Moore v. State Of Ind.
| Decision Date | 21 October 2010 |
| Docket Number | No. 49A04-1001-CR-46,49A04-1001-CR-46 |
| Parties | BRENDA MOORE, Appellant-Defendant, v. STATE OF INDIANA, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
FOR PUBLICATION
ATTORNEY FOR APPELLANT: SUZY ST. JOHN Marion County Public Defender Indianapolis, Indian
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana
APPEAL FROM THE MARION SUPERIOR COURT The Honorable Israel Cruz, Commissioner
Cause No. 49F10-0810-CM-276934
OPINION-FOR PUBLICATION
Brenda Moore was convicted following a bench trial of public intoxication, a Class B misdemeanor. Moore appeals her conviction, raising one issue for our review: whether her conviction "violate[s] the spirit and policy behind the public intoxication statute." Brief of Appellant at 1. Concluding under the circumstances Moore was not in a public place and therefore the evidence is insufficient to support a conviction of public intoxication, we reverse.
On the evening of December 5, 2008, Moore had a couple of beers at her sister's house. Lynn Roberts, a friend of Moore's brother, stopped by the house and asked for a ride to check on a friend who had just been released from the hospital. Moore told Roberts she could not drive him because she had been drinking, but told him "if he had a license, then he was more than welcomed [sic] to drive" her car. Transcript at 18. Roberts accepted the offer, and Moore accompanied him as a passenger.
Indianapolis Metropolitan Police Department officer John Schweers pulled Moore's car over as it traveled on northbound Sherman Avenue because it lacked a working license plate light. Moore was asleep when the car was stopped. Officer Schweers discovered that Roberts did not have a valid driver's license. Officer Schweers inquired as to whether Moore would be able to drive the vehicle, but determined she was intoxicated; Moore herself admitted at trial she was too intoxicated to drive that night. Both Roberts and Moore were arrested and the car was impounded and towed.
The State charged Moore with public intoxication.1 Following a bench trial, Moore was found guilty as charged and sentenced to 180 days with 174 days suspended and credit for 3 days served pre-trial. Moore now appeals.
When reviewing the sufficiency of the evidence to support a criminal conviction, we neither reweigh the evidence nor judge witnesses' credibility. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). Rather, we consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We will affirm the conviction if the probative evidence and the reasonable inferences drawn therefrom could have allowed a reasonable trier of fact to find all elements of the crime proven beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).
Public intoxication is defined by statute as being "in a public place or a place of public resort in a state of intoxication caused by... use of alcohol...." Ind. Code § 7.1-5-1-3. A "public place," for purposes of this statute, Christian v. State, 897 N.E.2d 503, 504-05 (Ind. Ct. App. 2008) (citations and quotationsomitted), trans. denied. Our supreme court long ago stated the purpose of the public intoxication statute: "The purpose of the law is to protect the public from the annoyances and deleterious effects which may and do occur because of the presence of persons who are in an intoxicated condition." State v. Sevier, 117 Ind. 338, 340, 20 N.E. 245, 246 (1889); see also Wright v. State, 772 N.E.2d 449, 456 (Ind. Ct. App. 2002) ().
In Miles v. State, 247 Ind. 423, 425, 216 N.E.2d 847, 849 (1966), our supreme court held a man who was in his tractor-trailer cab parked alongside the highway was in a public place for purposes of the public intoxication statute. Subsequently, this court applied Miles in holding a passenger in a vehicle traveling on a public highway was in a public place and therefore subject to a charge of public intoxication. Atkins v. State, 451 N.E.2d 55, 56 (Ind. Ct. App. 1983). Moore concedes she "cannot dispute she was intoxicated in a 'public place' as defined" by these two cases. Brief of Appellant at 5. She argues, however, that she was "subject to arbitrary application of the law when her conviction does not serve the statute's purpose." Id.
In Miles, police were informed of "a situation involving some danger" and found the defendant slumped over the steering wheel in his tractor-trailer with the window open and the engine running. 247 Ind. at 425, 216 N.E.2d at 849. His truck was parked approximately three to four feet from the traveled portion of a busy highway. When the defendant exitedthe cab at the officer's request, the officer observed signs of intoxication and arrested the defendant for public intoxication. On appeal, the defendant argued his conviction of public intoxication should be reversed because he was in his truck cab when the officer encountered him and was therefore not in a public place. Our supreme court, referring specifically to the truck's open window and proximity to the road, held that under the circumstances, the defendant was in a public place within the meaning of the public intoxication statute. Id.
Although not discussed in the Miles opinion, we note that when Miles was decided in 1966, the public intoxication statute was nearly identical to the current public intoxication statute but the statute dealing with intoxication and motor vehicles was different. In 1966, the crime was "driving while intoxicated," see Acts 1963, c. 282, s. 1, and caselaw at the time required the vehicle to be in motion in order to sustain a conviction under the statute. See Poling v. State, 156 Ind. 145, 148, 295 N.E.2d 635, 637 (1973) ( ). It was not until the 1970s that the statute was rewritten to proscribe "operating" a vehicle while intoxicated, see Ind. Code § 9-4-1-54(b) (1971), and a driver in sole control of a running vehicle stopped on a public highway could be convicted under that statute, see Rose v. State, 168 Ind. App. 674, 679-80, 345 N.E.2d 257, 260 (1976) ().
Nearly twenty years after the Miles decision, this court was presented with an appeal by a defendant who was one of seven passengers in an automobile traveling on a public highway when it was stopped by police. The arresting officer testified to the signs of the defendant's intoxication upon her exit from the vehicle and she was convicted of public intoxication. On appeal, she argued that she was not in a public place because she was in a private automobile until she was asked to exit the vehicle by police officers. This court held:
Atkins' specific argument was rejected in [Miles] where our supreme court held a person in a motor vehicle stopped along the traveled portion of a highway was in a public place. Therefore, the facts surrounding Atkins exit of the automobile are irrelevant. So, too, are the facts as to the vehicle moving or not moving and its windows and doors being closed or not closed.
Atkins, 451 N.E.2d at 56 (footnote omitted). The differences between Miles and Atkins seem to us to be significant: in Miles, the defendant was the sole occupant of a running vehicle that was parked alongside a highway, apparently near enough to warrant someone reporting it to be a dangerous situation; whereas in Atkins, the defendant was a passenger in a vehicle traveling upon a highway and there is no indication of why the vehicle was stopped by police. Because we do not know all of the relevant facts surrounding the stop of the vehicle in Atkins, we are unwilling to say we disagree with that opinion. Nonetheless, Atkins is not controlling precedent because it has never been adopted by the Indiana Supreme Court and we decline to follow its reasoning in this case.
The differences between Miles and this case are also significant: the sole occupant of a running and dangerously parked vehicle arrested at a time when a charge of operating while intoxicated was not possible under such circumstances, versus a sleeping passenger in avehicle traveling upon a public road stopped for an equipment violation. Given the factual differences between Miles and this case, we do not believe Miles compels the result that Moore was in a public place. See Whatley v. State, 708 N.E.2d 66, 68 (Ind. Ct. App. 1999) (Sullivan, J., concurring) (). Excepting Atkins, the cases that have followed Miles have involved intoxicated persons in parked or stopped vehicles in places accessible to the public. See Heichelbech v. State, 258 Ind. 334, 340-41, 281 N.E.2d 102, 106 (1972) (...
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