In Adkisson, police officers investigated a disturbance between neighbors at an apartment complex.
When they arrived at Adkissons door and knocked, she did not open
the door. Id. at 176. They spoke to her from outside
the closed door. The police officers then left Adkissons door to question
her neighbors and another officer questioned Adkisson. Id. At this time,
the officer spoke to her while he stood just outside her now open
door and Adkisson remained inside her apartment. Id. at 177.
When Adkisson tried to shut her door, the officer put his foot in
the doorway. Id. The officer then informed her that she was
under arrest and entered her apartment to place her under arrest. Id.
A struggle ensued between the two before the officer succeeded in handcuffing
Adkisson. Id. Adkisson was convicted of resisting law enforcement. On
appeal, we held that the police officers forcible entry into Adkissons home to
obtain her arrest was unlawful. Id. at 178. We reasoned that
her arrest was unlawful because her arrest was not initiated in a public
This case can be distinguished from Adkisson. In this case, when Officer
Johns first approached Johnsons door, he knocked on the door and explained why
he was there. Johnson then swore at the officer and slammed the
door on him. Record at 324. Following this, Officer Johns returned
to his car and called for backup. Smothers then motioned to Officer
Johns from the porch encouraging him to return. Officer Johns then returned
to the house and began writing the citation out to Smothers. At
some point during their exchange, Johnson returned to the door of the home
and began his verbal assault of the officer. Officer Johns testified that
Johnson was standing in the doorway consistently screaming and hollering and cussing.
Record at 331. In Adkisson, the defendant remained inside her apartment at
all times and tried to keep the police officer outside her home by
shutting the door. Here, Johnson was in the doorway, not still in
the house as in Adkisson. Furthermore, on Officer Johns second visit to
the porch, Johnson opened the door on his own. Officer Johns did
not knock for entry. Moreover, Johnson was engaged in a public confrontation
with Officer Johns. He was verbally interjecting himself into the situation between
the officer and his wife. In addition, contrary to the officer in
Adkisson who approached the door without invitation, Smothers invited Officer Johns onto the
porch by waving for him to return. Johnson and Smothers took several
steps that distinguish this case from Adkisson. Therefore, we do not find
Adkisson persuasive authority to support reversal in this case.
Here, Johnson was standing in the doorway in plain view interfering with Officer
Johns attempt to issue and explain the citation. Furthermore, Officer Johns initiated
the arrest of Johnson while Johnson was in the doorway. When the
officer entered the home, he was in hot pursuit of Johnson, following him
from a public space to a private space. Thus, we find that
Officer Johns was lawfully engaged in the execution of his duties when he
Moreover, in Indiana the general rule is that a private citizen may not
use force in resisting a peaceful arrest by an individual who he knows,
or has reason to know, is a police officer performing his duties regardless
of whether the arrest in question is lawful or unlawful. Casselman v.
State, 472 N.E.2d 1310, 1315 (Ind. Ct. App. 1985)(quoting Williams v. State, 160
Ind. App. 294, 311 N.E.2d 619, 621 (1974)). Thus, even though we
reversed Johnsons conviction for disorderly conduct, we need not reverse the resisting law
enforcement conviction. In this case, there was sufficient evidence to support Johnsons
conviction for resisting law enforcement. Thus, we affirm his conviction for resisting
Judgment reversed in part and affirmed in part.
NAJAM, J., and KIRSCH, J., concur.
Article I, Section 9 of the Indiana Constitution provides that No
law shall be passed, restraining the free interchange of thought and opinion, or
restricting the right to speak, write, or print, freely, on any subject whatever:
but for the abuse of that right, every person shall be responsible.