Cornell v. State, 2-179A9

• Court: Court of Appeals of Indiana
• Citation: 398 N.E.2d 1333
• Docket Number: No. 2-179A9,2-179A9
• Parties: Robert CORNELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Decision Date: 15 January 1980

Page 1333

398 N.E.2d 1333

Robert CORNELL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-179A9.

Court of Appeals of Indiana, Second District.

Jan. 15, 1980.

Rehearing Denied Feb. 22, 1985.

Nancy E. Gardner, Fowler, for appellant.

Theodore L. Sendak, Atty. Gen., Gordon R. Medlicott, Deputy Atty. Gen., Indianapolis, for appellee.

SHIELDS, Judge.

Defendant-appellant Robert Cornell appeals his conviction of Public Intoxication ¹ raising five issues for our review. However, we need only address Cornell's contention the evidence failed to reveal he was in a "public place or a place of public resort."

We reverse.

The evidence most favorable to the State reveals: Ray Brummett is a farmer residing in a rural area about four miles west of Brookston, White County. On December 1, 1977 Ray's son, Rex, arrived for work on the farm at approximately 6:30 A.M. and informed Ray "there is a fellow down the road that might need some help." Ray then accompanied Rex to Morehouse Road where Rex had observed a pick-up truck parked off the road. They walked up to the vehicle and observed Cornell inside, apparently asleep, with a shotgun in his lap. After unsuccessfully trying to awaken Cornell by pounding on the windows, Ray contacted his wife over the citizen's band radio and told her to phone the police.

Subsequently, State Police officer Corso arrived at the scene. When Corso's attempts to awaken Cornell were unsuccessful, he pried open a window and removed Cornell from the truck. Cornell's clothing was disarranged, his eyes were red and glassy, his speech was incoherent, he had an odor of alcohol about him, and he needed assistance in walking. Corso placed Cornell under arrest for public intoxication and transported him to the White County jail.

The critical issue is whether Cornell was found intoxicated in a public place or a place of public resort within the meaning of IC 7.1-5-1-3, Supra. The place Cornell was found is near a rural "T" intersection where a worn-down lane leads into a farmer's field. Cornell's pick-up truck was found parked off this lane, "just into the edge of the field," approximately twenty to thirty feet from the intersection. ² No inquiries were made concerning ownership of the field or whether Cornell had permission to be in the field.

Thus, the issue we decide is whether a person sitting in a motor vehicle parked off a lane entering an open field twenty to thirty feet from the traveled portion of a road is in a "public place or a place of public resort" as contemplated by the public intoxication statute, IC 7.1-5-1-3. ³

The State relies upon Heichelbech v. State, (1972) 258 Ind. 334, 281 N.E.2d 102, and Miles v. State, (1966) 247 Ind. 423, 216 N.E.2d 847, in support of its contention Cornell was in a public place or a place of public resort. The State is also of the opinion since "Appellant had been on the road; he had to be on it to reach the point where he was found," then any "rule that an intoxicated driver may claim immunity from the law by crossing to the edge of an unfenced field adjacent to a public road is anything but the spirit of the law."

It is the opinion of this Court that neither Heichelbech v. State, supra, Nor Miles v. State, supra, support the State's contention Cornell was found in "a public place or a place of public resort." Miles involved an appeal from a conviction of public intoxication. The facts were that a police officer was looking for the appellant, having "apparently been informed of a situation involving some danger," when he observed the appellant's tractor-trailer rig parked on the berm, "approximately three or four feet from the traveled portion of a busy highway." Appellant was in the cab of the truck "slumped over the wheel with his head down." A window of the cab was down and the engine was running. The officer asked to see the appellant's license and then had him exit the truck. After observing signs of intoxication, the officer arrested appellant for public intoxication.

The first contention the appellant raised in Miles was because no offense was committed in the officer's presence the request to step out of the truck was an illegal search resulting in an improper arrest and, therefore, all evidence connected with it should have been suppressed. In addressing this contention, the court stated police officers "have a right and duty to make reasonable investigation of situations which pose possible hazards for motor vehicle traffic," and the officer's investigation was reasonable under the circumstances of this case. In support of the reasonableness of the investigation the court pointed out the "truck was parked very near the traveled portion of a heavily traveled highway," with the motor still running, and stated at 247 Ind. at 425, 216 N.E.2d at 849:

Such a situation seems to demand investigation not only for the safety of others but for the possible safety of the driver himself.

