Beiler v. State , No. 38A02–1109–CR–839.

Docket NºNo. 38A02–1109–CR–839.
Citation968 N.E.2d 869
Case DateMay 24, 2012
CourtCourt of Appeals of Indiana

968 N.E.2d 869

Bret BEILER, Appellant–Defendant,
STATE of Indiana, Appellee–Plaintiff.

No. 38A02–1109–CR–839.

Court of Appeals of Indiana.

May 24, 2012.

Appeal from the Jay Superior Court; The Honorable Max C. Ludy, Jr ., Judge; Cause No. 38D01–1011–CM–176.
Dale W. Arnett, Winchester, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.


KIRSCH, Judge.

Bret Beiler (“Beiler”) was convicted after a jury trial of public intoxication,1 a Class B misdemeanor, and resisting law enforcement 2 as a Class A misdemeanor. He appeals raising several issues, which we consolidate and restate as:

I. Whether sufficient evidence was presented to support his conviction for public intoxication because he contends that he was not in a public place and that there was insufficient evidence to prove intoxication;

II. Whether the police violated the Fourth Amendment to the United States Constitution by using unreasonable force when arresting Beiler; and

III. Whether the trial court abused its discretion when it gave Final Instruction 8(A).

We affirm.


On April 17, 2010, at approximately 1:00 a.m., Captain Mike Kreps (“Captain Kreps”) and Officer Brad Miller (“Officer Miller”) of the Dunkirk City Police Department were on patrol in full uniform and driving an unmarked police vehicle. As they approached the intersection of Lincoln Avenue and Angle Street in Jay County, the officers observed a car parked in front of three mobile homes with its passenger door open. Both Captain Kreps and Officer Miller saw a leg inside the vehicle on the passenger side. The officers were suspicious because of the time of night, the fact that the car door was open, and that only a leg was visible, so they exited their vehicle to investigate.

The car was parked in a common parking area for the mobile homes. The parking area was located directly in front of three trailers. There were no assigned parking spaces in the parking area, and it was available for use by the residents of the mobile home community and any visitors of the residents. The parking area was open to the public, and anyone visiting the area could park there.

When the officers reached the car, they saw a man, later identified as Beiler, inside the car on the passenger side. Captain Kreps observed that Beiler was slumped over, leaning toward the driver's side, and he could not determine if Beiler was “asleep, awake, alive, or dead.” Tr. at 34. Captain Kreps shook Beiler to wake him, and when Beiler did wake up, Captain Kreps asked to see his identification. Beiler complied and handed the officer his identification. Both Captain Kreps and Officer Miller could smell the odor of alcohol emanating from Beiler. The officer also saw that Beiler's belt was unbuckled and his pants were unbuttoned with the zipper down. They also noticed a wet spot on the ground outside of the passenger side of the car that smelled like urine.

Captain Kreps asked Beiler why he was in the car, and Beiler replied that Jody, who was his roommate, “had locked him out because he was drunk.” Id. at 36. Beiler had bloodshot eyes and slurred speech. Because Captain Kreps was concerned about Beiler's medical condition and wanted to determine how intoxicated he was, he asked Beiler to exit the car and submit to a portable breath test (“PBT”). Beiler refused to exit the car and told Captain Kreps that he believed that the officer was going to arrest him for public intoxication. Id. at 38. Captain Kreps told Beiler that, at that time, the officers only wanted to check and make sure he was all right, and if so, he could go home. Id. Beiler still refused to exit the car and began yelling and screaming at the officers. Because Beiler refused to comply with the officers' verbal commands, Captain Kreps reached into the car, grabbed a hold of Beiler's arm, and attempted to remove Beiler from the car. Beiler tried to shut the door on Captain Kreps's hand, then grabbed onto the center console of the car, and continued to scream profanities at the officers.

