Morgan v. State

• Decision Date: 13 February 2014
• Docket Number: No. 49A02–1304–CR–386.,49A02–1304–CR–386.
• Citation: 4 N.E.3d 751
• Parties: Rodregus MORGAN, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

4 N.E.3d 751

Rodregus MORGAN, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 49A02–1304–CR–386.

Court of Appeals of Indiana.

Feb. 13, 2014.

Held Unconstitutional

West's A.I.C. 7.1–5–1–3(a)(4)Suzy St. John, Indianapolis, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

RILEY, Judge.

STATEMENT OF THE CASE

Appellant, Rodregus J. Morgan (Morgan), appeals his conviction for public intoxication, a Class B misdemeanor, Ind.Code § 7.1–5–1–3, and disorderly conduct, a Class B misdemeanor, I.C. § 35–45–1–3(a).

We affirm in part and reverse in part.

ISSUES

Morgan raises three issues on appeal, two of which we find dispositive and restate as the following:

(1) Whether Indiana's public intoxication statute is unconstitutionally vague; and

(2) Whether there is sufficient evidence to sustain Morgan's conviction for disorderly conduct.

FACTS AND PROCEDURAL HISTORY

On the morning of August 31, 2012, Officer Brycen Garner (Officer Garner) of the Indianapolis Metropolitan Police Department (IMPD) was working for his part-time employer, IndyGo Bus Service. While stationed at a bus stop located on Ohio Street in Indianapolis, Indiana, Officer Garner overheard yelling coming from inside the plexiglass bus shelter. For a few minutes, Officer Garner observed as Morgan slept on the shelter's bench while Morgan's brother yelled for him to wake up. Having become “concerned for the welfare” of Morgan, Officer Garner, who was dressed in his IMPD uniform, exited his IMPD patrol vehicle and approached the men. (Transcript p. 10). At the time, Morgan and his brother were the only two individuals occupying the bus shelter. As Officer Garner entered the shelter, he detected the odor of alcohol, and Morgan's brother explained to Officer Garner that “he was trying to awake his brother.” (Tr. p. 12). Officer Garner tapped Morgan's shoulder, to which Morgan, who is diagnosed as suffering from sleep apnea, “raised his head up, looked at [Officer Garner], and said, ‘Get off of me.’ ” (Tr. p. 13). Morgan dropped his head back down, and Officer Garner informed him that he needed to vacate the bus shelter.

After three or four requests from Officer Garner that Morgan exit the shelter, Morgan, who “seemed very agitated” and “angry in [ ] demeanor,” eventually stood up. (Tr. p. 14). As Morgan stood, Officer Garner discerned that the odor of alcohol was “emitting from [Morgan's] breath and body.” (Tr. p. 14). Officer Garner also observed that Morgan's eyes were bloodshot and glassy, and “Morgan was unsteady on his feet ... he wasn't stumbling but he was swaying from side to side.” (Tr. p. 14). Believing Morgan to be intoxicated, “coupled with the fact that ... his behavior was annoying,” Officer Garner placed Morgan under arrest and escorted him to the patrol vehicle to complete the arrest paperwork and conduct a search incident to arrest. (Tr. p. 15). During this time, Morgan “continued to yell and bring undue noise to himself and attention to himself, all the way across the street and at [Officer Garner's] vehicle” and asked Officer Garner if he was “happy with [himself] for locking a brother up[.]” (Tr. pp. 28–29). Officer Garner provided Morgan with multiple warnings “to stop making unreasonable noise and yelling[,]” but Morgan “just continued on this path of saying that he didn't do anything wrong, just very loud and very agitated.” (Tr. pp. 28–29). While waiting for a police vehicle to arrive to transport Morgan, Morgan—erroneously believing that he and Officer Garner had been classmates—told Officer Garner “that he was going to kick [his] ass like he did in high school.” (Tr. p. 30).

The same day, the State filed an Information charging Morgan with Count I, intimidation, a Class D felony, I.C. § 35–45–2–1(b); Count II, public intoxication, a Class B misdemeanor, I.C. § 7.1–5–1–3; and Count III, disorderly conduct, a Class B misdemeanor, I.C. § 35–45–1–3(a). Morgan waived his right to a jury trial, and on April 4, 2013, the trial court conducted a bench trial. During the trial, Morgan's counsel moved “to suppress any observations [made] subsequent to the arrest of [Morgan,]” arguing that the recently enacted public intoxication statute, “when referencing annoying behavior, is not meant to refer to the officer himself.” (Tr. p. 16). The trial court denied Morgan's motion to suppress. Shortly thereafter, Morgan renewed his motion to suppress, this time arguing that Officer Garner identified Morgan's refusal to leave the bus shelter as the sole basis for finding his behavior annoying, and the legislature could not have intended to expand the statute such that a police officer could make an arrest for any behavior he or she deems to be annoying. In denying Morgan's renewed suppression motion, the trial court stated, “As I picture ... a scene of somebody passed out, had to be brought to numerous times, who is unsteady on [his] feet with alcohol on [his] breath, I find that this [is] enough to state reasonably that it is annoying.” (Tr. p. 27).