The second contention raised in Miles was, "the appellant was in his truck cab, and was therefore not in a public place." In addressing this contention the court noted there "is some authority to uphold a conviction under this statute of a person in a motor vehicle at the time of the arrest," citing Winters v. State, (1928) 200 Ind. 48, 160 N.E. 294. In holding under the circumstances of the case "the appellant was in a public place within the meaning of the statute," the court pointed out, "appellant was in the cab of a truck with the window open, approximately three or four feet from the traveled portion of a busy highway."

Heichelbech v. State, supra, involved an appeal from a conviction of committing bodily injury upon a police officer while resisting arrest. The facts of the case were that a police officer, after receiving a radio dispatch that the appellant was intoxicated and driving a motor vehicle on the same road he was on, turned his vehicle around when appellant passed him in the opposite direction. The officer followed appellant but, before he was able to stop him, appellant entered a service station, parked his vehicle next to a fuel pump and exited the vehicle. Appellant failed an on-the-scene sobriety test and an altercation ensued when the officer requested appellant accompany him to headquarters for a breathalyzer test.

Since the record was unclear as to whether the attempted arrest was for public intoxication or for operating a motor vehicle while under the influence of alcohol, in addressing appellant's contention the officer had no authority to arrest him without a warrant for misdemeanor not committed in the presence of the officer, the Heichelbech court held that "(i)n either event, the evidence is clear that both offenses were committed in the officer's presence." 258 Ind. at 340, 281 N.E.2d at 105.

The Heichelbech court went on to address appellant's contention the attempted arrest was for public intoxication and that "he was not in a public place," and held, albeit Dicta, an automobile service station, a business establishment open to the public, although private property, was, nevertheless, "either a 'public place or a place of public resort' within the meaning of (the public intoxication statute)." 258 Ind. at 340, 281 N.E.2d at 106. In support of this conclusion the court stated:

A gasoline service station was held to be a public place within the ambit of a similar statute in State v. Fenner (1965), 263 N.C. 694, 140 S.E.2d 349. Moments earlier, the defendant was seen in his automobile within a public highway. We cannot assume that his condition had changed in the interim. A truck parked on the side of the highway was held to be a public place under the same statute in Miles v. State (1966), 247 Ind. 423, 216 N.E.2d 847.

258 Ind. at 341, 281 N.E.2d at 106.

Although Miles is pertinent, the case Sub judice is distinguishable. In the first instance, Miles is supportive of Officer Corso's investigation of Cornell. The Brummetts were unable to arouse Cornell and were unsure as to his condition. Under these circumstances, Corso had a right to make a reasonable investigation for the possible safety of Cornell. Moreover, the fact Cornell was in his motor vehicle would not otherwise preclude a conviction for public intoxication. The fact remains, however, that, unlike the appellant in Miles, Cornell was not on the berm approximately three or four feet from the traveled portion of a busy highway; rather, Cornell was parked off a private lane entering private property approximately twenty to thirty feet from the traveled portion of a rural country road.

Furthermore, Heichelbech is inapposite to the case at bar. While an automobile service station may be a public place or a place of public resort, the same cannot be said of a private lane entering private property. By its very nature, a gasoline service station, during its business hours, is open to the public generally to come utilize the services it has to offer. In this case, however, there is no evidence the private lane entering the field where Cornell was found is open to, or utilized by, the public generally.

Moreover, the Heichelbech court's reliance on Miles appears to support the State's contention an intoxicated driver may not claim immunity from the public intoxication statute by leaving the highway and entering onto private property. Such proposition, however, is inapplicable to the case at bar. There is no evidence Cornell was seen in an intoxicated condition on the road before he parked his pick-up truck in the place he was found, nor is there any evidence from which such an inference may be drawn. To the contrary, from the evidence it is just as easy to infer Cornell parked his truck in the place he was found before he imbibed any spirits.

An analysis of the public intoxication statute in light of its objective does not support the State's position. In State v. Seiver, (1889) 117 Ind. 338, 20 N.E. 245, our Supreme Court stated at 117 Ind....