Captain Kreps took his taser out and warned Beiler that if he did not exit the vehicle, he would be tased. Id. at 69. Beiler continued to refuse to exit, so Captain “drive stunned” 3 him. Beiler still refused to exit the car and “had his foot on the inside of the vehicle and was pushing himself back and was not letting [the officers] get him out of the vehicle.” Id. at 41. Captain Kreps applied his taser to Beiler a second time, and the officers were able to remove Beiler from the car. Once on the ground outside of the car, Beiler continued to struggle by “kicking all over the place.” Id. at 42. Beiler also continued to scream profanities at the officers after being removed from the vehicle. The officers were eventually able to handcuff Beiler. Based on their training and experience as police officers, both officers believed that Beiler was intoxicated.

The State charged Beiler with public intoxication as a Class B misdemeanor and resisting law enforcement as a Class A misdemeanor. A jury trial was held, and after the presentation of evidence, the State proposed Final Instruction 8(A), which stated: “A private citizen may not use force or resist arrest by one he knows or has good reason to believe is an authorized officer performing his duties, regardless of whether the arrest is illegal in the circumstances of the occasion.” Appellant's App. at 150. Beiler objected to giving the instruction, arguing it was contrary to the resisting arrest statute. Tr. at 118–20. The trial court gave the instruction to the jury over the objection of Beiler. At the conclusion of the jury trial, Beiler was found guilty as charged. The trial court sentenced him to six months executed for his public intoxication conviction and one year executed for his resisting law enforcement conviction, with the sentences to be served concurrently. Beiler now appeals. Additional facts will be provided as necessary.

I. Sufficient Evidence

Our standard of review for sufficiency claims is well-settled. When we review a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind.Ct.App.2009) (citing Jones v. State, 783 N.E.2d 1132, 1139 (Ind.2003)). We look only to the probative evidence supporting the judgment and the reasonable inferences therein to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support the conviction, it will not be set aside. Id. It is the function of the trier of fact to resolve conflicts of testimony and to determine the weight of the evidence and the credibility of the witnesses. Yowler v. State, 894 N.E.2d 1000, 1002 (Ind.Ct.App.2008).

Beiler argues that the State failed to present sufficient evidence to support his conviction for public intoxication. In order to convict Beiler of public intoxication, the State was required to prove beyond a reasonable doubt that Beiler was in a public place or a place of public resort in a state of intoxication caused by his use of alcohol or a controlled substance. Ind.Code § 7.1–5–1–3.

A. Public Place

Beiler contends that he was not in a public place when the officers observed and approached him, and he should not have been arrested or convicted of public intoxication. He asserts that the parking area where he was located when the officers observed him was private property and not a public place because the parking area was for residents and their invitees. Beiler therefore argues that the State failed to prove his conviction for public intoxication.

“A ‘public place’ does not mean only a place devoted to the use of the public.” Jones v. State, 881 N.E.2d 1095, 1097 (Ind.Ct.App.2008) (citing Wright v. State, 772 N.E.2d 449, 456 (Ind.Ct.App.2002)). “It also means a place that ‘is in point of fact public, as distinguished from private,—a place that is visited by many persons, and usually accessible to the neighboring public.’Id. We have also deemed the term to include a place open to common and general use, participation and enjoyment; a place accessible to the public. Wright, 772 N.E.2d at 455. “A private residence, including the grounds surrounding it, is not a public place.” Christian v. State, 897 N.E.2d 503, 504–05 (Ind .Ct.App.2008) (citing Moore v. State, 634 N.E.2d 825, 827 (Ind.Ct .App.1994)), trans. denied (2009).

In support of his argument, Beiler cites to three cases where this court reversed convictions for public intoxication. In Christian v. State, this court reversed the defendant's conviction for public intoxication, concluding that the State failed to prove that she was located in a public place because she was in a driveway/parking area between two residences that was perpendicular to a public street, and the State did not present evidence that the parking area was used by the public in general. 897 N.E.2d at 505. Similarly, in Jones v. State, we reversed a defendant's conviction for public intoxication where she was sitting in a vehicle parked in a driveway behind a vacant house, next to an alley. 881 N.E.2d at 1097–98. We concluded that she was sitting in a vehicle parked on private property. Id. at 1098. Finally, in Moore v....

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