After the State rested its case-in-chief, Morgan moved to dismiss the charges for public intoxication and intimidation pursuant to Indiana Trial Rule 41(B). Morgan argued that the public intoxication statute is vague and thus contrary to both the United States Constitution and the Indiana Constitution. The trial court denied Morgan's motion to dismiss with respect to public intoxication because “the proper motion is a pre-trial motion to dismiss and ... the Attorney General needs to be on notice.” (Tr. p. 40). However, the trial court granted Morgan's motion to dismiss Count I, intimidation, because the State had charged Morgan under the wrong portion of the statute. At the close of the evidence, the trial court entered a guilty verdict as to Counts II and III, public intoxication and disorderly conduct. Immediately thereafter, the trial court sentenced Morgan to two concurrent sentences of 180 days, with sixteen days executed and 164 days suspended to probation.

Morgan now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION

I. Constitutionality of Public Intoxication Statute

Morgan claims that Indiana Code section 7.1–5–1–3, which states that it is a Class B misdemeanor if an individual is intoxicated while in a public place and “harasses, annoys, or alarms another person[,]” is unconstitutionally vague. I.C. § 7.1–5–1–3(a)(4). Specifically, Morgan argues that “the statute fails to define ‘annoys,’ and there is no objective standard for evaluating what ‘annoys' ” constitutes. (Appellant's Br. p. 7). Morgan also contends that the statute encourages arbitrary and discriminatory enforcement. In response, the State contends that Morgan has waived the issue on appeal by failing to challenge the statute's constitutionality through a pre-trial motion to dismiss.

A. Waiver

In general, a party's “failure to file a proper motion to dismiss raising a constitutional challenge to a criminal statute waives the issue on appeal.” Lee v. State, 973 N.E.2d 1207, 1209 (Ind.Ct.App.2012), trans. denied. Yet, even in cases where the defendant has failed to file the necessary motion to dismiss, Indiana's appellate courts have, at times, considered claims that a statute is unconstitutional. Baumgartner v. State, 891 N.E.2d 1131, 1136 (Ind.Ct.App.2008). In fact, our supreme court has previously determined that “the constitutionality of a statute may be raised at any stage of the proceeding.” Morse v. State, 593 N.E.2d 194, 197 (Ind.1992).

In this case, Morgan did not file a motion to dismiss twenty days prior to the omnibus date, as required by Indiana Code section 35–34–1–4(a)(1), (b) and section 35–34–1–6(a)(3). He did, however, move for dismissal during the bench trial and cited authority in support of his argument that the statute is unconstitutionally vague. See Adams v. State, 804 N.E.2d 1169, 1172 (Ind.Ct.App.2004) (finding defendant waived constitutional challenge where he “failed to file a motion to dismiss, and he did not object to the constitutionality of the statute at trial”). Accordingly, we elect to address the merits of Morgan's claim.

B. Vagueness

Whether a statute is unconstitutional is a question of law, which we review de novo. Lee, 973 N.E.2d at 1209. When considering a statute's validity, we begin with a presumption that it is constitutional. Price v. State, 911 N.E.2d 716, 719 (Ind.Ct.App.2009), trans. denied. The defendant bears the burden of rebutting this presumption, and we will resolve all doubts in favor of the statute's constitutionality. Duncan v. State, 975 N.E.2d 838, 844 (Ind.Ct.App.2012).

In 2012, the General Assembly amended Indiana's public intoxication statute, which now provides that

it is a Class B misdemeanor for a person to be in a public place or a place of public resort in a state of intoxication caused by the person's use of alcohol or a controlled substance ... if the person:

(1) endangers the person's life;

(2) endangers the life of another person;

(3) breaches the peace or is in imminent danger of breaching the peace; or

(4) harasses, annoys, or alarms another person.

I.C. § 7.1–5–1–3(a). Due process principles advise that a penal statute is unconstitutionally vague if it fails to clearly define what conduct is prohibited. Weideman v. State, 890 N.E.2d 28, 31 (Ind.Ct.App.2008). Morgan contends that “[t]he public intoxication statute is void for vagueness because the term ‘annoys' criminalizes behavior depending on the subjective sensitivities of each individual, and it fails to provide sufficiently definite warning as to the proscribed conduct when measured by common understanding.” (Appellant's Br. p. 6). In turn, the State argues that

[a]ny reasonable person is on notice under this statute that intoxicated annoyance of others in public is prohibited conduct. A person of ordinary intelligence certainly would...